How do you file a DUI appeal in South Carolina?
Sometimes you win a DUI case by getting a dismissal before trial. Other times, you may get an acquittal from a jury at trial. Still other times, you may win when the circuit court or the court of appeals reverses your conviction, and the prosecutor dismisses the case before a retrial…
The point is – if you are going to fight your charges and fight to win, it’s not over until it’s over. Even what seems like a hopeless case at trial may become a dismissal, a favorable plea offer, or a trial with better evidence the second time around.
In this article, we will discuss DUI appeals in SC, including:
- DUI appeals from the magistrate or municipal courts,
- DUI appeals from General Sessions Court, and
- Other post-conviction remedies like post-trial motions and PCR.
DUI Appeals in SC – How Does it Work?
When the judge makes a mistake of law at trial – admitting evidence that should have been excluded, denying a motion that should have been granted, or overruling a valid objection, for example, you can file a “direct appeal” asking the next higher court to overturn your conviction.
You must “preserve the record” at every step during your trial, by:
- Making valid objections to inadmissible testimony, evidence, or statements by opposing counsel,
- Make valid motions exclude evidence based on constitutional violations, statutory violations, relevance, or other evidence rules, and
- Putting the grounds for each objection and motion on the record, even if that means insisting that the judge ask the jury to step out of the courtroom for a “matter of law.
In many cases, it is worthwhile to make as many valid objections and motions as possible, because – especially in the lower courts – some judges will deny the defense’s motion by default, creating “appeal insurance.”
Part of your attorney’s trial strategy should always be setting your case up for a possible appeal so that, even if you do not win at trial, you still have a shot at winning your case on appeal.
DUI Appeals from Magistrate Court or Municipal Court
The procedure for a DUI appeal varies depending on the trial court. If your trial was in the magistrate or municipal court, you will:
- File your appeal with the Court of Common Pleas (the “civil side” of South Carolina’s Circuit Court),
- Make sure that the magistrate or municipal court sends the “return” and all evidence to the circuit court, and, if they do not, file a writ of mandamus to force them to send the file to the circuit court,
- Get the recording of the proceeding from the lower court and have a court reporter transcribe it for use in the appeal, and
- Argue the appeal at an “appeal hearing” that will be scheduled on the non-jury roster.
Either side can then appeal the result from the circuit court to the SC Court of Appeals (and then to the SC Supreme Court, and then to the US Supreme Court if there is a federal issue).
DUI Appeals from General Sessions Court
The procedure for a DUI appeal from General Sessions Court (or from Common Pleas Court in a DUI appeal that came from the magistrate or municipal court originally) is different.
The appeal is filed in the SC Court of Appeals, and then there is an appellate process outlined in the appellate rules that includes strict deadlines and procedures for:
- Filing the notice of appeal,
- Ordering the transcript from the circuit court proceedings,
- Filing initial briefs, the Record on Appeal, and Final Briefs, and
- Oral arguments.
What is the Deadline to File a DUI Appeal in SC?
In most cases, the deadline to file your Notice of Appeal is ten days, although the time can be extended if you file a post-trial Motion for New Trial.
If you were convicted at trial, you should immediately, in writing, ask your trial attorney to file a Notice of Appeal on your behalf. Then, if your trial attorney is not going to be your appeal attorney, immediately contact your appeal lawyer so they can request transcripts and begin work on your case.
What Happens When You Win Your Appeal?
What happens next depends on how the appeal was decided. In most cases, the remedy will be a remand to the lower court for a new trial, but other remedies are possible like remanding the case for a directed verdict of acquittal or remanding the case for resentencing only.
If you lose a direct appeal, you may still have the opportunity to file a PCR action and keep fighting…
Other Post-Conviction Remedies – Appeal is Not the Only Option
Appeal is not the only option after losing a DUI trial – depending on the circumstances, many people should file post-trial motions before filing their notice of appeal, and others may be able to file a PCR (post-conviction relief) action after their direct appeal or instead of a direct appeal.
The most common post-trial motion in a criminal case is probably a motion for a new trial which allows the trial judge to correct mistakes made during the trial or which may be based on newly discovered evidence.
When a motion for a new trial is filed, the deadline for filing your notice of appeal will be extended beyond ten days.
Post-Conviction Relief (PCR) for a DUI Conviction?
You can also file a post-conviction relief (PCR) action in Common Pleas Court to get a DUI conviction overturned.
Where a direct appeal is based on mistakes made by the trial judge, a PCR action is usually based on mistakes made by your trial lawyer or your appeal lawyer. Because a PCR action must include all claims, and, with some exceptions, you cannot file a second PCR action later, you should wait until your direct appeal is over before filing your PCR claim. This way, you can include any mistakes that were made by the appeal lawyer as well as the trial attorney.
To win a PCR claim, you must prove that 1) your trial or plea attorney provided “ineffective assistance of counsel,” and 2) their mistakes prejudiced your case (affected the outcome).
In most cases, a successful PCR claim will result in a new trial, although the case could be dismissed or resolved before the retrial.
Questions About DUI Appeals in SC?
The Myrtle Beach DUI defense attorneys at Coastal Law represent clients charged driving under the influence, including DUI appeals from the magistrate, municipal, and General Sessions Courts.