appeal from prosecutor?

[luckygirl]

What is the name of your state?What is the name of your state?What is the name of your state? VA

I went to court this week for a 1st offense DUI and refusal. The judge dismissed all charges for a lack of probable cause (miracles DO happen!). However, after we left the courtroom, I was told that the prosecuting attorney filed an appeal for my refusal charge. I was shocked because I didn't know they could do that! Isn't that double jeopardy? I haven't received any papers from the court yet. I have a great lawyer, but I can't really afford to pay him to go to court with me again, but I will if I have to. I got lucky the first time and I think my chances of getting this dismissed a second time are slim to none. My lawyer said that in his 20+ years of practice he has never had a prosecutor appeal a case. Is it even possible? If so, does the cop that pulled me over even have to show up this time for me to get convicted? Thanks in advance for any information you can give me. The Virginia Code states some circumstances under which the Commonwealth can appeal and the only one that comes close to matching my case has something to do with a "writ of error" which I don't completely understand.

 

[seniorjudge]

Are you sure that you just didn't lose a probable cause hearing and that the prosecutor is going to re-file the charges?

If all you had was a probable cause hearing, jeopardy has not attached.

Very generally, jeopardy does not attach until after the first government witness has started testifying at a trial (not a suppression hearing).

 

[Rhubarb297]

What is the name of your state?What is the name of your state?What is the name of your state? VA

I went to court this week for a 1st offense DUI and refusal. The judge dismissed all charges for a lack of probable cause (miracles DO happen!). However, after we left the courtroom, I was told that the prosecuting attorney filed an appeal for my refusal charge. I was shocked because I didn't know they could do that! Isn't that double jeopardy? I haven't received any papers from the court yet. I have a great lawyer, but I can't really afford to pay him to go to court with me again, but I will if I have to. I got lucky the first time and I think my chances of getting this dismissed a second time are slim to none. My lawyer said that in his 20+ years of practice he has never had a prosecutor appeal a case. Is it even possible? If so, does the cop that pulled me over even have to show up this time for me to get convicted? Thanks in advance for any information you can give me. The Virginia Code states some circumstances under which the Commonwealth can appeal and the only one that comes close to matching my case has something to do with a "writ of error" which I don't completely understand.

Not an easy question. Your lawyer has the right instincts. Generally prosecutors can't appeal. If you're aquitted or the charges or dismissed for lack of evidence, the defendant walks and the prosecutor can't do anything. However, I've seen cases where the prosecutor is allowed to appeal technical legal (as opposed to evidentiary) issues. This allows the prosecutor to get a precedent regarding a legal issue that might come up in future cases. But to apply it retroactively to you, to file charges again against you? I wouldn't think so.

 

[Rhubarb297]

Are you sure that you just didn't lose a probable cause hearing and that the prosecutor is going to re-file the charges?

If all you had was a probable cause hearing, jeopardy has not attached.

Very generally, jeopardy does not attach until after the first government witness has started testifying at a trial (not a suppression hearing).

If there is a hung jury, I don't think double jeopardy attaches. Time and time again, I've seen defendants with hung juries being retried.

But if the prosecution tried to dismiss the case (in the hopes of refiling later) after they've started introducing witnesses, I don't think the judge would allow them.

Of course, that's not this case. I imagine you're right that there's something else going on in this case.

 

[seniorjudge]

I didn't really want to get into a double jeopardy lecture, but a hung jury is not a trial and thus no jeopardy.

https://forum.freeadvice.com/archive/index.php/t-210032.html


But it is quite a bit more complicated than that:

http://faculty.ncwc.edu/toconnor/325/325lect07.htm

 

[luckygirl]

No, it wasn't a probable cause hearing, it was the real deal. It was the trial. The cop testified and everything - is that what you mean by government witness, SeniorJudge? The whole thing seemed to last forever when it was happening.

At the end after my lawyer made his closing statement, he said, "I don't see where there's a case. Where's the case?"

The judge said, "I was thinking the same thing... Dismissed."

The prosecuting attorney said, "What about the refusal?"

The judge said, "I said dismissed, all charges are dismissed."

Then she, the prosecuting attorney, said, "I'm going to appeal it." The next thing you know she's in the appeals office with the cop.

The judge decided that there was no probably cause to pull me over ( I didn't really run a stop sign), so my DUI was dismissed. Does that mean that my refusal would also be automatically dismissed, or should that have been an entirely separate thing? Do they have to have probable cause to give you a BAC test?

 

[luckygirl]

By the way, my lawyer is a stand-in judge.

 

[seniorjudge]

"...The cop testified and everything - is that what you mean by government witness, SeniorJudge?..."

Yes.

"...The judge decided that there was no probably cause to pull me over ( I didn't really run a stop sign), so my DUI was dismissed. Does that mean that my refusal would also be automatically dismissed, or should that have been an entirely separate thing? Do they have to have probable cause to give you a BAC test?..."

If there was no probable cause, then the charge should be dismissed. The business about refusing a breath test is a bit stickier though. You will probably have to fight that through the licensing agency in your state.

Please post back with the results. This is a pretty strange deal.

 

[Rhubarb297]

I didn't really want to get into a double jeopardy lecture, but a hung jury is not a trial and thus no jeopardy.

https://forum.freeadvice.com/archive/index.php/t-210032.html


But it is quite a bit more complicated than that:

http://faculty.ncwc.edu/toconnor/325/325lect07.htm

Well you were saying dj attaches from the first state's witness. Obviously though when you have a hung jury, the prosecution has introduced its witnesses, yet dj does not apply.

But yes DJ is a very complicated area of the law.

 

[luckygirl]

The VA Code says under penalties for refusal,

"The procedure for appeal and trial of a first offense of [BAC test refusal] shall be the same as provided by law for misdemeanors... If the court finds the defendant guilty of a first offense as charged in the warrant or summons issued pursuant to [BAC test refusal], the court shall suspend the defendant's privilege to drive for a period of one year... The court shall forward the defendant's license to the Commissioner of the Department of Motor Vehicles of Virginia as in other cases of similiar nature for suspension of license."

Last July in VA, DUI laws were toughened and refusal to submit to a BAC test was made an official crime due to "implied consent" and the hearing is to take place in traffic court (which is where I went).

I just went to the VA DMV website and did some research on violations. It says, "When you are convicted of a traffic violation, the court notifies the Department of Motor Vehicles (DMV)." and then goes on to describe the procedures the DMV takes to assess points, suspend license, etc. A refusal conviction in the DMV records gives you 6 demerit points and stays on your driving record for 11 years, just like a DUI conviction. However, if I'm never convicted of anything in court, then the DMV doesn't get notified of anything, so according to this, I keep my license.

I guess I'll see what happens. I'll post the results.

 

[luckygirl]

Question for SeniorJudge

I went to the link you posted regarding double jeopardy. According to that, everything lines up for jeopardy to have attached for me. There's only one gray area and my lawyer is on vacation, so I haven't gotten to talk to him about this yet, so I thought I'd ask you because this is burning a hole in my brain!! The judge dismissed my charges. Is a dismissal the same thing as an acquittal? Thanks for your help!

 

[seniorjudge]

Q: The judge dismissed my charges. Is a dismissal the same thing as an acquittal?

A: No.

Dismissal: For whatever reason, the court or prosecutor could dismiss charges. If I were a prosecutor, e.g., and one of my witnesses didn't show up, I could dismiss a charge and re-file it later. If were the judge and the prosecutor didn't show up, I would dismiss the charge but the prosecutor could later re-file it. (No jeopardy in either example.)

Acquittal: This means you had a trial and were found not guilty. (Jeopardy has attached.)

 

[luckygirl]

Just to Verify

There was no probable cause for the cop to pull me over, so the judge dismissed it. I wish the judge had said "not guilty" instead of "dismissed." So this means that jeopardy has not attached for me? If it hasn't, then I guess I can say goodbye to my license.

 

[seniorjudge]

There was no probable cause for the cop to pull me over, so the judge dismissed it. I wish the judge had said "not guilty" instead of "dismissed." So this means that jeopardy has not attached for me? If it hasn't, then I guess I can say goodbye to my license.

Perhaps the prosecutor will not refile; who knows.

But my earlier post had nailed it correctly:

Are you sure that you just didn't lose a probable cause hearing and that the prosecutor is going to re-file the charges?

If all you had was a probable cause hearing, jeopardy has not attached.

Very generally, jeopardy does not attach until after the first government witness has started testifying at a trial (not a suppression hearing).

 

[luckygirl]

Court coming up

Well, my lawyer got back from vacation and I got a chance to talk to him. The reason why the prosecutor can appeal my refusal charge is because it is a civil matter and not a criminal matter. Both charges - the DUI and Refusal - were dismissed at an actual trial (*it was NOT a probable cause hearing*). I cannot be tried again in court for the DUI because it is a criminal offense and that would be double jeopardy. Double jeopardy, however, dose not apply to civil cases and, therefore, I can be tried again for the refusal.

Well, that explains it. I go to court in a month. I hope the cop doesn't show up.

Thanks for your help anyway, SeniorJudge.