5.6 Jury Trial or Bench Trial

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 Ed.)

5.6 JURY TRIAL OR BENCH TRIAL

5.601 In General.

When the case will be heard by the circuit court, counsel must explain to the client the realities of a jury trial and inform the client that the court, the Commonwealth, and defense counsel must all concur to waive a jury. ¹¹¹⁵ Without this concurrence, any one of the three can elect to have a jury. In the most serious traffic cases, the election of a jury trial may not bode well for the defendant because of the public stigma associated with such charges. A jury is often an excellent source for acquittal where a factual dispute exists or if the BAC is seriously flawed.

Before the 2020 legislative amendments, Virginia was one of only two states in the country in which a jury sentences. The statute now states that the jury determines guilt or innocence, but the court sentences the defendant. However, section 19.2-295 of the Virginia Code still allows the defendant to elect in advance to have the jury determine the sentence as well. Counsel has heard for years from judges the admonition that if you live by the jury you die by the jury. A sentence that might have been customary if one lost a DUI case tried before a judge could not be counted on if tried before a jury. The most serious risk in the past with a trial by jury in Virginia was that, if the defendant was found guilty, he or she could be sentenced to jail by the jury and the trial judge would not suspend the sentence. This particular risk normally does not exist with a bench trial on a first-offense DUI unless there was an aggravating factor such as extreme speed, an accident in which someone was hurt, or obnoxious behavior toward the officer after the stop. The trial judge is unlikely to impose a sentence that is more harsh than one that the court would...