Protecting Your Rights
“Should I Appeal?”
Pros and Cons of Appealing a DUI/DWI Conviction
When a person is arrested for a misdemeanor DUI (i.e. DUI 1st or DUI 2nd) in Virginia, he is tried in the General District Court (GDC) of the county, city, or town where the crime was committed. A conviction for DUI in the GDC can be appealed to the Circuit Court of Virginia within 10 days.
If the defendant appeals their DUI to the Circuit Court, several things will happen. The GDC judge may issue an appeal bond if the defendant was sentenced to jail, and the GDC’s sentence and conviction will be completely erased. This means that the driver’s license will be returned and the driver will be released from custody without having to pay their fines pending the outcome of their new trial.
Make sure you arrange for your attorney to help you with your appeal prior to your trial in General District Court. If you have already retained a DUI attorney for your appeal and are sentenced to jail in the lower court, your attorney can usually prevent you from having to go to jail. If you have not made such arrangements, then you may have to try and retain your attorney or file your own appeal while sitting in jail. This may lead to you spending time behind bars unnecessarily.
Your new DUI trial will be held in the Circuit Court. The Circuit Court will conduct a completely new trial. The Circuit Court is a different court system than the General District Court and has different procedural rules. For example, you can get a jury trial in Circuit Court, but not in GDC. The Circuit Court in some jurisdictions is located in different buildings or even different cities than the GDC, so make sure you know where you are supposed to go on the day of your appeal.
A DUI conviction in Circuit Court can be appealed to the Virginia Court of Appeals and then to the Supreme Court of Virginia. However, these courts can choose whether or not to hear the appeals, and they will only reverse decisions by the Circuit Court if the Circuit Court made a serious mistake.
Felony DUI cases typically involve a preliminary hearing in GDC to determine if there is enough evidence to justify a trial. After that, the felony DUI is tried in the Circuit Court.
As always, a driver should read their attorney-client contract carefully. Some attorney charge additional fees for DUI appeals. Some charge extra if a felony DUI goes beyond the preliminary hearing. Others charge extra if there is a jury trial. Make sure you discuss the prices of these various scenarios with your attorney so that you can avoid financial surprises and budget for the possibility of a DUI appeal.