Prosecution refers to the government’s role in the criminal justice system. When criminal activity is suspected, it is often up to the government to investigate, arrest, charge, and bring the alleged offender to trial. Prosecutors are the lawyers who work for the government and who are responsible for developing and presenting the government’s case against a defendant. Prosecutors may be called county attorneys, city attorneys, or district attorneys. The prosecutor is the opponent or “adversary” of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court. Because these public attorneys focus their energies on prosecuting criminal cases, they are generally very experienced in criminal law, and it is therefore essential to have an experienced defense attorney. Thus, in order to best preserve a criminal defendant’s rights and strike a fair balance in court, representation by an experienced criminal defense attorney, particularly one knowledgeable in drunk driving law, is a must. 

The Decision to pursue a case in court

A prosecutor becomes involved in a criminal case in one of two ways:

  1. A referral from the police who have investigated, arrested, searched, and processed an alleged offender
  2. Through a grand jury proceeding

Drunk driving cases generally make their way to the prosecutor via the police – the first method described. In making the decision to go forward with a case, the prosecutor considers three things:

  1. Whether the case is legally sound
  2. Whether it can be proved
  3. Relevant policy considerations

If the prosecutor decides not to go forward with a case, the case will be over, no matter how much any alleged victim or the police, or even the court, may want the alleged offender prosecuted.

The prosecutor must be assured that there is enough reliable evidence to prove the drunk driving charge before he or she will bring the case to trial. In other words, if the Breathalyzer machine was malfunctioning or if the test results were lost, the prosecutor may decide to dismiss the case. Policy considerations are always part of the decision to prosecute a particular defendant, because the prosecutor’s job is to serve justice in the public interest, not only to win every possible case. The defendant might have mental or physical problems that make pre-trial diversion, like alcohol or drug treatment or a suspended prosecution, a better option than trial. Finally, a prosecutor must consider the limited resources of his or her office when choosing which crimes to pursue.

The Prosecution in Court

The filing of a complaint or other official document by the prosecutor officially starts the drunk driving court case. The prosecutor appears at the defendant’s initial hearing before a judge to represent the government with regard to pre-trial release issues like bail. If the prosecutor has no objection to the defendant’s release before trial, bail is usually allowed. At trial, the prosecutor is allowed to go first and presents the government’s case against the defendant. The government must prove each element of the drunk driving charge beyond a reasonable doubt, based on relevant, credible evidence elicited through the testimony of competent witnesses. In drunk driving cases, the arresting officer is generally one of the key witnesses for the prosecution. The prosecutor also participates in requesting or objecting to jury instructions given by the judge at the end of the trial, although jury trials are not available in all drunk driving cases. The prosecutor may also be called on to defend the government’s sentencing recommendation, if there is a dispute over the sentence to be imposed.


Prosecutors have a lot of power and influence in drunk driving cases. They take the case from the police and decide whether to pursue it in court, they represent the government in court and pursue a conviction, and they may even recommend a sentence, if the defendant is found guilty. Prosecuting criminal cases is what these government lawyers do day in and day out. Accordingly, if you’ve been charged with drunk driving, it is imperative that your lawyer have the same or even greater skill and experience. Call an experienced drunk driving and criminal defense attorney now.

Attorney Stephen E. Mays practices in all areas of criminal and traffic defense throughout the entire State of Wisconsin. If you have been charged with a traffic violation or criminal conduct, call Mays Law Office Toll-free: 608-535-4719 attorney Stephen E. Mays today for a free case review.