Anonymous said on August 15, 2007  

Why would the defendant not be protected by double jeopardy?

 Ken Lammers said on August 15, 2007  

Because, in Virginia if you are convicted of something in General District Court you have an absolute right to appeal it to Circuit Court and get a brand new trial (because the general district court is constitutionally infirm). He exercised this right, in efect wiping his former trial off the books. I nol prossed before he actually had a trial and therefore, he has no prior conviction.

Basically, for defendants, in all matters involving the possibility of jail, a trial in general district court is just a preliminary hearing with the option to have a new trial if they lose and think they can get a better result if they try it again.

 Gregory said on November 18, 2010  

Virginia is not alone. Massachusetts has the same archiac system. It costs local governments a ton of money to send police officers to court twice to try the same offense.

 Joe Patituce said on July 13, 2011  

Wow.. I've honestly never heard of that type of system. I know this is an older post but does Virginia still use this?

 Ken Lammers said on July 13, 2011  

Yes, this system keeps tons of cases from going to circuit court but still allows those who really want a jury and to have a trial on the record (not available in lower trial court) to press forward and get all their constitutional rights.

I'd estimate that 99.99% of all misdemeanor cases never appeal to circuit court. If you take traffic cases out, maybe 5% of misdemeanors get appealed. This will vary from location to location, usually depending upon whether the defendant, or her attorney, figure that the circuit court will be easier or harder on defendants generally.

 Anonymous said on March 14, 2012  

Why the heck did the guy appeal if he had beat a DUI down to a reckless?? Also don't forget in your element analysis that "DUI's" can be proved two ways: 1. "under the influence" OR, 2. a per se offense (.08 or more, REGARDLESS of the alcohol's effect on your performance...even if there was NONE!) Since there are different kinds of DUI's then there are different possible elements that could comprise a DUI. Reckless is clearly not a lesser included of a per se offense DUI, and that fact alone muddies the analysis of whether it can be considered a lesser of DUI, since there are DUI's that it is NOT a lesser included offense of.