DISTRICT COURT DIVISION
_________ COUNTY                       FILE NO.


         vs.                    MOTION TO DISMISS AND QUASH
                                      THE WARRANT


     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


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


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