How Often Do DWI Cases Typically Go To Trial?

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That’s a funny question. I asked that question. I was the chair of the New Jersey State Bar Association, Municipal Court Practice Section. One of my jobs was to setup our state wide meeting in Atlantic City every May. Part of that was something called the Bench Bar Panel and that’s where you have judges and prosecutors and defense attorneys discussing issues of the day. One of the questions that comes up is what percentage of DUI cases actually go to trial. We had one of our presiding judges say, “It may be 1%”. I was floored because I know in my practice, I try maybe a third of my case and the reason I try that many cases is because given the penalty structure in New Jersey, there is very little difference between the consequence you get if you plead guilty versus if you’re found guilty after a trial.

Sometimes the difference is only a few hundred dollars, worst case scenario, but that’s against the backdrop where a person is facing thousands and thousands of dollars. So to take your shot at trial, risking an extra few hundred dollars isn’t something that would affect that decision. So very few cases go to trial and I know I’ve found the secret to my success even more than my knowledge of the law, even more than my trial skills is simply demonstrating the will on behalf of the client to take the case to trial. The bottom line is that the municipal courts in New Jersey for the most part really aren’t set up to have trials. Their calendars aren’t run to accommodate, they’re so used to people pleading guilty. Many attorneys will take money from the person just to hold their hand as they plead them guilty.

Frankly, I don’t think that’s right. If you’re going to hire a lawyer, you got to hire a lawyer who’s going to fight for you and take it all the way. Now, there may be circumstances where it makes sense in those cases where people have a lot of different serious charges in the mix. But in a typical DUI case where you’re dealing with a DWI ticket, a companion reckless driving ticket and maybe the underlying traffic infraction that caused the cop to pull the person over, you have no incentive to plead guilty unless involves getting rid of a high reading, that’s all I can see. More often than not I tell people to take it to trial even if the offer is to take a plea without a reading where you get a 3-months revocation instead of a 7-month revocation.

I’ll recommend going to trial because that while 4-months difference may seem important now in the long run, the more significant effect is having the conviction. The other interesting thing I’ve found about trials is even if the state’s case on paper looks perfect in a sense that the breath test result should come in and the person should get convicted, my experience has been that many times, maybe 40 or 50% of the time because so few of these cases are tried, prosecutors make mistakes. If the defense attorney is attuned to looking for those mistakes, you can sometimes get a much better result by taking the case to trial and by pleading guilty.

Is The Sentencing Typically Worse If Someone Loses At A DWI Trial?

No. One of those things about judges is the vast majority of judges in New Jersey do not impose what we call a Trial Tax. A person may get taxed for an extra motor vehicle violation but that usually means just an extra fine of as much as $240. Now, there is no real trial tax in most cases. In those cases where it becomes apparent, you can challenge that on appeal simply by getting the records, the transcripts of pleas involving worse cases than yours. The federal system does provide for mitigation by way of a person’s taking responsibility. I think that’s how they phrase it. But in New Jersey state courts, that’s expressly prohibited. You cannot punish somebody more severely simply because they chose to exercise your constitutional right to a trial.

There was a very significant decision that came down from a Supreme Court just two weeks ago or so. It was in a case called State v. Robertson. Dealing with the standard for what we call Stays Pending Appeal, basically what happens is at the end of a trial, the municipal court judge will say what the sentence is. If the defendant wants to challenge that conviction, they are permitted to ask the judge to not execute the sentence but rather to hold it aside while that person files the necessary paperwork to take the appeal to our superior court. Because that superior court case, that superior court appeal is technically speaking what they call a trial de novo on the record, a new record based on the reading of the transcripts and the review of the documents placed into evidence, this new case, State v. Robertson, says that there is a presumption that the defendant will receive a stay.

In other words, if you lose at trial, more often than not the judge has to let you keep your driver’s license and have to hold off on imposing the fines until you file the paperwork or don’t, for that matter, because if you don’t then they have to come back and execute the sentence. When you do the first appeal, the standard of review by the superior court judge is to give due but not necessarily controlling weight and findings of credibility made by the municipal court judge. But that different judge may decide that the facts dictated different results than the one made by the municipal court judge. More often than not, there is no trial tax in New Jersey.

You have a chance to address that on appeal where the politics of the court is a lot judge, where the judges have 10-year, they’re either for 7 years until life and aren’t going to be persuaded by cops talking to the mayor of the town.

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