STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
_________ COUNTY FILE NO.
STATE OF NORTH CAROLINA
vs. MOTION TO DISMISS AND QUASH
THE WARRANT
___________________,
Defendant
____________________________________________________________________________
NOW COMES the Defendant, by and through Marcus E. Hill and moves the Court,
pursuant to N.C. Gen. Stat.§15A-954 et. seq., to dismiss the charges against him. In support of
this motion, the Defendant shows unto the Court the following:
1. On November 16, 2008, the defendant was charged with Driving While Impaired in
State vs. , Case no. . On January 28, 2009, the first court date, the case was
continued until February 25, 2009, because the Judge requested a recusal as the defendant is a
local attorney, known to local bar and judges.
2. On February 25, 2009, the case was continued until March 25, 2009, because the
calendared, visiting Judge was not available.
3. On March 25, 2009, the calendared, traveling Judge was not available again but the
defendant's attorney called the case for trial before lunch. The police officer was present in
court and heard the Judge order everyone back to court at 2:00 p.m. At 2:00 p.m. on March
25, 2009, the officer did not appear. By 2:45 p.m. the court had finished all other business. The
state moved for a continuance in this case because the officer still was not present. The court
denied the state's motion and thereupon the State voluntarily dismissed its case.
4. That same night, March 25, 2009, the district attorney issued a warrant for the
defendant's arrest. The defendant was arrested by police officers after 11:00 p.m. at his
residence and was placed in handcuffs on the street outside of his residence in front of his
neighbors.
5. Defendant requests the Court to dismiss the case for the following reasons: (i) N.C.G.S.
Statute 15A-303 states, "Except for cause noted in the criminal summons by the issuing
official, an appearance date may not be set more than one month following the issuance or
reissuance of the criminal summons." In this case, the original summons was issued on
November 16, 2008. After the case was dismissed, a warrant was then issued on March 25,
2009. The court date on the warrant is May 20, 2009. The court date, May 20, 2009 is more
than one month and is almost two months following the issuance of the warrant on March 25,
2009. Additionally, no cause for the new court date to be set more than one month from its
issuance is noted on the warrant.
The warrant itself is improper. Pursuant to N.C.G.S. Statute 15A-304, a judicial official
may issue a warrant for arrest after considering circumstances, such as that a person summoned
will fail to appear, that a danger exists that a person accused will escape, that a danger exists
that there may be injury to person or property or that the offense is serious. Defendant avers
that the seriousness of the offense that could have been considered to issue the warrant is that
the officer chose not to return to court for the trial.
If warrant is regular and valid on its face, objection thereto, should there be grounds
therefore, must be by motion to quash. Steve v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959).
Although the warrant is regular and valid on its face, a reading of the applicable statute renders
the warrant defective and it should therefore be quashed.
(ii) The open courts clause of the N.C. Const. Art. I Sect. 18, guarantees a criminal defendant a
speedy trial, an impartial tribunal, and access to the court to apply for redress of injury, Simeon
v. Hardin 339 NC 358, 1994, 451 S.E.2d 858 (1994).
6. This clause prohibits purposeful or oppressive delays and those which the prosecution
could have avoided with reasonable efforts;
7. The Sixth Amendment of the United States Constitution standards governing speedy
trial are made obligatory on the states by the Fourteenth Amendment Due Process Clause,
Dickey v. Florida 398 US 30, 1970;
8. Durham County local rules provide that the State has 120 days to call a case for trial and
to dispose of a case;
9. This rule applies equally to Driving While Impaired charges as well as all other criminal
offenses;
10. The Defendant was denied his rights to a speedy trial as his case as of the date of the
hearing of this motion is 223 days old, well over the 120 mark;
11. Under North Carolina law when a continuance is denied the State may take a nolle
prosequi where the State declares that it will not at that time, prosecute the suit further;
Klopfer v. North Carolina, 386 U.S. 213 (1967). However, the case may only be restored to
the trial docket when ordered by the judge upon the solicitor's application, Id.;
12. Said another way in John A. Lassiter v. R.L. Turner 423 F.2d 897, 1970 U.S. App.
"under North Carolina law, a nolle prosequi, not with leave, does not terminate the prosecution.
It may be reopened with the court's permission. The possibility that permission may be granted
at some future date generates the same invidious consequences that led to the Klopfer
decision;" John A. Lassiter v. R. L. Turner 423 F.2d 897, 1970;
13. Allowing the State to re-open the case against the Defendant denies him of his right to a
speedy trial in violation of the Sixth Amendment of the United States Constitution and denies
him of the right to a fundamental fairness as guaranteed by the Due Process Clause of the
Constitution of the United States Constitution as well as the North Carolina Constitution;
14. The Court has the ultimate authority over managing the trial calendar, NCGS 7A-
49.4(h)m see also Simeon v. Hardin 339 NC 358, 1994;
15. By allowing the State to re-open the case against the Defendant the Court's authority to
deny continuances is taken away and their calendaring authority is undermined; NCGS 7A-49.4
(h), see also Simeon v. Hardin 339 NC 358, 1994;
By statute [and local rule], the prosecutor has the authority to calendar criminal cases.
N.C. Gen. Stat. 7A-49.3(a) [case management rule]. However, this authority is limited in two
ways. First, the prosecutor's authority is subject always to the principles of Due Process found
in both state and federal constitutions. U.S. Const. Amend XIV; N.C. Const. Art. I, 24. It is a
violation of Due Process for a prosecutor to exercise the calendaring authority to gain a tactical
advantage over a criminal defendant. Simeon v. Hardin, 339 N.C. 358, 451 S.E.2d 858 (1994).
Second, under our Rules of Professional Responsibility, a prosecutor has the ethical duty to
exercise his authority to do justice. N.C. Rules or Professional Responsibility 3-1.11.
WHEREFORE, the Defendant respectfully requests the following relief from the Court:
1. That the Court not consent to the Assistant District Attorney's request to re-open
this case; and
2. That any and all charges against the Defendant be dismissed with prejudice; and
3. That the Court grant the Defendant such other relief as justice requires.
This is the___________day of __________________, 20______.
___________________________________
Marcus E. Hill
Attorney for Defendant
311 E. Main Street
Durham, North Carolina 27701
(919) 688-1941