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Tag Archives: dismissal

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.

Understanding Alcohol Intoxication

Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas.  I had a very interesting situation that came up recently.  I had a client who had been arrested for DWI.  He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick.  The friend had a little too much to drink and needed to throw up.  My client who was driving, pulled over on the highway to let his friend handle his business.  Within a couple of minutes an officer pulled in behind them to see if they needed any help.  When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.

They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated.  He was arrested for DWI and taken to the station.  At the station they asked him to submit to a breath test to which my client agreed.  He took the test and blew a .04, well below the legal limit in Texas.

Now if you have any common sense, this just doesn’t seem right.  At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting.  Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”.  Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.

Per the Texas Penal CodeIntoxicated means:

(A)  not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body;  or

(B)  having an alcohol concentration of 0.08 or more.

Intoxication and the Alcohol Legal Limit

So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more.  My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.

Lucky the prosecutor understood the law and dismissed this case after the first hearing.  It’s sad that my client had to waste time and money, but justice prevailed.