When you’re convicted of a DUI at trial, it isn’t necessarily the end of the case. You might still be able to beat the charge by pursuing an appeal. Generally, anyone who’s convicted of a DUI charge (or any other crime) has the right to appeal the conviction to a higher court.
Appeals are a lot different than criminal trials. Appeals typically move quite a bit slower than trials. And, whereas trials normally involve lots of in-court action like witness testimony and attorneys arguing to the jury, appeals are done mostly through written argument.
As with the DUI trial process, the specific procedures for DUI appeals differ by state and court. But here’s how it generally works when you appeal a DUI conviction.
Notice of Appeal
The first step in appealing a DUI conviction is filing the notice of appeal. Following the sentencing hearing at your trial, you’ll typically have something like 30 or 60 days to file a notice of appeal. Generally, there’s no fee for filing an appeal in a criminal case. You just have to fill out the paperwork and file it with the court clerk.
Appellate Record
After the notice of appeal is filed, the court of appeal will order the trial court clerk and court reporter to produce the “appellate record.” The appellate record is normally comprised of the transcripts of the trial (called the “reporter’s transcripts”) and all the paperwork and orders that were filed in the trial court (called the “clerk’s transcripts”).
It usually takes at least 30 days for the court clerk and court reporter to put together the appellate record. Once the record is ready, copies are sent out to the “appellant” (the person who is appealing the conviction), the prosecution (or state attorney general), and the court of appeal.
Right to an Appellate Attorney
Generally, you have the right to an attorney represent you in a DUI appeal. So, if you can’t afford to hire your own attorney, the court of appeal will appoint an appellate attorney to represent you at the state’s expense. Representing yourself in an appeal is an option but typically isn’t advisable. If you want to maximize your chances of winning your appeal, it’s best to let an experienced appellate attorney handle your case.
Appellate Briefs
The written arguments that the attorneys make in an appeal are referred to as “briefs.” Generally, the briefs and the arguments they contain can be based only on the appellate record. In other words, in the appellate court, you can’t present new evidence or rely on evidence that wasn’t presented at the trial. An appeal isn’t a new trial—it’s a review for error of the trial that’s already taken place.
The first brief—called the “opening brief”—is filed by the appellant. In this brief, the appellant lays out all his or her arguments as to why the conviction or sentence was improper. The prosecution then gets to file a “response brief.” In the response brief, the prosecution’s typically tries to discredit the appellant’s arguments and explain why the conviction and sentence were lawful. The appellant gets the last word with the “reply brief.” The reply brief gives the appellant the opportunity to respond to the prosecution’s arguments.
Depending on the case, the briefing process normally takes about three to six months start to finish.
Oral Argument
Once all the briefs have been filed, the court of appeal will set a date for oral arguments. In many states, appeals are decided by a three-judge panel. The oral argument gives the attorneys the opportunity to argue directly to the judges and answer any questions the judges might have. The time allocated for oral arguments is usually 15 minutes or so for each side. When the oral arguments are complete, the case is “submitted” for a decision.
Appellate Court Opinion
Appellate courts issue written decisions called “opinions.” Sometimes a court of appeal will file the opinion shortly after the oral argument. In other cases, it might take several months or more before the opinion comes out.
The chances of winning a DUI appeal are fairly slim. In most case, the appellate court “affirms in full”—meaning, the court of appeal rejects the appellant’s arguments and leaves the conviction and sentence intact.
However, in some cases, the court of appeal agrees with the appellant and finds there were legal errors that may have affected the outcome of the trial or the sentence was improper in some way. In such a case, the court of appeal will “reverse” the erroneous portion of the conviction or sentence. Depending on the situation, a reversal might involve the court of appeal striking down the appellant’s DUI conviction altogether or just modifying certain terms of the sentence.
Appellants who lose their appeals usually have the option of continuing the fight by appealing to a higher court such as the state’s supreme court.