Should I go to trial for my Virginia DUI?

For everyone facing a Virginia DUI charge, at some point you will have to make a decision – Do I go to trial or do I take a plea?

In most Virginia DUI cases (but not all and will depend on each case), the prosecutor will make an offer to resolve your case without trial. This is a plea agreement offer. As you might expect, a plea agreement involves you pleading to the DWI, or some other offense, in a way that avoids a trial. In exchange for you waiving your right to a trial, the prosecutor generally makes some sort of sentencing offer. There is a broad range of offers that could be made, but generally, they include a reduction to a lesser charge, or a particular sentence or fine.

Once the offer is made, you generally have three options:

  1. Accept the offer, enter the agreed plea, and be sentenced in accordance with the agreement;
  2. Reject the offer, enter a guilty plea without an agreement, and have the judge determine the appropriate sentence; or
  3. Reject the offer, enter a plea of not guilty, and go to trial on the case.

At Abrenio Law, we believe that deciding whether to go to trial or take a plea agreement really depends upon whether the prosecutor is providing you a tangible benefit by taking the plea. If, not, and there’s not a high risk that you’d get a worse outcome if you’re convicted, we typically recommend going to trial. But ultimately, that will be your decision to make.

Choosing which option is in your best interest is a very difficult task, but it will ultimately be up to you. And it will depend on the specific facts of your case relative to the plea agreement being offered.

To make this decision, you need to work with your attorney and ask any and all questions you might have. You need to fully understand the plea agreement offer and know if you have any possible defenses. You need to determine what your priorities are and you need to make an informed decision.

Assuming that you have considered the evidence against you, you do not like the plea agreement, and your attorney has advised that trial is in your best interest (or at least NOT AGAINST your best interest), it’s not unusual to conclude that your best option is to fight the charge.

Can You get a Jury? Not in the General District Court.

All cases in the General District Courts, whether civil or criminal, are heard by a judge and not a jury.[1] Therefore, you will have one judge deciding your case. The judge will decide what evidence can be admitted, and whether or not the evidence proves you are guilty. Many things can happen. If you are convicted, the judge will also impose a sentence. Generally, any sentence will be imposed immediately, but occasionally there are circumstances where sentencing is continued to another date.

In any case where it is likely you will receive active jail time, you MUST make personal preparations as if you were going to serve time. That means that if you have young children, you must have someone ready to care for them. It is not a good idea to bring them to court hoping for the best.

That also means being prepared to miss work or school. Judges have simply very little patience for those who come unprepared. They see many cases every single day. Do not expect them to treat you any different than everyone else.

If an unfavorable outcome is reached, Virginia grants you an automatic right to something called a de novo appeal. You have ten (10) calendar days to note your appeal from the General District Court to the Circuit Court. If you exercise this right, your case will be moved up to the Circuit Court and heard by a different judge.

In the Circuit Court, you also have the right to a trial by jury.

Because a DWI is a misdemeanor, there will be seven (7) jury members. In a jury trial, the verdict must be unanimous. The jurors must all agree that you are guilty before you can be convicted.

You must decide whether or not to appeal, and you must decide whether or not you want a jury trial. Your decisions should depend on the facts and circumstances of each case, and you should ask your attorney questions so you understand what possible consequences any decision might have.

When your case is in the General District Court, your focus should be getting an outcome that you will not have to appeal. It is best not to focus on an appeal until you have something to appeal. Just remember – you have the right to appeal.

More Questions about your Virginia DUI? Give Abrenio Law a call!

This is a short article about Virginia DUIs. Likely your case warrants a much more in depth discussion. If you have more questions review, give Abrenio Law a call at Ph. 703-570-4180. You can also learn more about Owner James Abrenio here!


[1] In some cases, a misdemeanor DWI charge is simply indicted in the Circuit Court. Those types of cases are not discussed in this book.