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

Technique to beat a felony in a mixed felony/misdemeanor case

An interesting case was recently decided in Virginia that has potential implications across all jurisdictions. It is more a strategy than anything else, and certainly the concept is not new. But it worth recalling from time-to-time, that the basics are still alive and well -- even to beat a murder charge.

It is fundamental criminal law that each and every element must be proven by the state "beyond a reasonable doubt." (See Patterson v. New York, 432 U.S. 97 (1977), although this case also stood for the proposition that the state is not required to disprove defenses in order to convict. That's the topic of a different discussion, however). One strategy to defend a case is bifurcation -- split the elements across multiple crimes, then get one of the crimes dismissed. If successful, you have knocked out an element of the underlying felonies, and the entire government case falls apart.

That's what happened in this recent VA case. The case, Commonwealth v. Davis, was decided 29 October 2015. Davis was accused of first-degree murder, maliciously shooting into an occupied vehicle, use of a firearm in the commission of a felony. Oddly, he was also charged with reckless handling of a firearm, a misdemeanor. This is odd, because it opens the State for a drubbing. Remember - if the defense can beat a misdemeanor that contains a required element of the underlying felonies -- it's over, folks. In a brilliant bit of legal maneuvering, the defense smashed the State's case for the misd (slang for "misdemeanor", and pronounced "miss-dee"), prior to the hearings regarding the felonies. This was done by accelerating the hearing for the misd gun charge. The misd was dismissed by the Court, and because possession of a firearm was an element of the felonies, they all collapsed at the preliminary hearing.

Unfortunately for our good friend, Davis, VA has a provision that allows for a direct indictment even after a prelim fails. Some of us think this is a double bite at the proverbial criminal apple, but alas, it 'tis what it is. So, they direct indicted him on the felonies. Of course, that couldn't work either. If the judge cleared him of the underlying misd gun charge (dismiss), to attempt to charge him with a gun crime stemming from the same set of facts constituted double jeopardy and was not permitted.

In summary:

The Court of Appeals reversed Defendant’s convictions and dismissed the indictments, holding that the Commonwealth was collaterally estopped from prosecuting Defendant for murder or attempted murder after Defendant’s acquittal of reckless handling of a firearm. The Supreme Court affirmed, holding that because Defendant’s misdemeanor acquittal and subsequent felony convictions were based on the same issue of ultimate fact, the felony convictions were barred by the prohibition of double jeopardy.

The Takeaway: When the government tries to charge both misdemeanor and felony charges, target the misdemeanor and stall on the felonies. Get the misdemeanor dismissed or beat it at trial - you need a substantive disposition in your favor. Nolle prosequi won't do it, as it is not a determinative disposition on the underlying charges. Once you have victory on the misd, kick the felony. It can be challenging to force the misd before the felony, but you need to work angles to get it done. You don't need a prelim to challenge the misd -- so move quickly to bring that to court. Note that federal court rarely lists all charges pre-indictment, so knocking some aspect of the case out by resolving a misd prior to indictment may be of dubious value; but it can have devastating consequences at the preliminary hearing.

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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.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com