OWI Law - Indiana Say 5 Person Jury Trial OK with Defense Consent

In Bex v. State of Indiana --- N.E.2d ----, 2011 WL 3667054 (Ind.App.), the defendant proceeded to trial on an OWI. A jury of six members was seated without an alternate juror being selected. During the trial, one juror suffered a medical emergency, and the case proceeded to a verdict with the five remaining jurors. Initially, defense counsel acknowledged the defense's agreement to continuing with only five jurors, but counsel later moved for a mistrial, which the trial court denied. The five-person jury found Bex guilty, and the trial court sentenced her to 360 days in jail with 350 days suspended to probation and eighty hours of public restitution work.

On appeal, the defendant claimed that a jury trial of less than 6 was unconstitutional. The Appeal Court held that under the Sixth Amendment, a defendant may waive the statutory right to a six-person jury in cases involving a Class D felony or a misdemeanor and consent to a trial by a five-person jury; based upon a defendant's right to waive the presence of an entire jury, it would be inconsistent that a defendant could not waive the presence of one juror.


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