Drinking & Driving Lawyer
What does the law ORC 2937.04 mean?
Ohio Revised Code section 2937.04 states that you may raise “by motion to dismiss the affidavit or complaint” any defenses you may have or reasons for dismissal that you can adequately demonstrate to the court. You can make this motion orally before the judge to be ruled on at that time, or you can formally file the motion with the court in writing before having a hearing on the motion at a later time. You can also present evidence through testimony or affidavit if your motion to dismiss attacks some defect in the record.
How Could I Use a Motion to Dismiss in a DUI/OVI Case, and What Are The Steps in Using the Motion to Dismiss?
You can use a motion to dismiss to have the court dismiss DUI/OVI charges against you so the charges are removed from your record and you do not suffer any of the negative consequences from committing such an offense. Your attorney can make the motion to dismiss verbally in front of the judge and receive an immediate ruling, or a motion to dismiss can be filed with the court, including the reasons for dismissal, and you will wait for the court to hold a brief hearing on your motion before the judge decides whether or not to grant your motion to dismiss and thus dismiss the DUI/OVI charges against you. Thus, the steps in using a motion to dismiss are deciding upon which grounds you will file the motion to dismiss (such as by claiming that the prosecution violated your right to a speedy trial or that the prosecution cannot prove you were driving under the influence if the court suppresses the improperly performed blood test. Once you have decided upon the proper grounds for dismissal, your attorney will draft a motion to dismiss and file it with the court. The court will read your motion, hold a hearing on the matter, and decide whether to grant your motion and dismiss the case or to deny your motion and allow the prosecution to try you for the DUI/OVI offense.
In What Situations Would I Use a Motion to Dismiss?
There are several defenses to your DUI/OVI charge that a qualified Ohio DUI attorney could use to convince a judge to dismiss the DUI charges against you.
First, perhaps the easiest situation in which your attorney would use a motion to dismiss to dismiss the DUI charges against you, is if you are able to provide exculpatory evidence to the court, such as video evidence, that you were not driving under the influence at the time of your arrest. For instance, a police dash cam video may directly contradict the arresting officer’s testimony and show that you passed the field sobriety tests administered by the police officer and that there were no visible signs of intoxication. Another example of exculpatory video evidence is if the officer claimed you were pulled over because you did not have any headlights, but the video clearly shows that your headlights were on when you were pulled over, meaning the officer did not have reasonable cause to stop you. Thus, your attorney would likely be able to have your charges dismissed by filing a motion to dismiss.
Another such common defense that your attorney can utilize in a Motion to Dismiss, is if the breathalyzer or drug test performed on you can be successfully challenged and discredited to prevent its use as evidence against you by the prosecution to prove that you were driving under the influence of alcohol or drugs at the time of your arrest. With chemical tests, they are only valid if (1) your sample was taken within three hours of the time that you allegedly committed the DUI violation, (2) you submitted to the breath, blood, urine, or other bodily substance test at the officer’s request pursuant to Ohio’s implied consent provisions found in O.R.C. section 4511.191, or a search warrant is used to obtain your blood or urine sample, (3) your sample was properly analyzed, and (4) your sample was analyzed by someone with a valid permit pursuant to O.R.C. 3701.143. If you hire an experienced DUI defense attorney, they can challenge these tests by arguing that it was obtained illegally by police because it was not performed in such a way that complied with Ohio’s approved methods for such testing, or your attorney can argue against the admissibility, relevance, authenticity, credibility, or competency of the tests. If your attorney is successful in having the tests suppressed and not allowed into evidence, it becomes very likely that your case could be dismissed entirely by the judge because the prosecution loses its strongest evidence against you.
A third method for an attorney to have your charges dismissed is by arguing the officer did not actually have any probable cause to arrest you, because the officer did not have “sufficient information,” “at the moment of the arrest,” that had been “derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe” that you were driving under the influence of alcohol or drugs. This standard of sufficient information is judged by an objective standard rather than a subjective standard.
Next, your attorney can challenge the officer’s interrogation of you after you were arrested if your arresting officer did not read you your Miranda rights before questioning you, and your attorney should be able to suppress anything you said to the police during your interrogation if you were not Mirandized when you were arrested before you were questioned by the police.
Other common situations for using a motion to dismiss in your DUI case to have your charges dismissed include if your DUI citation failed to actually state an offense, meaning that the motion to dismiss is attacking the adequacy of the charging instrument itself regardless of whether the prosecution can actually prove you were guilty of driving under the influence of alcohol or drugs. A motion to dismiss may also be used by your attorney if the prosecution has violated your constitutional right to a speedy trial, by failing to hold your trial within Ohio’s deadline of 90 days for a misdemeanor DUI charge or 270 days for a felony DUI charge, or if your attorney feels that the court does not actually have territorial jurisdiction over your case. Lastly, a motion to dismiss may be used if your attorney has successfully negotiated an acceptable plea agreement with the prosecution in exchange for your pleading to a lesser offense such as reckless driving instead of the DUI charge, so the DUI charge can be dismissed and kept off your criminal record.
It is absolutely critical that you hire an experienced Ohio DUI defense attorney to defend you in your DUI/OVI case if you hope to be successful in having the charges against you dismissed, with no jail time, fines, or driver’s license suspension for you and no stain on your criminal record. A qualified attorney can work to create a strong motion to dismiss to convince the judge to dismiss the DUI charges against you, if at all possible in the case, as a complete dismissal is an ideal outcome for every case.
