Contact for a Free Consultation 714-721-4423

Motion to Dismiss as Defense Strategy in California Criminal Cases

In California, as elsewhere in the United States, when the prosecution charges you with a crime, the state or federal government must prove guilt beyond a reasonable doubt. When the evidence is not sufficient, a smart criminal defense attorney will make a motion to dismiss. But lack of evidence is not the only reason to make a motion to dismiss. Other reasons exist, and that is why it is important to retain the help of a criminal defense lawyer.

But there's another reason you need a criminal defense lawyer who knows how the system works: a motion to dismiss does not necessarily mean you will never be charged for the same crime again – it depends if the case was dismissed with prejudice or not, and a criminal defense lawyer will argue for dismissal with prejudice, which means the prosecutor cannot refile the case again.

Richard Wagner, a criminal defense lawyer in Orange County, will review your case and make a motion to dismiss when appropriate. Typically, this type of motion is filed early in the case. To learn more about how he will represent you and defend your case, contact him today at (714) 721-4423 to schedule a FREE PRIVATE CONSULTATION.

Motion to Dismiss

A Motion to Dismiss is a request for the court to throw out a charge or charges against a defendant. It is a pretrial motion, heard by a judge. There is no jury involved. 

When a defendant makes a Motion to Dismiss, they argue there is a problem with the legal basis of the charge, and so the case should not proceed to trial. When a judge decides a motion to dismiss, they are not determining the defendant's guilt or innocence. They look at the legal validity of the charge itself. 

A defendant may also file a motion to dismiss on the ground that the defendant was committed without reasonable or probable cause. A Penal Code Section 995 motion challenges one or more counts of an information or an indictment. When an information or indictment charges misdemeanor and felony offenses, a 995 motion may challenge either or both types of offenses.

Reasons to File a Motion to Dismiss in California

Insufficient evidence, as mentioned above and as discussed briefly below, is one of the main reasons a motion to dismiss is filed, but other reasons exist. Some other common reasons are discussed below. 

Insufficient Evidence

In a criminal trial, the prosecution must prove the charge against the defendant beyond any reasonable doubt. To do so, all elements of the crime must be satisfied, and this is accomplished primarily through evidence. Evidence can be in the form of eyewitnesses, expert witnesses, photographs, video, tangible evidence, and other forms.

If, in its totality, the evidence is not enough to prove the charge by satisfying all the elements of the offense, the defense can make a motion to dismiss due to insufficient evidence. 

Statute of Limitations

The statute of limitations is a timeframe in which the prosecution can file charges against a defendant after a crime has been committed. Different offenses have different statutes of limitations. Once the statute of limitations has expired, charges cannot be brought.

If the prosecution charges a defendant outside of the statute of limitations, the defense may file a motion to dismiss. 

Violation of the Right to a Speedy Trial

The Sixth Amendment of the U.S. Constitution grants all defendants the right to a speedy trial. Specifically, Amendment VI states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The U.S. Supreme Court has identified four factors that should be considered and balanced when a court evaluates a violation of the federal constitutional speedy trial right:

  • Length of the delay;
  • Reason for the delay;
  • Defendant's assertion of the right; and
  • Prejudice to the defendant.

The California Constitution grants all defendants the right to a speedy trial. Specifically, Article I, Section 15, of the California Constitution states:

The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel.

Defendants are entitled to have their trial heard within a reasonable time, but different rules apply as to when the right is attached to the defendant. If there have been unreasonable delays, and the defendant is not at fault, the defense may file a motion to dismiss. 

Double Jeopardy

The Fifth Amendment of the U.S. Constitution prohibits double jeopardy, which means you cannot be tried for the same offense twice. Specifically, Amendment V states:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The California Constitution also prohibits double jeopardy. Specifically, Article I, Section 15, of the California Constitution states:

Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.

A defendant who has been acquitted of a charge cannot be prosecuted a second time for the same conduct. If this happens, the defense can file a motion to dismiss based on double jeopardy. 

Errors in Filing the Complaint

The authorities must follow specific procedures when charging a defendant, including explaining the charge. If this process wasn't followed and it cannot be fixed, then the defense may file a motion to dismiss. 

Other Reasons

The above reasons are only some of the more common reasons a defendant may file a motion to dismiss. Other possible reasons include when:

  • The defendant argues self-defense
  • The prosecution and defense agree on the facts and only require the judge to determine whether the conduct was criminal
  • The court does not have jurisdiction to hear the charge

The legal basis of a motion to dismiss is unique to each case. It is worth discussing your specific circumstances with a criminal defense attorney in California. 

Motion to Dismiss with Prejudice or without Prejudice

A criminal case can be dismissed before, during, or after a trial. It is typically the result of the defendant filing a motion to dismiss, which is discussed above. In some cases, however, the prosecutor might file a motion to dismiss or the court may dismiss a case without a motion. In any of these scenarios, when a case is dismissed, it is done so either with or without prejudice.

With or without prejudice are terms a defendant should understand because many think that when a judge grants a motion to dismiss, the defendant will never face the same charge for the same incident again. When cases are dismissed with prejudice, that is true, but when cases are dismissed without prejudice, the prosecutor could later refile the charges.

In sum, a dismissal with prejudice means that a judge's order is the final judgment in the case, and the prosecutor cannot refile charges. In a dismissal without prejudice, the prosecutor can, in the future, either refile the charges or file new charges based on the same alleged criminal incident.

Dismissed Charges versus Dropped Charges in California: What's the Difference?

Do not confuse dismissed charges with dropped charges. A judge dismisses charges after they have been filed, and the judge does so for many of the reasons listed above. Charges, however, that are dropped are typically dropped by a prosecutor, who may do so for some of the reasons above or for other reasons, like victims who will not cooperate.

Contact a Criminal Defense Attorney in Orange County Today

A well-argued motion to dismiss can be an important defense strategy. It can lead to successful plea negotiations with the prosecution or even the charges being dismissed entirely.

For these reasons, it's worth engaging a defense attorney who is an expert in pretrial motions. They can look at your matter and advise if there are any potential legal bases for a motion to dismiss. Richard Wagner is a seasoned criminal defense lawyer in Orange County who will investigate your case and strategize accordingly, all while ensuring you understand the charges against you. Call (714) 721-4423 or fill out the online submission form today to schedule a FREE PRIVATE CONSULTATION.