Avoid the common pitfalls when appealing a DWI decision

Knowing the strategies for success and avoiding the common pitfalls can be essential to successfully appealing a DWI decision. Fighting a DWI charge in court can be difficult, so hiring an attorney to guide you during the appeals process will give you valuable perspective. Appealing the legal interpretations and conclusions which lead to a guilty verdict is part of due process and within your rights as a US citizen. Here is some advice to help prove your innocence in the appellate court.


Do understand which issues are subject to appeal and which are not

Not all issues are can be appealed. Generally, only legal issues can be overturned by a higher court. That means that the higher court will adopt the facts found by the trial court. For example, if the trial court determined, based on the evidence, that the defendant operated a vehicle, then the higher court will adopt this factual finding. If, however, the trial court found the police officer had a legally sufficient basis to effectuate motor vehicle stop and pull over the driver, a higher court can review whether or not the trial court’s legal conclusion was valid. It should be noted, however, that certain jurisdictions (e.g. N.J.) allow the first appeal from Municipal Court to County Court to include a de novo review of the facts and to rule on the entire case anew.

Do preserve your right to appeal while still before the trial court

An appeal is not a “do over”. The appeal is an opportunity to challenge specific decisions made by the trial court judge. If the trial court judge does not rule on an issue, then the appellate court cannot review that issue. For example, if a defendant feels that a piece of evidence should be excluded because it was improperly obtained, then the defendant must object to the admissibility evidence while still at trial. If the judge overrules the objection and permits the evidence to be shown, then the defendant can appeal that decision. If no objection is made, then the issue is not preserved for appeal and a higher court will not overrule the trial court’s ruling.

Do consider hiring an attorney for the appeal

As discussed above, the appeal process entails a review of the law as applied by the trial court. For this reason, the legal arguments are significantly more complex than in the trial phase. A person may feel comfortable representing themselves at trial as they were present at the scene of the alleged DWI and know the facts better than anyone else. The appeals process, however, will focus on the legal intricacies of the DWI case and will often be more aptly handed by a legal professional.

Do order the transcript from the lower court

An appellate court has only one way of knowing what happened in the lower court, and that is from the transcript of what was said in court and on the record. Such a transcript is referred to as “minutes”. Mere representations of what each attorney said or how a judge ruled will not be given any weight by the appellate court. Each assertion of what transpired at the DWI hearings or trial must be supported by a citation to a page number and line in a transcript. It can take the court reporters some time to prepare the minutes, so order them as soon as the DWI trial is completed and be prepared to pay a pricey transcription fee.


Do not expect the Appellate Court to automatically review a DWI case

Not every jurisdiction allows for an appeal to be heard as of right. In other words, many jurisdictions refuse to hear cases which they feel have no merit on appeal. The constitution affords every defendant the right to a fair trial, but that right does not extend to the appeals process. Many jurisdictions require a contestable legal issue or else the appeal with be rejected without review.

Do not forget you need not lose at trial to appeal a decision

Often times a DWI case rests on a specific piece of evidence. This can be a breath test, the legality of the police officer’s stop or the procedural accuracy of field sobriety tests. If a judge rules against a defendant’s motion to exclude such evidence, then it might make sense to plead guilty to DWI as there is little chance of winning at trial. A defendant must know that he or she can still appeal the judge’s ruling on the evidence despite the guilty plea. Each legal decision stands independent from the rest of case and can be appealed on its own. Should the appellate court overturn the trial court and exclude the evidence, the court case would continue from the moment of the original motion and before the conditional plea is taken. The plea is “conditional” in that it is only valid if the defendant loses the appeal.

Do not forget to ask for a stay of the lower court sentence

Many courts allow for a stay of a DWI sentence if there will be an appeal. A stay of sentence means the judge postpones the imposition of any fines or license suspension until the completion of the appellate process. However, the judge will not stay a DWI sentence unless a defendant makes the request at the time of sentencing.

Do not forget about the sentence

One issue that often gets overlooked on appeal is the legality sentence issued by the trial court judge. States legislatures often set guidelines which set forth the maximum and minimum penalties for a DWI offender. If a Judge oversteps his authority and issues a sentence in excess of the maximum, then this constitutes a legal error which can be reviewed and overturned by an appellate court.

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Understanding the appellate process can be a tremendous asset in a defendant’s efforts to fight a DWI charge. A guilty verdict at trial is not the end of the judicial process as one’s right to due process includes the right to appeal. While factual findings of the lower court are generally not subject to review, the legal interpretations and conclusions of the trial court can be overturned on appeal. It is through the appellate process that a DWI defendant can challenge the actions of the police and continue their efforts to prove one’s innocence.

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Judah Fuld, EsqAttorney

Judah Fuld practices criminal defense and civil litigation in New York and New Jersey, before both State and Federal courts. He handles legal matters including felony and misdemeanor arrests, traffic court summonses, false arrest and police brut...

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