995 (a) [An] indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases:
(1) If it is an indictment:
(A) Where it is not found, endorsed, and presented as prescribed in this code.
(B) That the defendant has been indicted without reasonable or probable cause.
(2) If it is an information:
(A) That before the filing thereof the defendant had not been legally committed by a magistrate.
(B) That the defendant had been committed without reasonable or probable cause.
The Law Explained
Penal Code 995 gives you the right to ask a judge to dismiss charges. It allows this in two kinds of cases: indictments by a grand jury and criminal offenses (“informations”) charged with in a preliminary hearing. DUI cases are almost always the second type of case, and it is the part of the law that talks about “informations” that applies to most DUIs.
On a first reading, PC 995 can be confusing. It helps to explain some legal terms. Your preliminary hearing (the arraignment) is a hearing with a judge that usually happens several weeks after your arrest. The purpose of this hearing is to formally charge you with DUI or other offenses. Both sides get to briefly state their case; the judge then decides whether the charges are reasonable (whether to “hold you to answer”). If so, then you are formally charged with the offense (known as being “committed”). Being committed means that your case will move forward and you will eventually go to trial. If the judge does not think the charges are reasonable, however, the judge instead dismisses them or “sets them aside.”
Penal Code 995 is designed to help you if the judge makes the wrong ruling. In other words, if the charges should have been dismissed (“set aside”), but the judge committed you anyway, you can file a motion under PC 995 to try to change the ruling.
This motion is known as either a motion to dismiss or a motion to set aside. If it works, it can get the entire case dropped. But it only works under certain circumstances.
What are the circumstances where I can file a motion to dismiss?
You can make a motion to dismiss in two circumstances:
- You were committed illegally
- You were committed without probable cause
Being committed illegally means that you were denied some important right during the preliminary hearing—such as the right to be represented by an attorney, or the right to have your hearing conducted in a single session.
Being committed without probable cause means that there is simply no good reason to think you committed the crime at all, or no good reason to think the crime even happened. For example, let’s say you walked out of a bar, very intoxicated, and a police officer saw you getting into your car. The officer arrested you for DUI, even though you had not yet driven anywhere. It’s impossible to be driving under the influence if you weren’t even driving, so there are no rational grounds for the DUI charge. This is the kind of circumstance that would allow you to file a motion to dismiss.
Both kinds of motions to dismiss can be used in a DUI case. They can also be used to dismiss sentence enhancements, such as refusing the breath test.
What happens when I file a motion to dismiss?
The motion will lead to a brief hearing where both sides present their case and the judge makes a ruling. If the judge rejects the motion, your lawyer has a short period of time to appeal. Otherwise, the case proceeds as normal.
If the judge agrees with your motion, however, they may dismiss some or all of the criminal charges against you—including your DUI charge. At this point the prosecutor could simply drop the case. Or they could push forward with any remaining charges (for example, if your DUI charge was dismissed but you still face a charge for driving on a suspended license). In some cases, the prosecutor could even file the charges a second time, but if they get dismissed again, the charges are dropped for good.
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