Protecting Your Rights
“What is Going to Happen at the Trial?“
What to Expect on the Day of your DUI Trial
The typical judicial experience in Virginia can vary wildly between jurisdictions. In Hampton, some judges move so fast that drivers plead and are sentenced before they reach the front of the courtroom.
In other jurisdictions, the court moves very slowly. In Rockbridge County, the single courtroom may have less than 20 cases a day, while a single Fairfax County courtroom may have up to 200 cases before noon.
Beyond the amount of cases, each jurisdiction has its own method of running the courts. Most courts begin the docket by getting the quick business out of the way: motions, continuances, and unrepresented drivers pleading guilty. Larger courts often organize their cases by police officer, starting with the officer with the fewest cases.
Usually, the courts will call out the names of people without attorney, setting aside the defense attorney’ cases for last. It is always important to sit in the courtroom and listen for your name unless your DUI attorney counsels otherwise.
Negotiating Before a DUI Trial
When the court begins the docket, the Commonwealth attorney will often have time to talk to police officers, witnesses, and defense attorney. Within the first 45 minutes or so, the defense attorney will often have an opportunity to talk to the prosecutor.
The defense attorney will get to hear the evidence against her client and start negotiations for a possible plea deal. Smaller jurisdictions may allow the defense attorney to negotiate the plea before the trial date, but in the larger jurisdictions, the prosecutors of misdemeanor cases almost always refuse to negotiate until the day of the trial because they are too busy or unable to review the case before the day of the trial.
What If I Am Late to my DUI Trial?
Most traffic cases start between 9:00-11:00 a.m. Make sure you know the exact time and date of your case. Show up early. Failure to show up at your trial may result in the judge issuing a bench warrant for your arrest. You may lose your bail and be forced to wait in jail until your new trial date. You do not want to have this happen to you, so plan to arrive early and allow time for contingencies such as flat tires, traffic, or choked security lines.
DUI Plea Agreements
After a DUI attorney has had an opportunity to negotiate with the prosecution, the client will have an opportunity to either accept or reject the terms of the plea. If the client accepts the terms of the plea, the defense attorney will present the plea agreement to the judge.
Plea agreements are not set in stone. After a guilty plea, a judge has the right to alter plea deals if she wants to. Most plea agreements are just suggestions to the judge rather than a binding agreement. If a judge does alter the agreement, the defense attorney may ask to retract the guilty plea. If the judge does not retract the guilty plea, the DUI defense attorney may appeal to the Circuit Court and retry the case. However, most judges rarely alter the plea agreements.
If a client does not accept a plea agreement, he can still decide whether to plead guilty, not guilty, or no-contest. (There is no difference between pleading “guilty” and “no-contest.”) The defendants pleading “not guilty” are usually the last people in the courtroom to be heard.
If a client pleads “guilty” or “no-contest,” the court will usually only discuss the issue of what the sentence should be. If the client pleads “not guilty,” the court will have a trial and discuss the issue of guilt. If the defendant is found guilty, the court will then discuss the sentence.
Paying DUI Fines and Costs
After the judge rules, a client who is found not guilty is free to go. If a client is found guilty, he will have to pay fines, fees, and court costs, and he must register for ASAP and possibly get a restricted license. A driver will have 15 days (from the date of trial or release from jail –whichever is later) to pay fines and costs, and register for ASAP.
Most courts will allow a driver to set up a payment plan for a small additional price ($10 or more). Most courts will allow the driver to postpone payment if arranged with the court in advance. A few courts have community service programs that they offer in exchange for paying fines or costs. Most drivers will never hear about any of these options unless they have an attorney who has agreed to represent them through the post-conviction process.
If a driver does not pay his court costs or comply with the ASAP program, he may be found in violation of the terms of his probation and be sent to jail. Failure to pay fines and register for ASAP may also prevent the driver from getting a restricted driver’s license. The driver cannot get his license back after the 12-month period without having paid all the fines and costs.
What Do I Do if I Am Late or Miss My Trial Date?
If you are going to be late or miss your trial date, call your attorney immediately. If you can contact your attorney before the judge issues a bench warrant, the attorney can ask the judge to either push her client’s case to the very end of the docket or ask for a continuance and set a new trial date.
If the client does not talk to his attorney until after a bench warrant is issued, the attorney can file a motion to appear before a judge and ask the judge to remove the bench warrant. The client must appear before the judge with his attorney. If the judge refuses to remove the warrant, the judge will set bail and the client will be arrested or issued a summons for the charge of failure to appear.
What Happens if the Officer Does Not Show to My DUI Trial?
If the officer or any other witness does not show up to the trial, the prosecution can choose to ask for a continuance or attempt to move forward without their witness. If the prosecution asks for a continuance the judge will listen to the opinions of the prosecution and defense attorney and decide whether to continue the case. If the defense has received continuances in the past, the odds of the prosecution receiving a continuance may be higher.
If the witness is essential to the case and does not have an excuse for being absent, the judge may force the prosecution to move forward with the case. At that point the prosecution can either drop the charges or attempt to try the case without the witness.
If the prosecution drops the charges then they have the option to reinstate the charges later. If it is a misdemeanor then the charges cannot be reinstated later than one year after the offense date. If the charge is a felony then the prosecution may reinstate it at any time. If your charges are dropped by the prosecution your DUI attorney can advise you of the likelihood of the charges being reinstated.
If there is a trial and the judge dismisses the charges against you then those charges cannot be reinstated by the prosecution.
Obtaining a Restricted License
A driver found guilty of DUI (but not refusal to submit) needs the judge’s permission to obtain a restricted license. The driver must also comply with any conditions set by the court (e.g. pay fines and costs, or be evaluated by ASAP).
To apply for a restricted license, the driver will need to supply the court with the exact times and locations of the places to which he needs to drive (such as work, school, and church). If the driver wants to drive to health care providers, school, or day care, he must have documentation of these needs and the times and locations of these events.
The judge may or may not grant the restricted license, or she may grant it under the conditions of the court’s choosing. This can be problematic for clients who drive for work or who go to work at different times each day. It is essential to have an attorney available to help with this process, especially if you do not have a typical Monday-through-Friday, nine-to-five job.
If a driver is not happy with the restrictions on their license or need to change the restrictions, the driver may make a motion to amend their license. Make sure your attorney-client contract guarantees your attorney’s help in obtaining or amending a restricted license.
Once a driver gets a restricted license, he must carry it with him whenever he drives. Furthermore, he may only drive during the times stated on the license and between the locations approved on the license. If ignition interlock is required as a term of the driver’s probation, the interlock system must be installed and the restricted license be marked with proof of installation before the driver may use the new restricted license. Failure to do so may result in additional charges and more severe consequences, including jail time.
If a driver has a commercial driver’s license (CDL), the DMV will not issue a restricted license even if the judge approves it. If you have a CDL, make sure that you inform your attorney as soon as possible.
Typically, a judge will hand down a sentence with the majority of the jail time suspended. This kind of sentence is a form of “inactive probation.” This means that the driver is on probation but does not have to report to a probation officer. Instead, the driver must simply complete the ASAP program, pay fines and costs, and avoid any other convictions or serious traffic offenses.
The judge will also declare a period of time for the probation to end. Typically, this period is one or two years. If the driver violates the conditions of his probation (for instance, does not attend ASAP or gets another DUI or other criminal conviction), he may be required to appear before the judge to determine how much of the suspended sentence he will have to serve. Many judges typically require the entire suspended sentence be served for any violation of probation. The suspended jail time will be in addition to the sentence for any subsequent convictions.
If you have a suspended sentence or probation from a previous conviction and are arrested again, immediately get an attorney and tell your attorney. Also, make sure you hire a DUI attorney who will walk you through the ASAP and restrict driver’s license registration process, so you can avoid accidentally violating your probation.
Registering for ASAP
A driver who is sentenced to attend the Alcohol Safety Action Program (ASAP) as part of his probation must register within 15 days of his trial or release from jail. Without registering for ASAP, the driver cannot get a restricted driver’s license, and he may even be sent to jail for the remainder of his suspended sentence.
After registration, drivers will have an intake interview and be assigned a case manager who will decide whether they have a substance abuse problem. Drivers without any special substance abuse issues will typically be assigned to a 20-hour, ten-week program that meets once a week at the same time every week for two hours per session. Those drivers with alcohol or other substance abuse problems will take different classes depending on their specific addictions and the availability of classes in their county. The more intensive programs can costs thousands of dollars and involve anything up to mandatory inpatient rehabilitation. Talk to your attorney in detail about the different possible ASAP programs in your area. Elevated BAC, multiple DUI convictions, and drug convictions are among the automatic triggers for mandatory ASAP enrollment.
Failure to sign up for or complete ASAP can cause a driver to violate his probation. If a driver does not show up for an ASAP class, he risks being sent to jail.
When Can I Drive Again?
A Virginia driver who was found guilty of DUI must surrender his license to the bailiff of the court. If a driver does not turn over their license to the court, the suspension will still take effect but the suspension period will not begin until the physical license has been surrendered. This means that if a driver has a 12-month suspension period, they will get their license back 12 months after they surrender it to the court.
Drivers do not get their license back automatically, after the end of the suspension period. A driver who has completed the suspension period cannot get his driver’s license back until the suspension period has expired, he has paid the approximate $175 DMV reinstatement fee, and he has been issued a driver’s license from the DMV.
If a driver has any concerns about whether he can get his license back, the driver should contact the DMV and request a “compliance summary.” The summary will spell out all of the conditions necessary for the driver to get back his license.
In Virginia, a driver’s criminal record is public information and can be accessed online through the Virginia Supreme Court’s website. This same information is gathered by various databases and made available to the public through private investigations and background searches. Each person’s criminal record contains a record of his arrests and convictions.
In Virginia, convictions cannot be expunged. A driver may have the record of his arrest erased from public records only if the charges were dismissed, nolle prosequi, or the driver is found “not guilty.” The record of the defendant’s arrest will be sealed the same way that juvenile records are sealed.
If a driver wants to have his record expunged, he should contact a DUI attorney after the charges have been dropped.