There are a number of ways to “win” a DUI case, and not all of them involve going to trial. Sometimes, you might have legal grounds to argue that you shouldn’t be facing a DUI charge at all. Under these circumstances, California law allows you to file a “motion to set aside” or “motion to dismiss” with the court. This motion is a formal request for the judge to consider throwing out the case.
Making a motion to dismiss is a very common strategy in California DUI cases. It can be very successful, but it will only work under certain circumstances.
Under what circumstances can I move to dismiss my DUI?
The two main circumstances are:
- The way you were charged with DUI at your preliminary hearing was illegal
- There was no probable cause to charge you with DUI in the first place
Both of these circumstances involve complicated legal points, but either one (or both together) can save you from a DUI. We’ll look at each one in detail.
You Were Charged Illegally
Sometime after your arrest—perhaps the next day or perhaps weeks later—you were given a preliminary hearing where you were formally charged with DUI (and any other criminal charges). These hearings have to be run a certain way, and they have to provide you with substantial rights. If any of these rights was violated, the charge is illegal.
The most common rights violations related to the preliminary hearing are:
- You were denied the right to be represented at the hearing by an attorney,
- No one ever advised you that you had the right to be represented by an attorney,
- You were denied the right to have your hearing conducted in “one session,” or
- You were not given your right to present witnesses, confront witnesses, or cross-examine witnesses.
No Probable Cause
Probable cause means that there are rational grounds to believe that a DUI was committed, and also rational grounds to believe you are the one that committed it. On its face, this can sound like the question of whether you are guilty or innocent—but it’s much simpler than that. Arguing that there is no probable cause is more like arguing that the entire charge is preposterous.
Here are two examples of how a probable cause challenge could work:
- No DUI. Police observed you stumble out of a bar and get into your car. You started the engine, but then fell asleep in the driver’s seat without moving the car. Police tapped on the window, woke you up, and charged you with DUI. If you had driven, there would be rational grounds for a DUI charge and it would be worth fighting it out in court. But since you never actually drove at all, you certainly didn’t drive under the influence. You could move to dismiss the DUI charge, and your motion should succeed.
- No sentence enhancement. After you were arrested for DUI, police told you they would need a blood sample to test you for drugs. You refused. Police then charged you with refusing the blood draw (a “sentence enhancement” that makes the penalties for DUI worse). However, police never advised you that refusing the test is illegal, which they are required to do. You could file a motion to dismiss the refusal charge, and it should be granted. You’ll still have to face the DUI charge itself, but the refusal charge is off the table.
Will a dismissal get rid of all my charges, or just some of them?
It depends. Many DUI defendants face other charges as well, such as possession of drugs, driving on a suspended license, or an open container violation. You can attempt to move to dismiss all of the charges, but only if there are circumstances that affect all of them. If the problem is that you were denied your right to a lawyer, for example, then all of the charges are illegal and should be dismissed. But if the problem is that the “open container” was actually in the trunk, not the car, then you could get that specific charge dismissed, but not the others.
If my charges are dismissed, do I win my DUI case?
In many cases, yes. But it depends on the situation:
- If the only charge against you is DUI, and the charge is dismissed because of no probable cause, then your case is essentially over. There is no realistic way for the prosecutor to move forward. You will have the arrest on your record, but no conviction, and you face no penalties.
- If you face several charges, and only one of them is dismissed, the prosecutor will likely still proceed with the other charges. This is still good for you, but it’s not a total win.
- In some cases, the prosecutor could file the same charges again. For example, if you weren’t advised of your right to a lawyer last time, they may charge you with DUI all over again and make sure you are advised of your rights this time. However, if you get the same charge dismissed twice, it’s done—there is no way to file that charge again.
How much does a motion to dismiss help me?
It’s one of the most powerful strategies you can use.
It’s true that a motion to dismiss doesn’t always work. And sometimes it will only get rid of some of the charges, not all of them. But it can also work spectacularly—letting you walk free with no DUI hanging over your head, period. Most importantly, there is no downside to asking the judge to dismiss a charge. Even if it fails, it doesn’t harm your case at all. A good lawyer will always try this tactic if there are any legal grounds to do so.
Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today.
