Total Pageviews

Thursday, November 17, 2016

Getting an Arrest Warrant dismissed - how to quash

The errors in my warrant of arrest are that they put the wrong address and phone number for me, so I was never contacted or interrogated in regards to the charge. I was actually filing charges against my ex, when someone at the police station told me about the charge 8 months after the alleged incident. SMH. I'm filing a motion to dismiss. What should I cite to really make a strong argument for a motion to dismiss? There's so many flaws on the prosecution's side. Plus the police officer put the wrong date for the alleged incident on the police report. There is a different date for the alleged incident on the police report and the warrant of arrest.

Generally, you won't be successful on quashing an arrest warrant, no matter how defective. However, once your arrest is processed, you can then challenge the charges, etc. at your initial detention hearing. In VA, you will be seen by the magistrate when you are initially "booked." A bond will be set (unless your crime is particularly notorious), and once paid, you will be released with a return court date. That return date is called an arraignment, and it is at that point you can challenge the arrest.

The discrepancy between the police report, and the arrest warrant is fertile ground for examining the detective or police officer during a preliminary hearing. However, if this is a domestic violence charge (assault on a family member, for example), then you won't have a preliminary hearing, as most DV charges are misdemeanors. Although in VA, you can get a jury trial in just about every criminal instance, a preliminary hearing is limited to felony charges only.

A motion for judgment of acquittal (that's the federal term), or motion to strike charges, usually does not succeed when there is any evidence of an underlying crime -- and it sounds like there was a police report that did list the accurate times, dates, people. In those instances, the court will want to hear from the aggrieved party for the specific reason of not wanting to dismiss a valid case based on a clerical error, or police typo. The question is: was their an underlying offense? Put a different way, if the Court was to dismiss the information (that's the piece of paper that lists the misdemeanor charges) because it had the wrong dates, etc., the prosecutor could just refile, based on the police reports, with the correct dates. It would waste the Court's time, your time, and the police officer's time.

Is there an instance when an arrest warrant can be quashed, or set aside? Absolutely. When the arrest warrant has the wrong person named, or the wrong crime charged. Those are the two most common causes for setting aside a charge. The fact there is an incorrect date, or that you were not interviewed would not, per se, invalidate a warrant. They are certainly not required to speak with you or seek your permission before obtaining a warrant. And a date can be a typo.

When the arrest warrant fails to cite a specific element of the crime (i.e. show probable cause that the crime was committed through an arrest affidavit), that can be used at the preliminary hearing to show failure to demonstrate an element of the crime, which in turn negates the charge. However, that is usually easily overcome by the officer on the stand.

To properly move forward, you need an attorney. You simply lack the training to recognize the best tactic, as this is your first time through the system. No one get's this right the first time! It sounds like you need to turn yourself in, get processed and release on bail or your own recognizance, and then kick this charge when you're in front of the judge. Give us a ring! We can help with this.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
admin@hanoverlawpc.com

No comments:

Post a Comment

Share your thoughts with us!