This article is primarily about jury punishment for DWI first offense misdemeanors. Some of the information applies to other jury punishment situations as well, but please keep the scope of this material in mind as you consider these suggestions and strategies.
DWI defendants, in general, are some of the nicest criminal defendants you will ever represent. If your DWI defendant is a nice person, the jury will reward them with a minimum-type punishment if you prepare and present the case properly.
I’ve done jury punishment in probably 120 misdemeanor jury trials, most of them in Dallas County. I’ve also done jury punishment in Collin, Denton, Tarrant, and Rockwall counties. In my experience, you should almost always go to the jury for punishment if it’s a DWI first offense, there were no injuries, and your client was reasonably cooperative with the police. And as you surely must know, it is also beneficial if your client is attractive, and young. A light jury punishment is almost a slam dunk if your client is in the “helping” professions (teacher, firefighter, nurse), has a reasonable excuse for the DWI (I had just left my mother’s funeral three hours earlier), or is a single parent of a young child.
Don’t worry about super high BAC levels, open containers, accidents, or admissions about being drunk. If it’s a first offense, no injuries, and a cooperative defendant, you should do fine on jury punishment!
Step One: Convince Yourself That It Can Be Done
Before you try a jury punishment case, do some preparation, and do some preliminary research: After every DWI trial you see (whether it’s yours or someone else’s), start asking the jurors what punishment they would have assessed if it was up to them. Make sure you ask them specifically what their punishment would have been if probation wasn’t an option. This will start to give you some idea of what punishments jurors think are appropriate for DWI first offense cases. About half of the DWI jurors I ask this question respond with “I wouldn’t have given any jail time.” And please remember that this is the opinion of these jurors without having been given a well-prepared defense jury punishment presentation. With a good punishment presentation, those verdicts will be even better for your clients.
There is a definite art to jury punishment. But it’s not at all difficult, and anyone can learn how to do it. It is a big mistake, however, to try jury punishment without adequate advanced preparation. It can be a disaster for the unprepared! The system I have developed is based upon logic and common sense, and that’s why it works almost every time (unless you have an irrational jury, which is rare, but it can happen). A good jury punishment presentation can be very frustrating to the prosecutors because there just isn’t much they can do about it.
Step Two: Convincing Your Client to Go to the Jury
Of course, before you’ll ever be able to do a DWI misdemeanor jury punishment, you’ll have to convince your client to do it! This is by far the hardest part of doing jury punishment on a first offense DWI! You really have to convince your clients that it is safe to do. I spend 20 or 30 minutes on the topic, and explain in great detail everything about it, including how I do it, how juries think about it, the types of verdicts I usually see, and especially how much probation actually costs both in time and in money. I explain all of the standard conditions of probation. Then I explain how doing jail time can save them about $2,000 or so in hard dollars and over 100 hours of their time. I explain that in my experience, most DWI first offense jail sentences are one weekend or less.
You must file for jury punishment in writing prior to the start of jury selection. No particular form is needed. You can simply write “The defendant elects the jury to assess his sentence,” and have it signed by the defendant and defense counsel. If your goal is a short jail sentence, do not file a sworn application for probation. TCCP 42.12 Sec. 4(e) prevents a jury from giving probation if the sworn application is not filed before the trial begins, and later proven up.
Be alert to the fact that the judge may always grant probation in a misdemeanor case, even if you go to the jury for punishment, and even if you do not file a sworn application. TCCP 42.12 Sec. 3(a). Some judges don’t know that, and you may not want to tell them! On the other hand, theoretically you could get a three-day sentence from the jury and have the judge probate it for two years, which is not at all a pleasant result for your client!
If a jury goes crazy on you and gives your client 180 days on a first offense DWI, remember that the judge can still come to your rescue because he or she retains the option of probating that sentence for your client.
When I first started doing DWI first offense jury punishment, some judges cautioned that they might probate any jail sentence that they thought was inappropriately short. Now, after dozens of jury sentences of 0 days, 3 days, and 5 days, the judges have come to believe that single-digit sentences reflect the true informed will of the jury community.
Like most every other thing about a DWI jury trial, jury selection is critical. During jury selection you want to accomplish three things: 1) Get rid of all of the “he could have killed somebody” thinking, 2) establish that every juror could give the minimum punishment if the facts are appropriate (striking for cause every juror who could not), and 3) give the jurors a vivid example of a “bad” first-offense misdemeanor DWI.
Eliminating “He Could Have Killed Someone”
Perhaps the most important part of the whole jury punishment strategy is getting rid of “he could have killed someone” thinking in voir dire. My favorite way to accomplish this is to use a failure to signal a lane change (FSLC) example. An FSLC offense is so common that most jurors probably committed it that day on their way to jury duty. Ask and/or lead the jurors through the following set of questions: Is it possible while you are driving this week that you at least once failed to signal a lane change? <yes> If you fail to signal a lane change, might that cause an accident? <yes> Under the right circumstances, could that accident actually kill someone? <yes> So if you get a ticket tonight on your way home from court for not signaling a lane change, should you be punished as if you killed someone? <no> OK. Why not?
I’ve never had a jury panel not follow the logic. They have always concluded that a defendant shouldn’t be treated like they killed someone when they didn’t. As soon as you get them to acknowledge that point, emphasize it, then quickly move on: “Of course not! In this country we don’t punish people for what didn’t happen in their case. That would be crazy! In this country, we make the punishment fit the actual facts of that case, not the facts of some hypothetical case. Right? OK. Next topic . . .”
I’ve twice had jurors tell me that they actually yelled at other jurors who tried to bring up “he could have killed somebody” in deliberations after I have prepped them properly in jury selection using this approach. It is amazing how well this tactic works.
Making Sure Every Juror Will Consider the Statutory Minimum
Next, you want to make sure that every juror can assess the minimum punishment. DO NOT simply ask them if they could consider the full range of punishment! You don’t want six people who can consider the full range of punishment! You want six people who will consider 0 days and $0! If they can’t, you get to strike them for cause! This is so important that I generally ask at least the first 18 jurors individually if they could consider the minimum of 0/0 (or 72 hours/$0 for the Class B offenses).
If you ask the entire panel as a whole, “Can you all consider the full range of punishment,” maybe one or two will disqualify themselves, but more likely than not, nobody will. If you ask the panel as a whole, “Could you consider 0 days/$0?” maybe 2 or 3 will disqualify themselves. But if you ask 30 panel members individually, you might disqualify 8 or 10 of them! Then you’ll end up with 20 jurors who have all specifically told you that they can consider assessing 0 days and $0! (And that’s exactly what they are likely to do after you follow the rest of the strategy!)
Introducing an Example of a Really Bad DWI First Offense
The last thing to do in jury selection is provide an example of a bad DWI first offense (no SBI) misdemeanor. Why? Because your guy is then going to look like a saint in comparison! Your jurors aren’t going to want to punish him; they are going to want to pin a merit badge on him!
Here is one way to introduce a DWI with really bad facts: “Jurors, I’ve heard some people say ‘A DWI is a DWI, and they should all be punished the same for a first offense.’ Does anyone here feel that way? OK, well, I’d like to ask you if anything in the following two examples would make you feel any differently.
“Defendant number one: Instead of stopping for the police immediately, he led them on a 20-minute high-speed chase. He was driving over 120 mph the wrong way on I-35E. Several vehicles had minor accidents avoiding him. He didn’t stop until he finally wrecked out. There was an open container of Jack Daniels on the seat next to him. He was foul-mouthed and abusive to the arresting officers. His BAC was over four times the legal limit. His criminal record ran over three pages long (but he had no prior DWI cases!)
“Defendant number two was stopped for a taillight being out. He pulled over immediately and was fully cooperative. His BAC was just barely over the legal limit. And he had no criminal record whatsoever. Does anyone think these two cases should be punished exactly the same?”
Introducing Collateral Consequences During July Selection
Consider using questions like this if you don’t plan on having your client testify during punishment:
Could a DWI cost someone their job? Could it cost someone their driver’s license? With no license and no job, could someone lose their home? Could it prevent them from entering a prestigious college or med school? Could it cost somebody in a child custody dispute? “Sure! There must be a thousand ways a DWI conviction can hurt you in life besides just a fine of $2,000 and 180 days in jail. The fine and jail time are only the tip of the iceberg!”
Arresting Officer Cross-Examination
In cross-examination of the arresting officer, you want to get him to acknowledge that your client was polite and cooperative, if possible. You also want the officer to acknowledge that some DWI defendants do everything you mentioned in your “bad DWI” example (20-minute police chase, 120 mph, wrong way on a freeway, open container, etc.).
Should Your Client Testify at Punishment?
You don’t have to put your client on the stand for jury punishment, but if they are decent communicators and comfortable with it, it can really help. The idea is to expose the jury to how horrible the entire DWI experience is, from initial stop, to arrest, to spending the night in jail, to posting bond, to hiring a lawyer, to going to court, etc. If you present it properly, the jury will generally decide that your client has already suffered enough and doesn’t need any additional punishment.
If possible, I like my client to testify along the following lines: “It was stupid. I know better than to drink and drive. It will never happen again.” I also like to ask: “How many days of work could you miss without losing your job?” Most people can answer “I’m not sure, but probably seven days.” Chances are you will get a sentence shorter than that, because most right thinking jurors will not want someone to lose their job over a misdemeanor DWI.
If your client is not going to testify at punishment, you can cover some of the same topics in jury selection, or try to sneak them in during punishment argument.
My punishment argument usually goes something like this:
“Jimmy (my client) and I are very disappointed to have reached the punishment stage of this case. To be honest, we had very much hoped for an acquittal. But we knew that a guilty verdict was a possibility. Having found Jimmy guilty, you are now obligated to sentence him appropriately. You must sentence him to jail time, and assess a fine. The jail time can be 0 days (or 72 hours for a class B), and the fine can be $0. In case it is unclear, the jury may not assess probation in this case.
“As far as the jail time, well, there is a reason that we have jails. Jails are where we keep dangerous people. Jails are very costly, of course, and we taxpayers have to pay to construct them, to maintain them, and to feed and house the inmates inside of them. I have heard that it costs over $2,000 a month to house an inmate. That’s a lot of money. If you believe that the State has proven that Jimmy poses a danger to you, your family, your neighbors, or the other citizens of Dallas County, it would make good sense to lock Jimmy up for a couple of weeks or so. But if you don’t think he is a danger, you’d just be wasting taxpayer money by sending him to jail. And it probably wouldn’t accomplish anything except perhaps costing Jimmy his job.
“As far as a fine, you have already heard that this DWI has already cost Jimmy well over $10,000, and that he will have to pay surcharges and increased auto insurance premiums in the future. Simply put, Jimmy has already paid enough financially, and emotionally. He has been put through the ringer.
“I’m asking you to set Jimmy’s jail sentence at five days or less. That is a very reasonable jail sentence under the facts of this particular case. Please don’t set his sentence as a number of hours because that seems to confuse people at the jail. I don’t want you to sentence him to 72 hours and have the jail people think that you meant 72 days. I’ve seen stranger things happen at that jail. And I’m asking that you don’t take any more money out of Jimmy’s pocket. He has paid enough. Hopefully, he won’t lose his job over this.
“Thank you so much for your time and close attention to this case.
“By your guilty verdict you have already shown that you can be tough. Now it’s time to show that you can also be fair.”