Dismissing Criminal Charges - Overview
Dismissing criminal charges is possible. It happens every day. Although it is possible, it is not easy. In essence, your criminal lawyer needs to succeed in one of two ways. First, your lawyer needs to persuade the prosecutor that he/she cannot prove their case beyond a reasonable doubt. In other words, a prosecutor needs to agree that dismissing criminal charges is in the best interest of justice.
The second way in which your criminal lawyer can succeed in dismissing criminal charges against you involves an application of the law. For example, if you’re facing drug charges & the police obtained the drug evidence in an illegal manner (like an illegal search), then we would be using the law to dismiss your criminal charges. The law says that the police cannot violate your 4th Amendment rights. If they do, then the law says that the evidence in your case cannot be used against you. It gets suppressed.
So, we will discuss 7 ways for dismissing criminal charges with helpful examples.
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What Are Your Options?
If we’re having a conversation about dismissing criminal charges, it is because you’re either facing misdemeanor or felony charges, or both. You’re facing criminal charges for the first time & you’re scared. We understand. Since the moment of your arrest, you’ve been declaring your innocence but cannot understand why dismissing criminal charges takes so long.
Each year millions of Americans share your frustration. Criminal cases seem to take forever & there has to be a way to end the nightmare. Before we get into the 7 approaches for dismissing criminal charges, let’s step back and look at your options.
Go To Trial
Option one involves taking your case to trial. A judge or jury will listen to evidence & either acquit you or find you guilty.
Accept a Plea Deal
Option two involves accepting a plea deal. Your criminal lawyer negotiated a deal with the prosecutor. This could involve pleading guilty to a downgraded charge or pleading guilty to some charges & in exchange, the prosecutor dismisses the remaining charges against you.
Take Advantage of a Diversionary Program
Option three involves getting admitted into a probationary program & upon successful completion, your charges get dismissed. Also, you will avoid getting a criminal conviction on your record.
Dismissing Criminal Charges
Option four involves dismissing criminal charges based on a legal violation or the prosecutor having weak evidence against you. Remember, even if the evidence against you is weak, the prosecutor has every right to go forward with prosecuting your case. As criminal lawyers, we exhaust all efforts to persuade the prosecutor that they can’t win at trial with the evidence they have. But in the end, each prosecutor has the final word on what he/she decides to do.
dismissing Criminal charges versus Dropping Criminal Charges
Before we get to the good stuff, let’s answer this question: “What’s the difference between dismissing criminal charges & dropping criminal charges?” When a prosecutor decides to drop the charges against you, it typically involves the prosecutor’s independent review of law enforcement’s investigation & subsequent criminal complaint. A prosecutor will decide that law enforcement’s investigation is incomplete & will decide to drop the charge & perhaps file new charges at a later date.
On the other hand, dismissing criminal charges involves your criminal lawyer’s efforts to investigate your case & provide exculpatory evidence to the prosecutor. Exculpatory means that your lawyer can prove that you didn’t do what you are accused of.
For example, let’s say that you are facing aggravated assault charges. They accuse you of punching & breaking the victim’s jaw. Your lawyer gets a surveillance video from the bar which clearly shows that you were a bystander and not the aggressor. He gives this video to the prosecutor & the prosecutor agrees that in your case, dismissing criminal charges is the right thing to do.
1. no probable cause to arrest
In New Jersey & across the country, police need something called “probable cause” to arrest you. This is a basic fundamental right that is in our Constitution. In other words, law enforcement cannot arrest you & charge you with a crime just because they feel like it. The police have to have a reasonable belief that you committed a crime. The police officer’s reasonable belief must include objective, factual evidence, and circumstances.
For instance, a police officer cannot arrest you because he has a “hunch” or a “feeling” that you kind of look like a drug dealer. In this example, the police officer had no probable cause to arrest you. He cannot provide reasonable & objective evidence for arresting you. This is a situation where we would pursue dismissing criminal charges against you.
Conversely, if a police officer pulls you over for speeding & smells the strong odor of marijuana emanating from your vehicle when he approaches, then he has satisfied the probable cause requirement to arrest you.
2. Challenging the complaint
Criminal complaints need to contain certain information. Not every detail of your case needs to be listed in the complaint but certain information must be included. When important information is missing or incorrect this means that the complaint is defective.
Basic information includes:
- Date of offense
- Criminal Statute (specific crime you’re accused of committing)
- Pedigree information – your name, date of birth, address
- A brief description of what you did
It doesn’t happen often, but a police officer may commit errors when filling out the complaint against you. For example, he might get your name & date of birth completely wrong. If this happens, we would pursue dismissing criminal charges. We file a motion before the court & ask the judge to dismiss the complaint.
Please be aware that if we succeed in getting your case dismissed, the prosecutor’s office can always correct the errors & refile the criminal charges against you. It may not seem like a victory because the prosecutor can refile, but we may be able to work out a good plea deal for you.
3. Illegal searches
The Fourth Amendment of the U.S. Constitution protects citizens from illegal stops, searches, and seizures. This is the law of the land. Law enforcement can only stop you under certain circumstances.
As previously discussed, police need “probable cause” or a “reasonable belief” that you may have committed a crime.
The police can only search your person, your car, or your home if they have a search warrant. However, this is not always the case. there are situations where the police do not need a search. There is a long list of exceptions to the warrant requirement.
But let’s get back to dismissing criminal charges bases on an illegal search. Let’s say that the police arrest you for a DWI and at the time of your arrest, you are 20 miles away from your home. The police handcuff you and place you in the police car. They cannot use the DWI arrest as an excuse to now search your home. If they did search your home without a warrant and found CDS drugs, then we would pursue dismissing criminal charges against you because of an illegal search.
This is a very simple example but a very common one.
4. because the grand jury said so
After your arrest, the prosecution must present the case to a grand jury. The role of the grand jury is to further protect your Constitutional rights. Grand jurors listen to the evidence that the police have against you & determine whether or not the police had probable cause to arrest you.
Grand jurors are made up of the people in your community. They listen to witness testimony and review the evidence underlying your arrest. They are not deciding guilt or innocence. Rather, they are deciding whether probable cause was established to believe that a crime may have been committed. If they believe so, then they approve the indictment against you. If they don’t believe that there’s probable cause for your arrest, they do not approve the indictment.
Let’s assume that the grand jury approved the indictment against you. Dismissing criminal charges at this point involves your criminal lawyer’s review of how the prosecutor presented the evidence to the grand jury. Prosecutors & police witnesses are capable of making mistakes. If a mistake was made during the grand jury proceeding, we file a motion to dismiss the indictment based on this error. If the judge agrees with us, the indictment will get dismissed.
However, here’s another situation where the prosecutor can refile the indictment & correct the error previously committed. As in the previous example, as criminal lawyers, we would use the time before the prosecutor refiles the indictment to work out a plea deal.
5. insufficient evidence
Remember, your arrest is the starting point of your criminal case. Felony cases take months and sometimes years. A lot happens while your case is pending. As your criminal lawyers, we use this time to conduct our own investigation. We’ve learned that witnesses change their stories, witnesses cannot be located, the evidence is lost or destroyed, new witnesses appear, new DNA is discovered at the crime scene, and much more happens while your case is pending.
Some of the things we do when we investigate involve:
- locating & interviewing witnesses;
- obtaining video/photo evidence;
- working with forensic experts to challenge drug & DNA evidence;
- reviewing documents, police reports, hospital records, cellphone records, internet records, email records
Once we collect and gather all of this evidence, we prepare & deliver to the prosecutor something called a “reciprocal discovery packet”. This package contains the results of your criminal lawyer’s investigation. The evidence in this package shows the prosecutor that the evidence against you is weak. For example, it may contain emails from multiple witnesses where they admit in the emails that they lied to the police. The emails destroy the credibility of the prosecutor’s key witness & dismissing criminal charges in your case is the only option at this point.
We had a case where our client was accused of aggravated sexual assault. Through our extensive investigation, we learned that his accuser was less than truthful about many details provided to the police. Our reciprocal discovery packet contained all of this evidence & we were able to get our client’s charges dismissed.
A great example of exculpatory evidence is DNA evidence. Innocent men have been sitting on death row until DNA technology proved that another man had committed the heinous crime. All of these DNA cases involved dismissing criminal charges.
6. procedural issues
Police and prosecutors must follow strict legal criminal procedures.
Throughout your arrest, booking, and interrogation, they must follow the law. If the police violate your Constitutional rights, then these violations result in getting your criminal charges dismissed.
A common example is a Miranda violation. If you gave an incriminating statement without receiving a proper Miranda warning, then your statement may get suppressed.
If the only piece of evidence against you is your own statement, then once this evidence gets suppressed, the prosecutor has no way to avoid dismissing criminal charges against you.
7. Lack of Resources
Let’s face it, prosecutors are busy people.
They have tons of cases. As a result, they are often forced to focus on their most serious cases.
Your criminal charges may get dismissed or dropped just because the prosecutor has bigger fish to fry.
The truth is that getting serious criminal charges dismissed is not common.
You are more likely to get a dismissal if you’re accused of a minor crime and you have no previous criminal record.
If They Can't Get Dismissed, Try Getting Your Charges Downgraded
You may wonder about the possibility of downgrading a charge. If the evidence against you is weak, then your lawyer can fight for a reduced charge. It’s a win-win situation for everyone involved. The case is resolved and your nightmare is over. A felony charge can be downgraded to a misdemeanor charge. If this happens, jail is no longer an option. You may pay a fine and get a blemish on your record. But you will be relieved that the case is over.
Of course, our priority is to get your criminal charges dismissed but a reduced charge can also be a good result. In exchange for a guilty plea to a reduced charge, a prosecutor may offer a “plea bargain agreement.” This occurs when a prosecutor agrees to dismiss the original criminal charge. You will have to agree to plead guilty to a less serious charge instead.
We outlined 7 ways that you can fight to get your criminal charges dismissed. Each case is different and the method we use for dismissing criminal charges will vary according to the facts of your case.