should I request a jury?

Wisconsin

According to materials given to me at my initial appearance, it seems my license can't be revoked by the DMV(because of testing under limit) but CAN be revoked by the state if convicted of OWI. After pleading NG to the court commissioner, a court asst. or the like gave me my pretrial conference info. Materials given previously indicate I have 10 days from initial appearance to file a request for a jury trial. I asked the asst. for clarification and she pointed to my BAC number (.07)and said "I wouldn't worry about it". I tried to get a copy of the police report but it may be weeks. Not knowing what's in there, should I file for a jury anyway...just in case the pretrial DA doesn't offer a reasonable resolution and this goes to trial? I mean, if I don't file now, I believe I lose my right to a jury should I need/want one. I'm thinking I may be in a better position when I go to the pretrial if I have a request for jury on file. Or does that make a trial inevitable? I would rather avoid a trial but figure a jury is better if it goes that way. Thoughts????

my knowledge is minnesota law

You indicated that your BAC was .07. I'm assuming that this level was ascertained by an Intoxilyzer (or equivalent) machine at the particular law enforcement center you were taken to after your arrest rather than from the PBT (or the on-site breath test you may have taken). If this is the case, then smile because things are looking up for you. Unless you were stumbling all over yourself, were involved in an accident, or ran after being pulled over, you most likely will not be convicted of a DWI or, in your case, OWI.

This is not legal advice: If I were in your situation: I would demand a jury trial as soon as possible. Unless you live in a very, very sketchy jurisdiction, you will not be treated any differently for doing so even if you were found guilty. This demand will show the prosecutor that you are not willing to simply plead guilty and he/she must prove the case. Now, the facts of your case (based upon what you have provided) are horrible from a prosecutor's perspective. The prosecutor most likely will not want to waste the judge's time nor their own with a .07 bac case.

Does this make a trial inevitable? No. If you don't have an attorney or a public defender (and i'm making an assumption that you probably don't want to pay for an attorney, but don't financially qualify for a PD), contact the DA yourself. And if you don't, and trial is on the court's calendar, the prosecutor will probably contact you and want to work out a deal because he/she knows that this is a garbage case. Obviously, none of this is any guarantee, but this is the way it usually works.

If you do not resolve it and get a trial notice, this means two things: one, you have a crazy prosecutor on your hands; and, two, if you can get an attorney, get one. If you get an attorney, great, the matter should be dismissed within moments. If you don't get one, good luck. But remember: you don't have to say a word, the State must provide all the proof. And they are going to have a hell of a time proving your guilty based upon what you have disclosed.

North DA,
I filed a request for jury and paid $72 for a 12 person jury. There was a choice between 6 or 12. I confirmed that this can be waived at a future date so I feel good about filing. if I hadn't, there would be no way to ask for it later. Seems like deciding this before the pre-trial is premature but that's how they set it up.
I stopped by the DA's office and they still don't have anyone assigned to my case..therefore, no way to get a copy of the police report. In fact, they informed me that my request may simply be denied. I wonder what criteria is used to deny pr forward this information. Seems like this should either be available or not. What purpose would be served by denying this? Seems like denial puts the defendant at a disadvantage walking in to the pre-trial. I would like to know what's in there so I can decide whether to have counsel with me.
More information:
What started the incident was a lane chaneg approaching an exit..I didn't check the lane beside me and "cut off" a police car. Lights came on and I immediately and precisely pulled over.
When asked if I had anything to drink, I replied yes. They asked me to do the heel toe, one leg and eye test. I blew .09 on a field test, .07 at the station. I told them I thought I did fine on the tests and they said it was the eye test that did me in. There was a temp license form that said I was arrested for being over the BAC limit. I was asked to sign this and although it technically appeared to be a signature of receipt, I refused to sign anything stating I was over the limit. There was another form that asked numerous questions about my evening's itinerary and consumption. I asked whether there was any penalty for me not filling this out. When told no, I didn't. I had asked clarification questions here and there throughout the whole process(1st offense) and was often met with gruff responses like "Are you refusing?" I had asked to stay in the room while the .07 was being printed. They were asking me to leave the room. At one point I was accused of being difficult the whole night. The truth is I NEVER took any kind of tone with them and was simply trying to comply with required requests and nothing more. Due to logistics, I opted for the stay in jail vs being picked up at the station. I was told it would be up to 12 hrs based on BAC retrurning to zero. Upon arriving, I learned it is a mandatory 12 hours. That was a very long 12 hours.
This is my account..I would really like to see what's in the police report. Looks like this may or may not happen...wonderful.

From Minnesota

Your going to have to trust me that I submitted a much longer response and for some reason it didn't post.

This is personal commentary and not legal advice: The DA's office is not under any obligation to release any reports to you unless you submit a written request which conforms to your state's rules. Although I am not familiar with your state's rules, I would imagine that if you did the following, it would be a legal discovery demand: send a letter to the DA's office referencing your personal information (name, dob, ect..), date of offense, the offense charged, and any reference numbers supplied on any documentation you may have received. You could state that you are hereby requesting full disclosure of any and all materials which may be used against you during any proceeding arising from the above-referenced incident. You may remind them (although they are already aware of this), that failure to disclose such materials may result in the dismissal of your case.

My guess is that the DA's office wasn't able to give you reports because they simply havent received them yet. Often DA's offices will give out copies of reports to un-represented defendants even though they are under no obligation to do so. On the other hand, they may have an internal policy against it. Either way, you must make a written demand to legally enforce your right to obtain this stuff. An alternate method is to go to the law enforcement agency which issued the report. The rules are different here. That agency is legally obligated to provide you with copies of reports regarding this incident during normal business hours. They may charge you for making copies, and it may take a little while for them to do so. But DONT be a jerk about it. In fact, be very humble and understanding with everyone you encounter during this process or it will backfire in your face --you'll still get the reports, but the prosecutor will be notified about your attitude. And little things like that unfortunately can go a long way...

I believe you..I have lost more than one post.
I did put a written request in at the DA's office..was a bit surprised they didn't have a form..They handed me a legal pad and asked me to write a note. I suppose a lawyer usually files these requests? I guess I will wait and see. I am a bit hesitant to make the request at the police station. It doesn't seem wise to inform them I am contesting things...especially if they haven't filed it yet. Of course, they may already know.
Your comment about them potentially "informing" the prosecutor of perceived "attitude" suggests I should keep a low profile. It also suggests some kind of weird and questionable communications between authorities...but I'm glad I know.
Any other advice? Is 12 the better option in terms of jury size?
Thanks

I still am waiting on feedback on my choice of 12 person jury but in the meantime...

Are there any salient defenses against the HGN test?

Also, is it possible to get a copy of any videotape if there is one?
Is it basically a given that my rodside test was taped?

MN

RE: Juries-- As I have mentioned, I am not familiar with your state's rules, so take the following with such precaution and realize that I am not giving you legal advice in any way, shape, or form. I am not your attorney.

Juries of 12 are usually reserved for felony crimes. Your choice may be that of a jury of 6 or a trial in front of a judge. Most people in your situation would take a jury which hasn't "heard it all before." Think about that ...

RE: HGN Test--

The HGN test, or the Horizontal Gaze Nystagmus test, is one of many tests which allow the officer to make preliminary (on site) decisions regarding your sobriety at the time. During the HGN, the officer is looking for 6 clues or indicia of intoxication. He/She will ask you to stand forward and look right and left. The officer is looking for eye "twitching" at 45 degrees and at maximum deviation. If the officer observes such clues (eyeball twitching), they will be used to find probable cause to arrest you.

Because field sobriety testing is not legally subject to recorded documentation, one has a diffucult time telling the judge (or jury) that the officer's observations were incorrect.

However, many jurisdictions require video-taping every stop as a matter of departmental policy. Do not confuse this with some legal requirement though. They dont HAVE to do this. And usually the video shows the defendant stumbling through the tests requiring him/her to perform physical activities involving their limbs.

And the "eyeball" (HGN) test isn't something that a subsequent viewer can determine while watching the on-board squad video.

So to answer your question, you most likely will not be able to refute the officer's HGN observations unless you have an attorney representing you and an expert witness who can degrade the officer's qualifications and expertise in that area.

RE: Discovery of Evidence-- If there was a video tape of your stop, you have a right to see it. In fact, you have a right to see any evidence which may be used against you. If you want a copy of the video, send a request to the prosecutor. You must comply with discovery rules of your state, however, I believe that I've already delineated the essence of what you need to do in terms of discovery.

If your final AC was .07, as you have indicated, contact the prosecuting attorney. Do it. I would be very surprised if he/she would pursue a DWI-type conviction in your case.

Yes, I realize you are offering opinion and not legal advice.

So do you think 12 is a less desirable number for a jury in this type of case? This is what I picked when unexpectedly faced with the choice between 6 or 12.
In terms of contacting the prosecutor, are you talking about before the pretrial conference? Do you mean by telephone or a written contact? Last time I asked about the police report at the DA's office, they said no one was assigned to the case yet. That was 10/25. They said check back in 10 days.
I am still considering getting an attorney. I may set up some initial consultations with a few to get some reactions to my situation. Any suggestions in terms of evaluating a lawyer? I have not needed one before. There numerous lawyers listed in teh phone book that seem to specialize in DWI. I wonder if it is advantageous to have a lawyer known for that with me in the pre-trial or if being lower key and negotiating myself is better. I want to have the benefit of knowledge of options but also don't want some clash of personalities(prosecutor vs lawyer) who may have met before affecting the negotiation.
I also would also like to avoid the expense if it's not necessary.
From what I've read elsewhere, a potential resolution may be a reduction to reckless driving. My guess is that would jack up my insurance. I know some people get temporary insurance for a period of time after a DWI conviction to keep their normal insurance from being notified of the incident. I wonder if I should have something like this in place before the pre-trial or if I will have time to do this after.
Thanks for the feedback

Obviously, the following is not legal advice and you know that I'm not your attorney:

hey:

in my state, you don't get a choice between a 12 or 6 person jury for a DWI unless it is a felony. It's always 6. If I were given the choice, I would demand a 12 person jury simply because it doubles the burden on the prosecution. The prosecutors would have to convince 12 people rather than 6 that you're guilty. And "reasonable doubt" is a disease-like infection that spreads in greater numbers within juries --which is to your advantage.

And for any attorneys who are reading this and wondering why in the world a prosecutor would be telling a defendant this, I say: it's a nice break; it's quasi-pro-bono; it's not my jurisdiction; and this is a bad case for the State.

Regarding contacting the prosecutor: If you have a pre-trial conference scheduled, use this time to speak with the prosecutor about your case. Most likely, you will be able to resolve it without a DWI conviction. If he/she is not willing to plea-bargain, just make sure that you do not waive any evidentiary (or "omnibus") issues at that hearing. If you actually have to go into the courtroom, tell the judge that you believed that you would have been able to strike a deal with the prosecutor given your low alcohol concentration; that this didn't happen; that you wanted to avoid a costly trial; and that you would now like to "consult your attorney" regarding this matter. If you say all of this, most judges will grant you a "continuance" (reschedule the hearing) to find an attorney. This will give you some time to evaluate what you want to do. Some judges may ask you who your attorney is, so be ready to spit out a name.

Personally, I would be very surprised if the prosecutor is going to pursue a DWI conviction in your case (but i've already said that).

Re: Getting an Attorney:

As an attorney, I would never tell you that getting an attorney is a bad idea. A DWI attorney will tell you the strengths and weaknesses of your case and (hopefully) diligently fight for your case.

I don't really have any advice in terms of how to find a DWI attorney. I do know that most charge about $500-$700 for a "hand-holding" fee in my area. This means that they will do nothing but sit next to you while they plead you guilty for this cost. Honestly, I'm not making this up. Call one.

If the prosecutor decides to proceed with prosecution, and if you want to fight the charges, you are looking at at least $1,000.00 in attorney's fees to file a motion and fight it. But, that's not considering the time the attorney even spends at the subsequent hearings... Call around. Ask questions. You'll find I'm being very conservative...

One thing I wouldn't worry about is some "clash" between the prosecutor and a defense attorney. Although this sometimes happens, it's pretty rare. And if you want an attorney, don't let this concern you. 99% of the time, an attorney will only help you-- you just need to determine whether the costs are necessary. Very, very, few defense attorneys ever allow their clients to be treated differently because of THEIR representation of the client. But I confess that I say that from my own experience as a prosecutor --I've never treated a defendant to his/her disadvantage because of his/her attorney. I have, however, received calls from officers' requesting that I do not enter into plea negotiations with certain defendants because of their attitudes or the way THEY treated the officer. And this, I do take into consideration in plea negotiation.

Re: Plea negotiations & Reckless Driving:

Contact your License Bureau to determine what impact, if any, you plea will result in. Do this before you enter any plea.

And unless you were driving in a manner in which you knew you were endangering the safety of someone, I'd be hesitant to plead guilty to even that. Remind the prosecutor that he/she will need to provide a "factual basis" for your conviction. In order to convict someone for Reckless Driving, the defendant must either be proven guilty of it, or state in open court that he/she operated motor vehicle with reckless disregard for the safety of others. Merely operating a motor vehicle with a .07 doesn't cut it unless you are willing to accept that and state it on the record.

So the choice is yours. Again, the foregoing is not legal advice. And given our correspondence, you already know that, I just need to keep repeating it for my sake. Unfortunately, that's the way law is. I have to keep telling you that my opinion is my opinion, lest I get my license taken away for trying to give you my opinion.

Then I'm glad I chose 12.
From what I can tell, the pretrial woudl not lead directly to tial. The sheet given to me says "The pretrial is an opportunity to discuss and attempt to resolve your case before going to trial.... If your case is not resolved, the court will schedule it for a court trial; final conference and jury trial: or other appropriate court hearing."
So sounds like the final conference would be the last chance to avoid a trial.
The general feedback I'm getting is positive but every so often I come across a case or info on the web that mentions any level of impairment being enough to convict. The HGN test seems to be a mixed bag with varying levels of evidentiary weight given it. I am assuming that this along with my bad lane change are what are in the police report.. One lawyer told me some police departments don't give out police reports..I still haven't received one from the DA's office.
For reckless driving, is there any room to maneuver considering I crossed into a police car's lane? I suppose in another context, a warning might be possible but in this case..well..... With my heightened concern about driving, i have noticed at least once that there is a "blind spot"(rear/right) where I believe the squad was. Probably irreleveant legally. I would definitely say that I was unaware of endagering anyone but odes that help? As far as the penalties, for reckless driving, I have e-mailed the person who accepted my administrative review request and who sent the notice that suspension wasn't proceeding. FWIW, the part about no report having been filed was underlined and bold. But I haven't received any info on what an RD charge entails.
I will pursue more local opinions but I wonder if the prudent thing to do is to see what's offered at the pretrial. If no deal is offered, I would ask for trial and get a lawyer in the time between. Then again, maybe my position in the pretrial is severely diminished without representation.
Thank you for your commentary which I do understand is not legal advice.
If anyone wants to comment more directly, I am [email]Gweilo66@hotmail.com[/email]

Pretrial was a surprise. The police report was submitted to the DA's office the day before so the assistant DA handling my case had not read it, thereby precluding him from enclosing an offer. It came down to the paralegal quickly reading a 10 page report and determining she didn't feel comfortable making an offer. Actually she started to write one saying something about "this offer" until I asked "What offer?". She then scri=atched it out saying she was just trying to be nice and said.."sounds like you don't want to settle here anyway. I was just writing the minimum sentence." In essence, no offer at all. It was then that she said she didn't feel comfortable making an offer.

The police report looks pretty bad with numerous failures of SFSTs and the officer implying that I "stood there" not following directions. There was no summary of points deducted or a test grid or the like. Seems creatively written to paint a picture. Some parts seem out of sequence and misleading. The arresting officer and breath tester seemed to view my eyes and speech differently.

There is a video tape which I should be able to view in a week or so. I can request a copy. I willl have to handle this through the assistant DA.

After my pretrial, I went to the DA's office to ask for an extension on filing motions since the pretrial in a sense didn't happen(case wasn't reviewed). The assistant DA came out and walked back down with me to look at my file still in the pretrial room. When he retrieved the file from the paralegal, she asked to talk with him outside the room because she had read the report. They came back in talking about the tape but I couldn't hear much else. He confirmed that the tape would be important and told me he would notify me when it arrived and we woudl look at it together. I told him I needed it to properly dialog with a lawyer. He offered no written extension for filing motions(20 days after pretrial) but said lawyers can file for extensions and taht he personally doesn't deny filings based on deadline.

I feel like i was shortchanged at this first negotiation session. I guess I will see what happens when I meet with the Assistant DA to watch the video. Maybe an offer will be floated at that point. Otherwise, any real negotiating will have to wait until the final conference.