Should I go to trial for my Virginia DUI?

If you’re facing a Virginia DUI charge, at some point you will have to decide – do I go to trial or do I take a plea?

In most Virginia DUI cases, the prosecutor will offer to resolve your case without trial. This is a plea offer. As you might expect, a plea offer involves you pleading guilty to the DUI (or possibly some other offense) and avoiding trial. In exchange, the prosecutor generally makes some sort of sentencing offer.

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

  • Accept the offer, enter the agreed plea, and be sentenced in accordance with the agreement;
  • Reject the offer, plead guilty without an agreement, and have the judge determine the appropriate outcome; or
  • Reject the offer, plead not guilty, and go to trial.

At Abrenio Law, we believe that deciding whether to take a plea offer depends upon whether you’re receiving tangible benefit. If not, and there’s not a high risk of a judging sentencing you harshly, we typically recommend going to trial. Ultimately, the decision will be yours.

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.

Choosing to go to trial can be difficult. But it’s a decision that
is yours to make.

To make the right decision, you must fully understand the plea offer and any possible defenses. You also need to be clear about your priorities. Assuming that you have considered the evidence against you, and your attorney has advised that trial is in your best interest (or at least NOT AGAINST your best interest), going to trial may be the right move.

For some context, we do recommend you read a couple other articles we wrote. These include “will I really get a year for my first DUI?” and “what are enhanced penalties for Virginia DUIs?” 

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 a judge deciding your case. If you are convicted, the judge will also sentence you. Generally, any sentence will be imposed immediately.

In cases where active jail time is likely, 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 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 DUI 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 of your own 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 must. Just remember – you have the right to appeal.

Still have questions?

Make sure to check out our Virginia DUI Practice Page where we’ve answered many other questions you likely have.  James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews.  Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.

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