Recently a Pennsylvania judge found a defendant guilty of DUI even though the jury in the case acquitted her.  Twelve members of the jury sifted through the evidence and arrived at a unanimous decision- only to have the judge completely ignore their autonomy:

DUI defendant who lost license acquitted by jury, convicted by judge

Jessica D. Trump wanted her day in court on allegations she drove drunk, even as a Northampton County judge stripped her of her driver’s license a month before her trial, calling her a danger on the road.

Well, this week the 25-year-old Salisbury Township woman got her chance to proclaim her innocence before a jury in Easton.

And on Tuesday, she won. And then, she lost.

After an hour and 15 minutes of deliberations, the jury found Trump not guilty of second-offense drunken driving in Freemansburg, after she and two people she was with early July 10 testified she wasn’t the driver of the car.

But minutes later, the judge who presided over her trial convicted her of a lesser DUI offense that he concluded he, and not jurors, should decide. In so doing, Judge Michael Koury Jr. said he accepted testimony that the panel apparently had rejected when they reached their verdict.

The appalling nature of the exercise of discretion by this judge in this situation is truly underscored by the details. It is true that this judge was the only person empowered to determine the “incapable of safe driving” count of DUI. The jury was empowered to decide the other count. This is due to our legislature’s bizarre concept of justice wherein a jury of one’s peers does not get to make decisions on such a serious charge under the guise that the “punishment” cannot exceed 6 months. The reality is far from this notion that a DUI is minor in nature and consequence.

The details of this case as I understand it was that the accused was charged with two counts of DUI (one where the government had to prove beyond a reasonable doubt that the accused was the driver and was incapable of safe driving, and the other that the accused was the driver and the accused had a prohibited level of ethanol in the blood). The one element that both charges had in common was that the government had to prove that the accused was driving. The defense in this case was what we call a “no driving” case where in the basic theme can best be summed up as “was the drunk driving?” So the entire focus of all of the evidence was on the central issue of: Can the government prove the accused was the driver? The blood alcohol content was not contested. Under this circumstance, the not guilty verdict by the jury means that after hearing all of the evidence, the government could not prove that the accused was driving to the jury’s satisfaction. Twelve folks agreed that this could not be proven. The judge rejected this finding of fact by the jury.

While it was wholly within the judge’s technical right to do so, and perhaps therefore ethically he could have done this, it was morally wrong, incorrect, and unjust.

Unfortunately, on appeal there is little that can be done. When it comes to a judge’s verdict under these particular circumstances the deck is very much stacked against the accused. The scope and standard of review that has to do with a finding of fact (was the accused the driver?) is an abuse of discretion standard of review. The abuse of discretion standard means that the accused has to convince the appellate court that the judge rested his verdict on “a clearly erroneous finding of fact” and there was a clear abuse the Court’s discretion as the record contains no evidence to support its decision. That’s right it reads “no evidence.”

While the judge could do this, he should not have.

The legislature needs to change this aspect of DUI law so that common sense, fair dealing and justice wins at the end of the day.

As citizens of Pennsylvania, we need to stand up against this injustice before it happens to us.

Justin McShane

PA DUI attorney Justin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.