DISMISSAL ISSUES:

An actual process. Unlike most other defense firms, we actually have a system in place.

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Dismissal issues are factors, which if present in a DUI case, allow for a motion to dismiss the case, over the objection of the prosecutor.  They are issues of a constitutional or state statutory nature, which is why prior convictions, alcohol level, accidents and other aggravating circumstances do not affect the ability to dismiss a case.  Aggravating circumstances only affect potential penalties and only if no dismissal issues are present.

 

Dismissal issues are enjoyed through the pretrial motion per either section 1538.5 PC, or 402 EC  and are as follows:

 

• Unlawful Detention–  where the police report indicates a lack of relevant or significant observations to support the necessary probable cause or reasonable suspicion for the initial stop or detention. Also, whether the officer uses the vehicle code to indicate the reason for the stop versus writing in long form his observations. Solovij v. Gourley.

 

• Unlawful Arrest– Motion to dismiss 1538.5 CPC; where the police report indicates a lack of relevant & significant observations, to support the arrest of the client (usually based upon driving pattern, field sobriety test results and objective symptoms of intoxication).

 

• Title 17 CCR and Calibration Logs– 402 E.C. Title 17 CCR says that the testing device used must be calibrated at least every 10 days or 150 people tested. The calibration officer gets sick, goes on vacation, forgets or simply can not get to your machine in time.. you may benefit. The crime lab has the calibration records, filed by the serial number of the machine that tested you.

 

• Chain of Custody– Every physical piece of evidence in a criminal case must maintain an unbroken chain of custody.  In cases that involve blood samples, a failure to maintain a proper and continuous chain of possession would result in removal (suppression) of the blood results and dismissal of the case from lack of sufficient evidence to prove guilt.  Most attorneys do this when in trial.  We investigate the custody chain while still in pretrial, thereby protecting you from being in a trial setting unnecessarily.

 

• Witness Availability–  Our experience is that this dismissal issue is not known to other attorneys.  We developed this little gem from our own experience as police officers.  As a result, we do not openly advertise it.  It is a proprietary dismissal issue.  We reserve discussing it for consultations.