It depends. In general, you can file an appeal in a criminal case if you can show one of two things. Either the judge made a mistake in the law or there was a clear mistake in fact. In either case, the error must have had the ability to change the outcome of your case.
In North Carolina, the primary appeal for a misdemeanor conviction (and most DWIs are misdemeanors) is to ask for a new trial at the superior court. You have 10 days from the sentencing in your original trial to file the request for a new trial.
Before granting a new trial, the judge must find that there was a legal or clear factual error that could have affected the outcome of your case. Once the judge finds this, a new trial will be scheduled. It will be just like the first trial and will often involve all of the same parties and witnesses, except that it will take place in the superior court instead of the district court.
If you are convicted again on your second trial, you might still be able to appeal. It depends again on a showing of legal or clear factual error. After the superior court, you could appeal to the North Carolina Court of Appeals and, finally, the North Carolina Supreme Court. In these appeals, the case will not be tried again. Instead, arguments will be made based on the record of your second trial.
Can I appeal if I pled guilty?
Again, it depends. The law’s basic assumption is that you shouldn’t be allowed to appeal after a guilty or no-contest plea, but there are exceptions.
First, you generally do have the right to ask for a new trial as long as your guilty plea resulted in a modification, reduction or dismissal of charges. However, if a new trial is granted, all of your charges will be reinstated to their original position. This is especially important for people who were originally charged with a felony but pled guilty to a misdemeanor as part of a plea bargain.
You have more limited rights to appeal to the Court of Appeals or the Supreme Court after a guilty plea. You can file these types of appeals:
- Appeal of your sentence, if you can show it was not objectively supported by the evidence or it exceeded statutory limits
- Appeal a denied motion to withdraw your guilty plea
- Appeal a denied motion to suppress evidence that could affect the outcome of your case and if your lawyer notified the prosecutor and judge of their intent to appeal the ruling before you pled guilty
Will I get to wait at home for my new trial?
This depends on whether you were allowed to wait at home for your original trial. When the superior court grants a new trial, the district court’s orders are put on hold, so you can’t be punished for that original conviction as it is being appealed.
However, if you were held before trial because bail was denied or because you couldn’t make bail, that condition remains in effect. However, the district court judge has the authority to make changes or additions to your release conditions, such as waiving, raising or lowering your bail.
If you appeal further to the Court of Appeals or the Supreme Court, however, you will generally begin your sentence while you are waiting on the appeal. In rare cases, the court may change your release conditions or even release you while you wait for the appeal to conclude.
If you have been convicted of DWI, you need a compassionate appeals attorney who will go the extra mile to limit the negative consequences of that conviction, including by leveraging appeals.