DUI & DWIClients’ ChoiceAward 2012-2017

The Anatomy of a DUI Trial

The Anatomy of a DUI Trial

Are you or do you know someone who's facing a DUI trial? Find out step-by-step what goes down — from picking a jury to waiting for the final verdict. 


Episode Transcript

Dillon
Well, here we are the last holiday weekend of summertime. Before we go any farther, our local DUI attorney Jonathan Rands is in-studio this morning, so a little PSA, like we do every holiday, don't party too hardy, right? Good morning to you by the way. 

Jonathan
Normally you'd say don't drink and drive, right? But I think with the legalization of marijuana that seems to embrace your theory of partying too hard. Don't consume and get behind the wheel of a vehicle if you want to avoid a DUI, whether it's THC, brownies —

Dillon
Yeah, it could be a lot of things for a lot of different reasons. 

Jonathan
Or alcohol. Or even medication for that matter. I always just like people to be reminded to be aware. I think if you're reminded of the state of the law, if you're aware of what can happen, you can make a good decision based upon that.

Dillon
Thanks for coming in by the way here in the middle of this long weekend. I appreciate that tomorrow being labor day, of course. And happy labor day a day early. Hopefully I have most of the day off tomorrow. If everything works out. You've been in-trial a lot though Jonathon. You've been busy.

Jonathan
I have.

Dillon
What's going on here?

Jonathan
Well you know there just comes a point in any practice where you go through a period of time where generally cases get to the point, and usually they go in groups. Meaning you'll get a cluster of cases, if you will, where they're just not going to be resolved for one reason or another —

Dillon
Is this when it rains it pours kind of phenomenon?

Jonathan
Kind of. At the same the time, there was a legal issue that effective four, five, six different cases. And so they were held up, and then for that legal issue to resolve itself one way or another. And ultimately what happens after that is they're the oldest cases on the docket, if you will. And oldest cases go first unless there's some reason not to try them. I've been in trial, and preparing for trial a lot. But ultimately in the last two weeks I've only been in one trial. They just happen to last close to four days.

And then prepared for the next round of trials but the day of or the day before they sort of evaporated. So the preparation happens, cause you just have to do it. Interesting enough, if you work really hard at getting a case to go to trial, Murphy's law seems to be it won't happen when you expect it to. But if you do nothing, and just think, "Ah it'll just go away," you end up in trial ill prepared. 

Dillon
You mentioned four days. What's an average trial, I guess?

Jonathan
An average breath test case is about two days. So four days is a little longer. And it's really more like three and a half days. But it morphs into what feels four days. We're supposed to start on a Monday, and for scheduling reasons it didn't. It started on a Tuesday, and ultimately we get a verdict by 4:30 Thursday afternoon. And so you're going to the five o'clock our. So it just feels a little bit longer than that. It brings up a good question, if you will, because a lot of people think that just a regular old court date is a trial. I get a question a lot of times from my clients in terms of what'll happen at the trial on Monday or Tuesday? When really it's a pretrial date.

And so I think the bulk of people don't really understand what a trial is or what it involves. The short version is a heck of a lot of work. But the more you do the better you get at it, the less preparation you have to do on certain aspects. But you always have to do preparation if you're going to do the best job that you possibly can. Trial has several parts to it. You start off initially by getting the courtroom, first of all. And locally here, we jockey for position if you will, on a Thursday afternoon calendar. And all of the cases that are set for trial for Monday or Tuesday the following week, the priorities determined.

But we really only have two courtrooms. For last Thursday, I think there was 12 cases that were set for one courtroom on a Monday.

Dillon
Good luck.

Jonathan
The other day, same courtroom, other day, also had about six or seven cases. And if the oldest case goes first and it's going to be a two or three day trial, that means that the cases for Tuesday don't necessarily get the priority because the courtroom's taken up. So it's an interesting juggling act to watch. And the court is responsible for making sure that a person goes to trial with a speedy trial and organizing that. But at the same time, the prosecutors have a hand in it as well, because their priority is for taking care of trials where the person is awaiting trial, where they're in custody in the jail; so they have a shorter speedy trial period. Only 60 days versus a 90 day period.

So for clients that are free, they don't take priority, even though they might have an older case 'cause somebody's in custody awaiting trial. 

Dillon
And you say speedy trial. You're talking about a constitutional right that we have to a speedy trial, right? Or is this —

Jonathan
That's a show unto itself, 'cause —

Dillon
Yeah, I think you've talked about it before.

Jonathan
You do have a right to a speedy trial, but that right can be extended and every time we ask for more time to do investigation and work and negotiation on cases, we restart the speedy trial rule. So you can restart it forever. I mean I have some cases that are two and a half years old.

Dillon
Wow.

Jonathan
And then there just comes a point where you no longer restart it. You say, "Okay, I'm ready. All the other stuff is ready." And then you can really get a hard and fast 90 day rule; except you come to the court congestion rule that now says well if court congestion is the problem, then you can extend speedy trial by another 30 days, by another 30 days indefinitely as long as you got court congestion. So constitutional right, yes. Is it alive and well? No. It's one that get moved around quite a bit.

Dillon
Well my inner scam artist, which often comes out during this program by the way, we're talking with Jonathon Rands right now here on the legal docket. Dillon Honcoop here on KGMI. The inner scam artist says, "Well can't you just keep delaying and delaying forever, and then even if you're guilty as heck and you did something terrible, I mean fill in the blank for what kind of case we're talking about, ultimately you could avoid ever going to prison for?" Obviously there has to be some end point here. I just think the state wants a speedy trial sometimes too, right?

Jonathan
Everybody's invested in a timely trial, let's call it that. But you're always invested in going to trial when the case is absolutely ready. When preliminary legal issues are out of the way. And so the court will grant leave to go beyond speedy trial frequently when there's a good reason to do so. But if you don't have a good reason, or if you haven't exercised due diligence along the way, there'll come a point where the court just says I'm responsible for making sure that, A, the case goes to trial in the timely manner. And that's to the benefit of the state and the citizens of Washington, as well as the defendant; because while day is frequently the defendant's friend, because memories fade, evidence gets disappeared and things of that nature, closer is always important for somebody accused of a crime as well.

Dillon
So you can't just make stuff up and keep delaying it forever.

Jonathan
You've been watching the Lincoln Lawyer where he's waiting for Mr. Green to show up.

Dillon
But ultimately, what you're saying is it's the judges call. That's one of the things that the judge would do, right? To oversee how the whole case is moving forward?

Jonathan
Right. I mean you can think of the judge as a referee. Anytime that two parties that are opposing each other are in agreement on something happening, it's likely that the judge will say, "Okay, the parties are adverse. But you're agreeing. It seems like a good reason." But at other times when we're at odds, for instance, we're ready to go to trial, defense is ready to go to trial and the state says, "I'm not really ready to go to trial. I've got an officer that's not available because he's training." Well then the judge has to sort of juggle and look at the case law; and the case law says if an officer would be forced into trial when he's got a preplanned vacation, then that would mean that an officer would never be able to take a vacation. And it is the job for them. So those types of considerations will dictate whether the case goes to trial or not.

Likewise, a defendant is entitled to have an expert testify and help them in their defense. And if an expert's schedule is in conflict with the court schedule, then that would be a reason to ask the court to not have the trial on that particular day because of ... so it works both ways. But yeah, in the end it is the judge that says, "Nope. I've looked at everything. And this case has priority and you're going to trial and you should've done your due diligence beforehand or not." 

And the younger the case, the more likely it is that you get the ability to extend speedy trial as long as your client's in favor of it.

Dillon
A couple minutes ago you mentioned the difference between pre-trial hearings, all these different court days people can have. They're appearing in court, they're appearing before the judge, the prosecution may be there. The defense representation may be there. But those things are not the trial. So what's the difference? What marks that point where, okay we're all in this room together and this is the trial. What's the significance of that?

Jonathan
So a trial, it is the procedure where the state presents evidence and tries to or puts on their case. And in the DUI world, their case is usually comprised of two witnesses. And the trial basically is, I mean the beginning of a trial is you pick a jury. You pick a jury first before you ever put on evidence.

Dillon
So really that's part of the trial.

Jonathan
Yeah. It is phase one, if you will, of the trial. You get that jury summons in the mail. That means that you're going to be potentially participating in the first phase of a trial. And that is that a whole bunch of people are summonsed in. You watch a video. You are told what the jury system is and what your role in that is going to be. Basically you're educated for about an hour. It's your training to be juror. You are then brought up to the courtroom. For district court, we usually have between 21 and 31 people as the pool.

You're assigned a number randomly, you sit down and then the judge comes out and as a juror, when you come into the courtroom, all the parties are sitting there ready. The judge basically introduces the case and says, "You're going to potentially be on this case and the role here is for us to talk to you and find out who would be a fair juror or the fairest jury possible. And the rules are that the state prosecutor gets to ask you some questions and then the defense attorney, whoever it is, gets to ask you some questions. And please answer them honestly," and that's kind of a summery of it.

You spend about an hour. The judge usually likes to give a time limit of 20 to 30 minutes of each side talking to those people. But first, before we do that, the judge asks a series of general questions. By show of hands you answer them yes or no. And that sort of gives us a feel for what we need to talk about. And sometimes people will not answer the questions as you think that they might or they should until you get dialogue going.

And then people start having thoughts and feelings come to them. And in the DUI world, one of the bigger question is have any of you ever been close to a friend or relative that's gone through this? And the show of hands is usually fairly amazing. It's almost universal that every single person knows somebody or has a friend or family member that has gone through this. And from that, that's where you sometimes get people saying things along the line of, "I was in the car with a friend and we were hit by somebody that was DUI." Or, "I lost a friend to a DUI accident and it was very traumatize to me." And that's usually where you find that these people have very strong feelings, just about the notion of DUI in general.

And the purpose to all of this, it's called void year, by the way, which means to speak the truth. The purpose to all of this is to really find out if anybody in the potential juror pool has feelings so strong that they can't put them aside and just listen to what comes next in phase two, if you will. And ultimately what you end up doing is, and this is where one phase of the trial can take longer and more for the next. For instance, we started at nine o'clock on my trial last week. And we didn't have a jury selected until 11:30. And even though we have 20 minutes-ish, they take on a life of their own. And the judge will never cut us off from learning about people or from having a dialogue that seems to be important.

And sometimes it just has this free flow to it. And I think the longer they go, the more comfortable people are answering questions. The more comfortable people are in learning that it's okay to say things that they think they might not feel okay when you first walk into that room. But in other courts, I've had it where it's 20 minutes each side, and then an additional five minute follow up and you have a jury picked in an hour. That is really a judicial preference, if you will. But it is one of the things that can 'cause the jury. And anytime you do a jury trial versus a bench trial, you've always got the consideration of the jury's comfort, their time spent, things of that.

So we get a jury picked by 11:30, send them out the door for lunch, because we still have some other motions and things to deal with. In this particular trial last week, I think we went close to one o'clock. We worked through lunch with the issues and the commotions [en lemonae 00:14:20] or just getting rid of issues that won't raise up in front of a jury; 'cause there are things that a jury is not entitled to hear, or shouldn't hear because they're too prejudicial. There are things that we know about, but there's also things that know an officer saw, heard or smell, but may not necessarily be appropriately put in front of a jury.

And so there are cases where we've gotta spend an considerable amount of time in terms of what does the law say he can say and what's the judges ruling going to be on that? So in this instance, we worked til one o'clock. And the judge says, "You're entitled to a lunch break. So come back at 1:45." But previously we told the jury to come back at 1:30. And so there's this delay. And so once you a get a jury picked, or more importantly, a jury is sort of deselected; meaning —

Dillon
You whittle it down basically.

Jonathan
Well yeah, I mean your jury is your first six people unless those first six people are removed by right, three per side. Which means that you've got now 12 people of the first six, 'cause you expand out. You just move over, if you will, in the numbering system. Sort of like the first six that aren't challenges, really, are your jurors. Everybody else is released. And so it's hard to get passed juror number 15, 16 or 17 who are randomly given those numbers when they sit down, by the way. But there are instances where there are so many people challenged for 'cause that you don't necessarily even have six people.

I've seen that happen before where a very small number of people came in like a lot were summons but only 20 showed up. And of that 20, only five were found to be unbiased to the point where both sides could agree or both sides exercised their challenges, and next thing you know you've got five people and you need six, sometimes seven. You want an alternate if it's a long jury. So that can be a process that takes longer than you'd expect.

Dillon
Jonathon Rands, our guest right now here on the Legal Docket on KGMI, I'm Dillon Honcoop, your host. Jonathon practices DUI law and defense of DUI clients here in Whatcom County. This is what he specializes in. This is what he's devoted his life to, and he's an expert on these things as well. His practice is in Fairhaven. If you want to reach him, 360-306-8136 is the phone number. I'll repeat in a moment. His website is Jrandslaw.com. Rands, his last name is spelled Rands, very simply. So J, just the letter J, J-R-A-N-D-S-L-A-W, Jrandslaw.com; check out his website. 

A ton of useful information to study up on there. In fact, you could spend hours and hours and hours reading through his site. And you'd be a whole lot smarter on the other side, guaranteed if you read the whole thing. Especially on anything relating to DUI. More with Jonathon coming up with us here on the Legal Docket as we continue on this Labor Day weekend. Again, as I promised, the number 360-306-8136. Back in a moment.

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Dillon
So basically we've been defining what a trial is, versus what a trial is not. Jonathon Rands is our guest this hour on the Legal Docket. You've been talking about basically the first phase. People don't even think about it as the trial, but it is the trial,. It's choosing those jurors, getting the right people that both sides, the prosecution and the defense can agree on to be the overseers of the case and people who make a decision in the end, right?

Jonathan
Yeah. The appropriate term would be the tryer effect. So we're trying our case before them. They're the ones that decide guilt or innocence. They're the one that decide credibility of testimony. They're the ones that decide credibility, in most cases, breath testing or evidence in the form of testimony of being effected by alcohol and our drugs. So once that's done, the jury is given a break. They're taken into the back room.

Back room meaning they're sequestered, meaning they don't get to do any research. They're not sequestered in hotel rooms or things of that nature. But when they go in and out of the courtroom, they go in and out of the courtroom as group and they're in a room where they can't hear what's going on in the courtroom. And then what happens is there's an opening instruction that they're given and it basically is telling them what they need to do. You need to listen, pay attention. You've got a notepad. And what'll happen is the state will give an opening statement. The defense has an opportunity to give an opening statement or a reserve; and then the state will call witnesses.

And so an opening statement is where the state or the defendant, or both, but the state first, they get up and give a brief summary of what you're going to hear. And to be conservative and make sure that the case doesn't get testimony, you speak in generalities in terms of you're going to hear testimony from a police officer. He's going to tell you that he had contact with mister and missus defendant. He's going to tell you what he saw, smell, heard, what he did; and he's going to render an opinion. You're often going to hear from this wetness and this witness is going to tell you ...

You generally don't tell them exactly what they're going to hear in case the rules of evidence don't allow you to get your evidence in. For instance, you're going to hear that there's a breath test of a .16. That's dangerous because you can talk about the fact that a breath test was offered and you'll see it and hear it and make your own decisions. But to put the number out there, and then sometimes I've seen prosecutors says, "They're unable to lay the foundation in order to admit that ticket to the jury," and which case now they've heard a number but they've never seen a number in evidence and that becomes a problem.

Attorney gets an opportunity to make a opening statement. I generally reserve because the issues of primacy and recency. But if you don't reserve, you get to stand up next and say, "That's well and good but we're going to put on this case. And you're going to hear that but it's not going to come until afterward." And again, you speak in generalities. And then the first witness is called, and the state attorney asks questions, examines them on direct; and I get an opportunity cross-examine them. But I think we probably have to take —

Dillon
We gotta run the news. So here we are, following the timeline of a trial, a DUI trial in this case. And here we are. The trial's underway now. And we're going to find out next, what do you do then? As we continue on the Legal Docket. Jonathon Rands with us for the hour here this morning on your Labor Day weekend. Stay with us on KGMI.

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Dillon
So our hypothetical DUI trial is underway. The jury has been selected. The opening statements have been made by the prosecution by the defense, and the first witness has been called. Jonathon Rands is our guest, by the way, in studio for the hour here on the Legal Docket. Welcome back. I'm Dillon Hankcoof. Jonathon Rands practices DUI law here locally. DUI defense attorney based in Fairhaven. You've been in several trials of late. Been a busy guy in your practice and things that are going on. 

And we're talking through, okay what is a trial? And I hear this often times in the news business here. We're covering stuff earlier on, and then we'll cover it later when a decision is made. It's hard to cover every step of the way through the middle of that legal process. But when someone is arrested and they make their first appearance. And people will refer to that as they're on trial. No, no. So that's not the trial, but we're talking about the actual trial part in front of a jury and in front of a judge.

Jonathan
Yep.

Dillon
What happens next?

Jonathan
Well also keep in mind, there are rules. So there's what's called —

Dillon
Hate those rules. I screw everything up.

Jonathan
So one of the things that you also spend a considerable amount of time on is reminding each party what the rules are. And at the same time, the judge is, again, the referee and responsible for enforcing those rules. But we're in an adversarial process and you are responsible for knowing what the rules are and knowing what a potential, I'm going to call it a violation, but I'm not using it in a bad way. What a potential violation of those rules are. And those are call the objections. 

And the jury's even instructed on this that attorneys have a duty to object; because if something's not being done according to the rules, well then you have to bring it to the court's attention and make sure that it's enforced or it's deemed not a rule violation, in which case an objection is overruled.

Dillon
Good to mention this objection. People are familiar with that. I mean whether it's Perry Mason or Matlock, or Law and Order, they've been hearing these things on these fake TV ... yeah. Objection your honor. That's, whatever. But you're actually laying out, well what does it mean when they're doing that?

Jonathan
Yeah.

Dillon
And you can't just do that for whatever reason.

Jonathan
No. I mean the purpose of it, an objection has to be founded. There has to be a good faith belief that something that is objectionable has happened. And it might be something as simple as the form of the question, meaning so when you are presenting a witness, when you have subpoenaed a witness and the witness in fact, for lack of a better word, your witness, you are to conduct a direct examination. A direct examination is opposed to a cross examination by not asking leading questions. You have to ask open ended questions. You have to have the witness tell their story without leading them to the conclusion.

The different being cross examination, leading question is when did you stop beating this person? It infers that the beating occurred, right? A direct question would be what happened? Well I saw a beating. Okay, well tell me about that. And so sometimes the examination can be as simple as a party is leading their witness and that's not permitted under the court rules, except in certain circumstances where it makes sense to lead your witness so that you get through some of the boring intricacies and it's for foundational purposes; usually on expert witnesses, you would do a leading question such as you graduated from university. What date? So it's just getting them through it, so the information gets done and over with, and then you can get to the meat of things.

And so sometimes you can object that it's leading. Truly, it is leading but the court might over rule it because they know that they're trying to save time. Interestingly enough, by you saying that we're objectionable because we're taking too much time, that objection is taking up time in order to be overruled. And the loop continues.

And other times, and keep in mind, the rules of evidence and the objections that can be made, I don't have them counted but there's probably somewhere around 78 to 85.

Dillon
Wow. A lot of things to keep track of.

Jonathan
You know them when you hear them. I can't sit here and list them all for you. But if I'm watching something, and my wife hates watching legal movies with me because I will sit there and I'll say, "This is an objection," or, "This is objectionable, at least under our system." Every state's a little bit different. But you'll know it when you see it after enough practice. But at the same time, there's objections that don't happen that often, or there's a basis for them. And I actually have a this book where on the front side of it, on the back side of it, are all the common objections; and then on the back side it's the more obscure objections.

And I always refresh my memory, because sometimes it's just to the form of the question. And that can be important in certain instances. But most of the time, the objections are leading and the objections are foundation. Relevance is the objection. And when you make an objection, the rules require you to make it succinct. You're supposed to do what are called non-speaking objections. Meaning, you don't make an argument about what's going wrong, because a jury might hear things that they're not supposed to. And that's sort of explained to the jury in terms of don't take notice of what they say, because we're speaking another language and we're just doing it for your own good, essentially.

So objections are important but at the same time, attorneys that know the rules know how to avoid drawing objections.

Dillon
Does a trial ever happen with no objections?

Jonathan
If you're a brand new attorney, absolutely. I remember, I think my first trial, I don't think I objected once because trial work, it happens like this. It happens fast, and the other thing about an objection is it has to be timely. If a question is asked, and it's answered, and then they ask another question and you've just thought of what the objection was to the first one —

Dillon
That would be me.

Jonathan
And you say, "Objection," the court would say, "On what basis?" And then it would be overruled as untimely because we've already moved on. And so sometimes when you're preparing your trial, you might know that this is objectionable, but you also might know that if you ask the questions fast enough, you get the answer you're looking for. And the objection might be drawn, but it would be ultimately. And so the answer would stand.

These are all the things that you just learn and you pick up as you do trial work.

Dillon
This is why'd I'd never do what you do. I can't think that fast. 

Jonathan
Well, it's also what makes ... I tell all my clients that I go trial with, I say, "Trial for me is fun." And I don't say that pejoratively. This is your life. It's important to you. But this it he part of the practice that people go to law school thinking they're goin to do. Trial practice is incredible stressful. It's incredibly fast paced. It takes a lot of preparation. You need to know your case inside and out, backwards and forwards. I write out all of my cross examinations, but by the time I've done it, I've memorized almost everything.

And so while I do use a notepad, at the same time, I've structured everything to the point that sometimes I just look at it every once in a while and I'll actually have gone a little further than I thought I could just from doing it from memory or from doing it by knowing the case. And so that's where preparation really comes in is knowing what the witness is going to say, knowing what the witness might want to say that's objectionable, and I say this in terms of my practice where I've got a police report. The officer has written this. We've watched a video, perhaps in part, and waiting for the answer and making sure that the answer is within the rules is also part of it as well.

And so sometimes you'll see, I don't think you see it very often in legal dramas, but if you've watched people in court, you'll see an attorney sort of be listening and get ready to stand. And that's because we're literally on the edge of our seat waiting to make sure that something either happens that's supposed to, or something that isn't supposed to happen —

Dillon
'Cause the clock is ticking and you had to do it at just the right time. If you had all the time in the world, there could be all kinds of arguments made and different things done, and you'd probably never get a trial done, right?

Jonathan
Yeah.

Dillon
If there wasn't a time element to it. So it's like somebody doing a performance. It's like a race car driver getting in the car. They have certain challenges they have to do. You as a defense attorney, the clock is on. Things have to happen fast, and it's a performance. I mean it's science, and art, all at the same time.

Jonathan
Yeah, but I want to make sure that it's clear. It takes as long as it takes, right? We work from 9 to 4:30 in the courtroom generally. That's the work hours. That's the work day. And so you want to get certain amount accomplished, but time sort of almost disappears when you're in trial. I look over my shoulder at the clock every once in a while. And fortunately there's a clock at either ends of the court room and I can keep track of it. But most of the time, you're so engaged, you look up and an hour and a half has passed.

And there's natural breaks —

Dillon
But basically from what I'm hearing is it can take as long as it needs to if you're doing important stuff.

Jonathan
Yeah.

Dillon
And doing them in a timely fashion. It can't take as long it wants just because you're dragging your feet, la-di-da. Oh wait I want to go back and ... no, we're moving on because we did that.

Jonathan
Right. The state prosecutor will plan their case. They'll plan the questions and answers that they need to ask in order to prove their case. You generally don't ask questions just for the sake of asking questions, so yeah you will have a focused either direct or cross examination because there's important information that a jury needs to hear. There's important exhibits that a jury needs to see, but it's all working within the rules and using the rules appropriately. If you do it appropriately, you generally don't draw too many objections because you're within the rules.

Not doing it correctly, or missing information, is where things take a long time. For instance, in this particular trial, there was objections to foundation which meant that there was pieces of testimony missing before the next level of testimony could be given. And we spent a significant period of time outside the presence of the jury getting these pieces together so that we could go back, have the jury back in, and take less time. In doing that, I think on day two we excused the jury for the afternoon break at three o'clock; and then we didn't break. We kept going through, and ultimately ended at 4:30. Still weren't quite done.

Brought the jury back in and said, "You guys can go home now. See you bright and early at 9AM." Started the next morning where we left off. I think it was 10:30. Brought the jury in and said, "Alright, ask your next question." And that's just an example of necessary work, and the rules working for or against one party or the other.

Dillon
Well here we are, almost a quarter til 11, and we're in the middle of this trial. I don't want to run ourselves out of time, because I have a time factor too as broadcaster. And pretty soon, Regieve and Phil are going to show up and kick us out of here to do Aging Options. So where are we at in this trial? How do we move towards closing this up and actually getting a decision out of this jury?

Jonathan
Okay, so however many witnesses the state thinks they need in order to prove their case, that's how many they're going to call. You always need the stopping and arresting officer. In a breath test case, you need a breath test technician to come in and talk about the breath testing machine. The past case, we had two witnesses. It used to be that with the old breath test machine, you needed three witnesses. But you only need two now. 

So however long it takes to put on the direct evidence, the cross examination, that witness is up and down. Next witness, same thing. After that, the state's witnesses are done. I put on a case with one witness. It took as long as it took, and when we're both done, the state will rest when they no longer have any witnesses. And then the judge says, "Alright. How do you want to proceed Mr. Rands?" And sometimes, we don't put on witnesses, in which case we say we rest and then we give the jury jury instructions and away we go.

Other times, put on a witness or two or three, or however many the case requires. And the rules apply but in reverse. I ask non-leading questions and they ask cross-examination questions. When we're all said and done, the judge says, "Alright, anymore witnesses?" You say, "No, I rest." The state has the opportunity to recall a witness and put on what's called rebuttal testimony. Doesn't happen very often, but sometimes a expert for the defense will say something that they really want to answer; in which case you get a chance to rebut. And guess what? When they're done, you get a chance to rebut if you want to.

But it doesn't happen very often. So the next thing that happens when both parties have rested is the jury's generally excused, and we go through the jury instructions that they're going to be given. And the jury instructions, I mean you can call it phase three if you want. But first of all, there's universal instructions, there's instructions that are dedicated to every sort of crime. And it's our job to present the instructions that are necessary for each side. It's the judge's job to decide which instructions are going to be given, and there's actually, it's called the Washington Pattern Jury Instructions, or criminal instructions. And there's a whole panel of people, judges and lawyers that have spent time and energy reviewing jury instructions in every single type of case and say, "This is a jury instruction that we endorse."

And so because they're also reviewed by the supreme court, we generally are picking and choosing from a preselected list that has been endorsed, and then we give that jury instruction in a packet to the jury. In this last case, I think it was 14 instructions total. Some of them are three pages long. Others are two sentences long. The jury instructions are what the jury gets to guide their decisions. Again, it's rules for the jury. The jury gets the instructions read to them, and at the end of it, the judge will say, "Now turn your attention to the closing argument of the state prosecutor." State prosecutor will get up, and tell you everything that he told you, or she told you, that you were going to hear you heard and what it means.

I get an opportunity to give a closing statement. And then they get last word. They get to stand up and rebut, and again, give another closing statement, if you will. Because the statement has the proof beyond a reasonable doubt burden, they get to go first; they get to be heard last. Jury then gets a copy of those instructions that they were already read. So you read the jury instructions. You listen to closing argument. And they do that because a lot of times jurors ... I'm sorry, not jurors, but the defense attorney or state prosecutor or any attorney for that matter might highlight certain instructions that they think are particularly important. But then the jury is given a packet of instructions sent back to the jury room and said, "Take as long as it takes for you to decide. And here's the rules you play by and you have to unanimously agree on the burden of the proof beyond a reasonable doubt." 

Dillon
Let's wrap this up in just a moment. Quick timeout. Jonathon Rands, our guest this hour here on the Legal Docket on KGMI, I'm Dillon Honcoop. Jonathon Rand's practice is in Fairhaven, so he knows all the ins and outs specifically of defending DUI cases here in Whatcom County and in Northwest Washington. A few other neighboring counties from time to time as well, out in the islands a little bit.

Jonathan
That's where I am this week. There's another trial out there in San Juan County. So yeah.

Dillon
We'll be back in just a moment as we wrap up what happens then, awaiting the jury's big decision. We'll talk about it next.

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Dillon
Okay, so we've through this process. We're talking about trials this morning. Specifically DUI trials. Local DUI defense attorney, Jonathon Rands is our guest this hour. Dillon Honcoop with you on the Legal Docket. And we've talked about that part that is the trial. There was all this stuff that happens before the trial. Now there are things that happen after the trial, but here we've talked it through to the point where the jury has been sent out to deliberate, right?

Jonathan
Yep.

Dillon
What happens next?

Jonathan
It's kind of like labor. You wait —

Dillon
Pace up and down the hallways.

Jonathan
Yeah. That analogy only comes to mind because a good friend of mine who's a lawyer here in town, they just had their first daughter.

Dillon
Well congratulations to them.

Jonathan
And birth had just happened over a three day period, and I just started a trial and we were just talking about stuff. So that analogy comes to mind. Literally you wait. In this particular scenario last week, because the court room was dedicated to other procedures that began at 1:30, we just started doing those. I say we because I had a couple of matters. But really the calendar just goes on. But you wait, and sometimes the jury has a question. Sometimes they don't have a question. Last week they had two questions.

It's always fun to get questions from juries because you try to start thinking about what are they thinking. 

Dillon
Who's the question for? For you specifically? For the judge?

Jonathan
The jury instructions basically tell the jury that if they have some sort of question to write it down and give it to the bailiff and then the judge reads it to the defense attorneys to the attorneys, the prosecutor and the state. It happens the same way in civil cases as well. And then the question becomes how do we answer the question? And nine times out of ten the answer is refer to your jury instructions or you have all the evidence that you're going to have. Sometimes they want to see something. Sometimes they ask a question about what somebody said. And ultimately that is some ... it gives you some sort of insight as to what they're thinking.

But it's not a good nor bad. It's just the way that happens and by the way, we talked about this from an alcohol perspective. You would expect to have at least two additional witnesses in some sort of drug case. One would be a state toxicologist that would have to testify about the blood analysis and what the blood analysis meant to them. Defense attorneys might have somebody on their side, because, you've heard me use this term before. Then you have a battle of the experts. In certain trials, sometimes it's just presenting evidence in expert capacity where one expert has an opinion about the effect of this particular drug or alcohol and another expert in this particular case, whatever the trial is for, has their own opinion.

And of course it comes down to credibility. So that would expand the trial by two witnesses, which might be anywhere from four to six hours of testimony. So this was a relatively quick trial in terms of only three witnesses. But ultimately it took as long as it took. So you literally wait. And you wait, and you want, and then the phone rings to the bailiff to the court clerk; and hopefully they say, "We have a verdict." Sometimes you wait a long time, and then ultimately they indicate that they're unable to agree.

Dillon
'Cause they have to be unanimous.

Jonathan
Yeah. And if a jury can't agree, then there's a procedure where we call them back out, and again, there's a Washington jury pattern instruction on this. And it's basically if given more time, do you think you'll agree? No. Same question to the next juror. And ultimately if that's the case, then it's declared a hung jury and a mistrial. And you get to tee up the trial again-

Dillon
And do it all over again.

Jonathan
Some other point. Or it's guilty or not guilty.

Dillon
Or not guilty.

Jonathan
And if it's not guilty, everybody walks out of the courtroom. It's done, it's over with. The judge would simply write out a form that would indicate the person was found not guilty. If it's guilty, you would go to the sentencing phase at that next point. And sometimes you do it immediately, sometimes you set it down the road three or four days; or even three or four, five, six weeks.

Dillon
Incredible process. And it's incredible to see how our system works to talk through something like this. We're out of time. Jonathon Rands, local DUI attorney in studio sharing all this inside info with us this morning. I'm Dillon Honcoop here, your host on the Legal Docket. Jonathon practices in Fairhaven. His office can be reached at 360-306-8136, that's the telephone number. The website, which as the phone number and the email address and all kinds of other good information and blogs and pictures and all sorts of stuff is jrandslaw.com so check that out online. Always recommend people go to jrandslaw.com; Rands is R-A-N-D-S, very simply. So just the letter J, Rands law, all one word dot com.

And again 360-306-8136. Jonathon, good luck with your next trial. I know you got more to come.

Jonathan
I'll report in next week.

Dillon
Sounds good.


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“Being charged with a DUI is scary and often makes you feel alone against the unknown. Jonathan made himself available after hours to have a 'consultation' of sorts, to meet with me and hear my story, at no cost or commitment.”
Amy
A DUI Client, via Avvo