Understanding a 'Motion to Dismiss'

Posted By David L. Carlson, Attorney At Law || 5-Aug-2015

A criminal lawyer may file a motion to dismiss at the early stages of a case, before both sides have conducted discovery. In that case, the material presented in the complaint is the focus of the motion, which the defense argues is legally invalid.

When deciding on a motion to dismiss, the court must consider all of the facts contained within the complaint. Generally, a motion to dismiss is based on one or more of the following claims:

  • The court lacks jurisdiction to hear the case.
  • The defendant wasn’t served properly.
  • The venue is legally improper.
  • The prosecution failed to state a claim.

If Successful, May Result in Dismissed Charges

If a criminal lawyer is successful, a pretrial motion can result in reduced or even dismissed charges, so they can be very beneficial to a criminal defendant.

A motion to dismiss is a common pretrial motion used in criminal cases. It isn’t arguing about the facts of the case, rather it claims that the court should dismiss the case because:

  1. the statute of limitations has expired, or
  2. it is not legally sound, even if all of the alleged facts are true.

A defense attorney must file the motion to dismiss in writing, stating that there are no material or disputed facts and that the facts either don’t establish guilt or a complete defense.

The defense can use affidavits and depositions under oath and police reports to support their motion to dismiss, however it must be sworn by either the defendant or another party with personal knowledge.

If the prosecution can prove that there is a factual dispute, the motion to dismiss is denied and the trial takes place, with the jury deciding. On the other hand, if the court grants the motion to dismiss, the case is dismissed without any evidence being presented by the prosecution.

To learn more about motions to dismiss, contact Carlson & Collier to discuss your case with a Richmond criminal defense attorney. We are available 27/7 to take your call and offer flexible appointments.

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