Any DUI case that is a 3rd offense within 10 years is considered a felony in Virginia. For this reason, if you are charged it is imperative that you understand exactly what you are facing and consult with an experienced Virginia DUI lawyer to assist in building your defense and minimizing the harm of your offense. To learn more, read this webpage, and consider calling our VA law offices to schedule a consultation with an attorney.
With felony DUI cases, the process is significantly different than for a misdemeanor DUI case. In a felony DUI case, the matter begins in the General District Court, but rather than be tried there as with the misdemeanor case, only a preliminary hearing is held in the General District Court. This is sometimes called a “probable cause hearing” and is for the purpose of determining whether there is sufficient evidence of the DUI for the case to go forward to trial in Circuit Court.
If the court finds that there is sufficient evidence, then it certifies the case to Circuit Court where the matter goes in front of a grand jury. The grand jury will then hear evidence in a closed meeting from the arresting office and, in most cases, issues an indictment. Once an indictment has been issued, the matter is set for trial. The person is typically arraigned prior to that time where the defendant will plead guilty or not guilty. There also may be any number of pre-trial motions that are filed and heard pre-trial, whereas with a misdemeanor these issues are generally raised during trial.
Ultimately, the felony DUI case is tried in Circuit Court and can be tried in front of a jury if requested. misdemeanor DUIs are always tried in front of a judge.
It makes a big difference to have experienced counsel in a felony DUI case. First, because the procedural aspects are very different. This is not a matter where everything is going to be tried on the same day in General District Court and many of the objections that can be raised will simply be raised during the trial.
In Circuit Court cases, many of the challenges have to be made by separate motion which is filed prior to the trial itself. In addition, because there’s the possibility of a jury being present, it’s critically important to have a lawyer that has experienced trying jury cases. The kinds of evidence that you present, the kinds of ways in which you attack the prosecution’s evidence, and the arguments that you make at the end of the day are actually quite different if they’re being directed to a jury as opposed to a judge.
The very first step that I always take in a felony DUI case is to sit down with the accused and go through everything that they remember in as much detail as possible.
In the course of that, I take extensive notes and try to learn everything I can about the case. This is for two reasons:
The other thing that I like to do right away is to get a copy of the police complaint so that I can see exactly what the officer wrote on the criminal complaint that night. In some jurisdictions, I am able to get the copy of the police report at an early phase. All of these things provide me additional insight and information and the more information I have, the better able I am to craft the plan of attack for a particular case with particular facts.
It’s also important to look closely at the previous DUIs in a felony case since not every DUI conviction, and particularly not every out of state conviction, can be used to prove the prior convictions that are necessary for a finding of guilt in a felony DUI case.
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