When to Turn Down a Dismissal

While a Dismissal Sounds Like a Win, There are Times When a Dismissal Isn’t Good Enough

Today in court my client and I turned down a dismissal.  I know, that sounds dumb.  Why on earth would we turn down a dismissal?  Well the reason is, sometimes even a dismissal can be unfair.

The problem with some agreements for dismissals is that defendants are required to “earn” a dismissal.  In other words, sometimes defense lawyers can make an agreement with the prosecutors where defendant will do “X” in exchange for a dismissal.

If a DA decided to outright dismiss a case with nothing in return, of course no one would ever turn it down.  That is ultimately the goal in a criminal case, to get the charges dismissed.  But sometimes things are worth fighting for.

When It Makes Sense to Turn Down a Dismissal

I have run into the situation I am facing with my client many times before.  Without going into specifics in this particular case, since it is pending, I can use an old case I had as an example of when the same thing happened.

I had a case a few years ago where my client was charged with Assault of a Family Member.  It was a ridiculous charge in my opinion, because when I looked at all of the evidence the complainant was the one who was assaulting my client.  In that kind of case you want to fight for a dismissal, because frankly it is a bunch of crap.

We fought the case for months, and eventually the district attorney knew the case was weak.  But instead of just dismissing the case, they asked my client to take a BIPP class and do 32 hours of community service in exchange for the dismissal.

BIPP: Domestic Violence Class

Now sometimes this is a great deal, but not for an innocent defendant who is tight on funds.  To better understand, the BIPP class is a domestic violence class which lasts 18 weeks and defendants are required to pay about $25 for every class.  That is $450 for the class.  If you were totally innocent would you think it is fair that you have to waste 18-30 hours of your life on a class, and pay $450 of your hard earned money (on top of the attorney and bond that you had to pay!)?  Of course you would not think it is fair.  So we rejected that deal to the “shock” of the DA.  We set it for trial (more wasted time), and of course it was dismissed on trial day.  It wasted a ton of my time too preparing for a trial, but it was worth it for my client.

That’s kind of the same boat I am in now.  It’s a totally different case, set of facts, prosecutor, courts, etc, but it is an innocent client being asked to pay for a dismissal.  We didn’t do it then, and we won’t do it now.

So yes, we rejected a dismissal today, and the fight goes on.

Eric Benavides
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Eric Benavides

Criminal Defense Attorney at Benavides & Serrano
Eric Benavides is a Houston Criminal Defense Attorny and immigration lawyer.He is one of the co-founders of Benavides and Serrano.He is a member of the Harris County Criminal Defense Lawyers Association, Texas Criminal Defense Lawyers Association, Houston Young Lawyers Association, and is licensed to practice law in the state by the Supreme Court of Texas and federally by the Southern District of Texas.
Eric Benavides
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