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What Happens at a DUI Bench Trial?

The procedure for a bench trial starts with everyone gathering in a courtroom. You and your defense team gather around one table, while the prosecution and their team gathers around another.

DUI Bench Trial Procedure

Once the parties and their attorneys are in court, the judge will enter and take his or her seat on the bench. The bailiff usually announces that the judge is entering the courtroom. When the judge enters the courtroom, it is expected that everyone stands until they are told to take their seat.

Next, the judge and the lawyers present may exchange some banter. Remember, they are all lawyers, and often, they have worked in the same courtroom for years. Instead of becoming annoyed at being left out of the verbal exchange, understand that the more the judge engages in chatter with your lawyer, often the better the two of them know each other. This may be a very positive development toward obtaining a favorable outcome.

The DUI Bench Trial Begins

The judge will then more formally ask each side if they are ready to proceed. The prosecutor, then your lawyer will answer. If either says no, your trial may be halted. This might mean your charges may be dropped, especially if key witnesses for the prosecution are not present. The judge may grant the prosecutor more time to gather their evidence or a missing witness.

A “yes” answer to the question of whether a party is “ready” can be a critical place at trial. This step in the process is more than a polite gesture or formality. A “yes” answer by either attorney can foreclose (prevent) certain legal issues from being raised later if a legal challenge is made.

Opening Statements

If both say “yes,” then the prosecutor has the option (but not the obligation) of making the first opening statement. The opening statement is supposed to be an outline of their side of the case for the judge, laying out the facts the prosecution expects to prove and the evidence they expect to present, without any argument as to your guilt. It is not unusual for the prosecutor to skip this step in a bench trial. Unlike a jury, the judge already knows what the State has to prove.

When the prosecution has completed its opening statement, or if they waive their right to make an opening statement, your lawyer gets his or her chance to do the same thing. He or she may opt to follow the prosecutor’s opening immediately and outline the facts he or she expects to prove in your defense. Your attorney may also “reserve” his or her opening statement until the prosecutor “rests,” once all of the prosecution evidence is closed. Again, your lawyer is not supposed to argue the case during his or her opening statement. He or she should just set forth the facts the defense expects the evidence to show.

Presenting The Evidence

Either side may use visual aids such as a chalkboard or a PowerPoint presentation, as long as they are presenting only the facts they will produce at trial. Such presentations are more common in jury trials than in bench trials. Remember, the judge has likely presided over countless trials and might be annoyed at a long-winded or flashy opening.

At the direction of the judge, the prosecution then calls its first witness. The manner of presenting this testimony is laid out above. In their case-in-chief, the prosecution needs to call witnesses to prove every element of every criminal offense you are facing. This is called their “direct examination” of its witnesses.

Your lawyer will keep track of all this, including everything being said, taking notes. He or she cannot listen to you at the same time. Anything you need to “say” needs to be written down on a pad and placed where your attorney can read your note. Distracting your attorney by tapping on his shoulder and trying to speak to your legal counsel can cost you the case. Write any notes and never try to whisper or talk to your lawyer.


Your lawyer gets to question every witness the prosecution puts on the stand and questions. This is called a “cross-examination.” After the cross-examination of a witness, the prosecution may ask the witness a few follow-up questions that relate to the issues raised by the cross-examination. This is called the “re-direct” of the witness. Last, your lawyer has the option of asking this same witness a few final questions, called “re-cross examination.”

Because your attorney must be totally focused on these prosecution witnesses, your lawyer will likely advise you not to interrupt him or her when any witness is speaking, no matter how important you think it is. Your lawyer may well have given you a legal pad of your own and a pen for exactly this situation. Write down your concerns, and wait for your attorney to see your notes. At the next break, a discussion can occur, but not while testimony is in progress.

After the prosecution has put forward its case-in-chief, and presented all their witnesses and any physical evidence, they “rest.” Resting means they can no longer put in any further evidence against you, unless your side puts on a defense and the prosecution wants to rebut something one of your witnesses said.

The Prosecution Rests

The point in your trial when the prosecution “rests” is an important stage of the case. Once the prosecution rests, if it has not proven every element of each crime of which you are charged, your lawyer may ask the judge to eliminate those unproven charges based on a lack of evidence. This happens when the prosecution forgets to ask the right questions or could not get certain evidence admitted.

Two quick examples of such oversight will help explain this. In a DUI-DWI-alcohol per se case, the State may need to prove that the breath test was taken within so many hours (usually within 2 or 3 hours) after the driving ended. If overlooked, the per se DUI-DWI-alcohol charge should be dismissed or eliminated. Similarly, the prosecutor may fail to prove in an accident case that the alcohol was consumed before the driving ended. The time to raise such omissions in the evidence is at the close of the State’s evidence.

If the charges are not eliminated, it is now the defense’s turn to put on your witnesses, if any. As noted above, no requirement exists for you to put on any defense or to put up any witnesses. If you and your lawyer do put up any witnesses, the same process of examination, cross examination, re-direct, re-cross examination goes on, with your lawyer switching questioning positions with the prosecution. Again, do not interrupt your lawyer in his or her observation of the prosecution’s examination of your witnesses. Write down your concerns and he or she will get them at a break.

The Defense Rests

Once your attorney has put up (on the witness stand) everyone they want to testify, the defense will rest. As mentioned above, the prosecution then has the option of putting on rebuttal witnesses, and the defense the chance for surrebuttal witnesses, each being examined, cross-examined, rebutted and surrebutted by both sides.
When all the testimony has been offered, both sides get a final chance to talk to the judge in closing arguments. As they have the burden of proof, the prosecution has the option of speaking first. In certain situations, the prosecution will simply summarize what they already presented and not say anything further.

Closing Arguments

It is your constitutional right to have your attorney deliver a closing argument. The purpose of this closing argument is for your attorney to take the facts that have been presented by either side, refer to any controlling legal precedent, and put forward to the judge the best possible reasons why you are NOT GUILTY of the charges. This is one of the few chances your lawyer will have to utilize his or her persuasive skills. Do not expect the same impassioned oration from your attorney when he or she is speaking to the judge as might be used at a jury trial.

Last, the judge makes a decision as to your guilt. Unlike with a jury, often this is done right away, or after a very short break. With drunken driving cases, like with most other misdemeanors, if you are found guilty, the judge then sentences you to your punishment at the same proceeding. If you are found not guilty, your trial is over, your bond is released and you are “discharged” from responsibility for this crime.

Further Reading

To learn more about DUI bench trials, take a look at some of our in-depth articles on the subject below: