In general, the ideal juror in any DUI defense is a person who (1) consumes alcohol, (2) drives, and (3) appears to be open-minded and unbiased. In your particular DUI case, the ideal juror will also have characteristics that are relevant to your case theme. Your DUI attorney will determine the one or two strongest points in your favor and develop your defense around those arguments. These main points of attack will become your case theme and will guide jury selection. Several possible DUI case themes are described below, along with their impact on jury selection.
- Improperly conducted breath test
If your case theme is that the DUI breath test was improperly conducted, you would probably want jurors who believe in procedures and who would frown on the sloppiness the officer showed in administering the test. Former military personnel or accountant-types would make the best jurors in this type of case. Your DUI attorney will try to seat jurors who agree that procedures and safeguards need to be followed to the letter, and to dismiss potential jurors who are satisfied with the idea of “close enough for government work.”
- “Disconnect” cases
Another possible DUI case theme is “disconnect.” Your DUI attorney may argue that there is a disconnect, or inconsistency, between the chemical test results and your alleged drinking pattern and performance on the standardized field sobriety tests. In this type of case, you want skeptics on the jury. Your DUI lawyer will look for jurors who agree that machines are imperfect and jurors who, for example, think that a parent knows when a child is sick, despite what the doctor or thermometer may say.
- Bad performance on standardized field sobriety tests
To put it bluntly, if you performed poorly on the standardized field sobriety tests, the best jurors for your DUI case will be those who are physically unfit – the overweight, the elderly, the person with back problems, etc. These individuals likely would perform poorly on field sobriety tests and will sympathize with you on this issue.
- Rising blood alcohol cases
The “rising blood alcohol” defense centers on the concept that a chemical test obtained some time after driving does not reflect the driver’s actual blood alcohol content at the time of the driving; the driver’s blood alcohol content at the time of the test may be higher because alcohol takes time to be absorbed into the bloodstream. While your body is absorbing alcohol, your breath alcohol reading will be significantly higher than your actual blood alcohol level. If your DUI attorney is relying on this defense theme, then individuals who are feeling sick or just getting over a cold might be receptive to your case. Your DUI attorney can compare the comings and goings of a cold with the fluctuating effects of alcohol on a person’s system.
- Refusal cases based on confusion
Another defense theme in DUI cases is that the defendant refused to cooperate – refused to produce identification or take a test – out of confusion or a deliberate act of libertarianism. If your DUI lawyer is relying on a “confusion” theme, you will want to seat jurors who are heavy on emotion and sympathy, and who could envision that a driver might be overwhelmed by all the activity at the scene of an accident. A juror with less education and life experience also would be good. On the other hand, prospective DUI jurors who seem cold and mechanical should be avoided, as they may assume that a driver should understand an officer’s instructions. Military personnel and law enforcement-oriented people also should be avoided.
- Refusal cases based on a deliberate act
If you refused to cooperate with law enforcement because of a (correct or incorrect) belief that you had the right to do so, your DUI lawyer will look for jurors who believe in individual liberty, who have trouble with authority, or who believe that the government is too big and too much in our lives.
- Drug cases
Drug cases present an interesting dilemma due to the nature of the charges. Because there is no per se limit for any drug above which a person is deemed to be driving under the influence, a DUI drug case is based more on the perceptions and opinions of the officers and jurors than on the concentration of a drug in the defendant’s bloodstream.
The first issue for your lawyer in jury selection in a DUI drug case will be to find people who will not automatically accept what the officer says. You want jurors who will listen with an open mind, question the officer’s perceptions and opinions, and draw their own conclusions based on their independent evaluation of the events.
If your case involves the use of illegal drugs, your DUI lawyer will have to confront this issue during jury selection. The jurors must understand that the fact of your illegal drug use is not an issue in the case. To make this clear, your DUI lawyer may ask potential jurors a series of questions like the following:
Q: Mr. Juror, you understand that Bob is charged with driving under the influence of marijuana?
Q: Now, the fact that he used marijuana is not before you as an issue in this case. Do you understand that?
Q: If you found out that Bob smoked marijuana, but that he drove just fine, would you be okay with letting him go?
Q: So the fact that he used marijuana — which is illegal, but not before you in this case — will not color your decision in any way?
Q: You understand that the prosecution decided to bring just the DUI charges and not the drug charges?
Q: You understand there may be a number of reasons for this, but none of that is relevant here?
Q: How do you feel about that?