I've not heard of being denied a jury trial for a misdemeanor/jailable offense. Are you sure that you didn't waive the jury?
Even if the judge would have allowed you to plead guilty to reckless driving (over the objection of the prosecutor) the prosecutor probably would have filed an appeal and won.
It is unacceptable that you have been waiting 40 1/2 months and have had 20 court appearances and have yet to have your trial.
As you are probably aware, the maximum penalties for a first offense DUI with a breathlyzer result of .08% but less than .10% are:
Loss of license for 30 days;
$250 to $400 in fines plus mandatory fees and surcharges;
Up to 30 days in jail;
12 to 48 hours IDRC (Intoxicated Driver Resource Center)
Failure to pay DUI surcharges
- Indefinite suspension of driving privileges
- Action filed in State Superior Court by MVC. This may include securing a lien against your property, garnishing your wages or other similar action.
Whether or not you are able to "win" depends on MANY factors.
1) did the police have reasonable suspicion to pull you over... The answer will most likely be "yes" because of the testimony of the officer who will say you were "speeding" or driving in a "careless manner.
2) did you pass the certified field sobriety test?
3) Were you read your Miranda rights? (applies only if you are IN CUSTODY and INTERROGATED about the offense) If you were entitled to Miranda rights and they were not given to you, your attorney should ask that any evidence, including your answers to questions, be quashed. That way, the breathlyzer would probably be out!
4) Did you read and sign your breathlyzer rights?
5) How credible is the officer's testimony?
6) Because you blew a .09, could the results be challenged because of a malfunction in the machine? Was the breathlyzer callibrated by the police? If so, when? Your attorney is entitled to see the log sheets as to such callibration.
7) Did anything skew the breathlyzer results? Were you watched for a period of time before given the test? Did you swallow anything, vomit, belch, etc. before taking the test? If you did, then the officers would have to wait another period of time to administer the test. If they didn't your attorney could ask that the results be supressed.
These are just some of the issues that your attorney could raise either before trial at a special hearing, or at trial. If anything, the lack of the police to properly perform their duties with respect to a DUI can raise "reasonable doubt" in the mind of the judge/jury.
Can you win? MAYBE....IT DEPENDS.....nothing is ever guaranteed. Heck, maybe the officer won't show up for trial, and your attorney can ask for a dismissal! Unfortunately, this is unlikely. Also, it depends on the testimony and credibility of the officer, the reliability of the breathlyzer machine, and whether you were properly watched before blowing. It also depends on any other evidence that is allowed under the court rules and rules of evidence. It also depends on the answers to the issues raised above...Remember, the questions that are asked of witnesses are NOT evidenced, only the ANSWERS are evidenced.
Just Remember...YOU ARE PRESUMED INNOCENT until proven guilty BEYOND A REASONABLE DOUBT. It is the prosecutor who has to prove each and every element of the crimes beyond a reasonable doubt. It is a high burden. You do not have to prove anything. If the prosecutor fails to prove EACH and EVERY element of the crimes BEYOND A REASONABLE DOUBT, then the judge/jury must find you "not guilty"
If you are found guilty, or somehow plead guilty, you will be receive a presentence investigation, including an alcohol screening--whether you show signs of substance abuse. You will be able to go over you personal history, your version of the events, etc. If you believe that you were drunk at the time of the arrest, it is VERY important that you tell the screener that you take responsibility for your actions, and that you are remorseful. Judges appreciate that. Because, if you plead guilty or are found guilty, it is all about DAMAGE CONTROL, and putting your best foot forward. Your attorney and you may speak at sentencing. Again, it will be very important to stress the POSITIVES about you. All of the positives may influence the discretionary portion of a judge's sentence. For example, jail is NOT mandatory....you could get probation instead, etc.
I don't mean to presume that you will be found guilty, I'm just giving you a head's up! You really need to have a SERIOUS discussion with your attorney about your chances of winning. YOU and your attorney should know the evidence that will most likely be presented and whether the prosecutor can prove his/her case. If you proceed with a trial, what are your defenses? These are all things that you and your attorney should have talked about by now, or need to do so prior to any trial.