What Is an Affidavit of Prejudice in a DUI Case?

What is an affidavit of prejudice? One time during the life of a criminal case, which includes a DUI offense an affidavit of prejudice can be filed against a Judge effectively removing them from the case, and putting the case in front of a different Judge. To do so several requirements need to be included in the face of the motion. First it must contain an affidavit from the attorney stating essentially they believe the Judge cannot hear this case fair and impartially. The attorney then has to certify under penalty of prejury that they believe this to be the case. The attorney then has to sign the bottom of the motion before it gets filed with the court to essentially swear under penalty of perjury that the following reason was true and correct.

When can an affidavit of prejudice be filed in a DUI case? This can only be done if the Judge has not made what is called a discretionary ruling on the case. In other words if the Judge has not made a ruling in the case, or appeared as the sitting Judge then this affidavit can be filed and a new Judge would hear the case. There also is a time limit when this affidavit can be filed. Different states have different laws regarding this, but usually the time frame is ten days from when the attorney became aware of who the sitting Judge was going to be. So even if the court date was known months prior, if a new Judge steps on the bench and the attorney did not know until that second that would start the clock on when they became aware of the Judge for the time limit purposes.

Why would you file this affidavit against a Judge in a DUI case? Usually when this practice is done it is because of strategic or tacticul reasons. Perhaps the Judge has previously ruled on a motion or legal issue that is contrary to the attorneys position. Or perhaps the Judge is notoriously unfavorable to the Defense, and always takes the position of the Prosecution. Or it can be as simple is the defense attorney believing the defendant would get a better case in front of a different Judge. Whatever it may be it really is up to the defense attorney and this decision should not be made lightly since it can only be done once during the case.