25th Mar 2021
What happens if discovery is not provided prior to the original DUI Trial Date?
For any criminal/traffic cases in General District Court, including DUI/DWIs, in the event the Commonwealth does not provide discovery (aka. evidence) by the original trial date, then the Defense is entitled to a continuance.
The below FAQ about tardy Discovery is limited to criminal/traffic matters pending in General District Court only.
Q. Is it strange that discovery has not been provided by the original trial date?
A. Not really. There can be multiple reasons as to why discovery has not been provided. Including, but not limited to, the police have not dropped of the police report or police video with the Commonwealth; the Commonwealth Attorney Office has a large backload of discovery requests and is running behind; the Commonwealth Attorney assigned to a case ahs not reviewed the police video yet.
Q. Can the charge(s) in General District Court get dismissed if discovery is not provided by the original trial date?
A. No. The Virginia Rules of Supreme Court states that the only remedy is that the defense may seek a continuance.
Q. If the Commonwealth does not provide discovery by the DWI original trial date, can the defense obtain other benefits (e.g. excluding admissible evidence) besides being entitled to a continuance?
A. No, the remedy is strictly limited to allowing the defense to seek a continuance. No other defense remedies may be provided by the court.
Q. What if the Commonwealth failed to provide discovery by the continued trial date?
A. The defense remedy is still limited to be entitled to a further continuance. I.e., regardless of if the Commonwealth failed to provide discovery and the trial date keeps getting pushed back, the only remedy is for the defense to obtain further continuance of the trial date.