Can I Appeal My DUI Guilty Verdict?

Depending on the structure of your state’s court system, you may get a non-jury trial first, with an absolute right to appeal any adverse decision and begin all over at a DUI jury trial if you are dissatisfied with the initial trial judge’s decision. This system is antiquated and only remains in a few southern states such as Mississippi, Arkansas and Alabama.

In other states, you only get one trial. In a substantial majority of states, you can opt for either a bench trial or a jury trial. In fewer than a dozen states, this trial must be conducted as a bench trial only for at least first offenses (e.g., New Jersey, Nevada, Hawaii, Louisiana and other states).

Appellate courts are generally in place to review the actions of the lower court that handled your trial. Generally, the focus of an appeal is not to look at issues of “guilt” or “innocence.” Instead, the purpose of an appeal is to review rulings of the trial court that led to a failure of justice or a misapplication of state law or procedure.

In an appeal of a criminal conviction, you no longer have a presumption of innocence as you did at trial. On appeal, the evidence is reviewed with an inference that the verdict reached was correctly rendered. Appellate courts utilize different “standards of review” in considering a multitude of different types of appellate errors that a trial judge may have committed. Your experienced DUI-DWI attorney will know all these “standards of review” that apply in your state.

Since this is the “focus” of an appeal, these challenges are only successful where timely objections or challenges were made to testimony or evidence (such as your breath test result) that the trial judge allowed the jury to hear as part of your case. Also, any adverse rulings that were made at any pre-trial or mid-trial motions can be appealed. Hence, your attorney’s written motions, oral objections or motions, jury challenges for “cause” (meaning that your attorney sought to exclude a juror who was obviously biased) are all possible places that the judge made erroneous rulings that may cause your conviction to be ultimately overturned.

A trial transcript can be from several hundred to more than a thousand pages in length. This transcript contains the “record” of all that was done in the case. All legal challenges contained in the official record offer a chance for review of erroneous rulings. It is these rulings of law made by the judge (at trial or at pre-trial motions) that are the basis of most appeals. Prosecutor errors that are not corrected or properly ruled upon by the judge offer another avenue for reviewing your conviction. It is these pre-trial and mid-trial decisions that form the basis of most successful appeals.

You must file an appeal quickly after your jury trial ends.

Once your trial is concluded, your attorney generally has a very limited time in which to file an appeal on your behalf. Once this time limit has passed, very rarely will the appellate court hear your challenges made “out-of-time.” Instead, the appellate court will simply rule that your appeal is too late.

Once your notice of appeal has been filed, your attorney has to obtain the transcript of your trial or hearing. This will cost you money to get the transcript prepared by the court reporter. The preparation of this record is your expense, generally. Your attorney will then scour the “record” in your case for errors.

Your attorney must also order the clerk’s “record” of all documents that were filed before, during and after your trial. This is sent directly by the clerk to the appellate court. This is a certified account of every document filed in the case, including the date and time of filing. This will also carry a fee for preparation, which is also a cost item for you.
Once an appeal is timely and correctly filed, it typically takes anywhere from nine to twenty-four months for the appellate court to render its decision. Your attorney may or may not be asked to present an oral argument to the appellate judges to assist them in making their decision. The trend today is that most appellate courts prefer to only receive written argument, and do not hear oral arguments from the attorneys.

Can I appeal the appellate court’s ruling to a higher court?

If the initial appellate court does not grant relief from your conviction, you may still have the opportunity (in most states) to bring a form of request for further review to the highest court in your state, typically the state Supreme Court. Your highest court not only looks at the possible errors of law, but may also review the legal reasoning given by the intermediate appellate court.

Usually, the request for review by your highest court is a matter of “discretion” and not mandatory by the highest court. Often, these requests or petitions for further review are called “petitions for certiorari.” Generally, your state’s highest appellate court gets to choose which cases it hears (and more importantly), which it will not.

Once the highest court in your state has either accepted your petition for further review or refused to take the case on certiorari, almost all cases are at the end of the final “review” stage. In rare circumstances, a federal or state “habeas corpus” proceeding may be sought. Almost never is this done in DUI-DWI cases, however.