___________ COUNTY       FILE NO: 



      vs.       PRELIMINARY DETERMINATION       





      This matter came on to be heard and was heard on July 13, 2009, on the Defendant’s Motion to Dismiss.  Present before the Court were _______________, the Defendant, his court appointed attorney, ___________ and __________, Assistant District Attorney for the Fourteenth Prosecutorial District (hereinafter the “State”).  After considering filed motions; relevant case law and arguments, the Court now makes the following findings


1. On or about the 30th day of September, 2008, the Defendant was charged with the offenses of Driving While Impaired (DWI) in violation of N.C. Gen. Stat. §20-138.1 and Leaving the Scene of an Accident in violation of N.C. Gen Stat. §20-166 ( c );

2. On November 4, 2008, the ____________ County Office of the Public Defender was appointed to represent the Defendant and the Defendant’s case was continued until January 28, 2009;

3. On or about November 13, 2009, due to a conflict, the Office of the Public Defender appointed _________ to represent the Defendant;

4. On January 28, 2009, the next scheduled court date; the State’s witness was not present and the case was continued to February 23, 2009;

5. On February 23, 2009, the Hon. ____________ was presiding over traffic court;

6. The State moved to continue the case and Judge _________ denied the State’s motion to continue.

7. The State signed a dismissal of the charges on February 23, 2009 and the dismissal was entered in the court system forty four (44) days later on April 9, 2009;

8. The State did not on its own volition dismiss the charges against the Defendant because its witness was unavailable but did so only after its Motion to Continue was denied;

9. On or about April 15, 2009, after a Show Cause hearing in another case with the Defendant, the State informed counsel that they would be re-charging the Defendant with the Driving While Impaired offense which occurred on September 30, 2008;

10. On May 1, 2009, sixty six (66) days after the initial dismissal of the September 30, 2008 offense, Defendant was re-charged and re-arrested for Driving While Impaired in violation of N.C. Gen. Stat. §20-138.1;

11. On July 13, 2009, Defendant’s attorney filed a Motion to Dismiss the charges against the Defendant;

12. At the hearing of the Motion to Dismiss, Defendant’s attorney argued that re-charging the Defendant was a violation of the Due Process Clause of the State and Federal Constitution, U.S. Const. Amendment XIV; N.C. Const. Art. 1, § 3-1.11; that the State failed to obtain consent to re-open Defendant’s case under Klopfer v. North Carolina, 386 U.S. 213 (1967), that the State failed to try Defendant’s case within the time prescribed by law citing State of North Carolina v. David Junior Ward 46 N.C. App. 200; 264 S.E. 2d 737; 1980; that the State violated the local one hundred twenty (120) day rule as well as the local ninety (90) day rule; and that the Defendant was prejudiced by the State’s actions;

13. The State argued that the case of Klopfer did not apply to the case at hand as the Speedy Trial Act was repealed and a nolle prosequi was no longer the way dismissals were handled.  The State also argued that it had the right to dismiss a case under N.C.G.S. 15A-931 and that neither condition of re-charging a defendant was violated; jeopardy had not attached and the statue of limitations had not run;


1. The Court has jurisdiction over this matter;

2. The Defendant has a constitutional right to a speedy trial as guaranteed by the Sixth Amendment of the United States Constitution which is made obligatory on the States by the Fourteenth Amendment Due Process Clause;

3. The Defendant also has a right to fundamental fairness as guaranteed by the Due Process Clause of the United States Constitution as well as the North Carolina Constitution and the open courts clause of the North Carolina Constitution, N.C. Const. art. 1 Sect. 18 which guarantees a criminal defendant a speedy trial, an impartial tribunal, access to the court to apply for redress of injury and a finality to criminal proceedings;

4. Durham’s District Court policy to resolve traffic and criminal court cases within one hundred twenty (120) days and as of July 1, 2009, ninety (90) days is well settled and is memorialized by Durham County’s Local Rules signed by the Chief District Court Judge Elaine Bushfan;

5. Because of the volume of cases the one hundred (120) day and ninety (90) day rule will be enforced absent exigent circumstances;

6. The ultimate authority over managing the trial calendar rests with the Court, N.C.G.S. 7A-49.4, Simeon v. Hardin 339 NC 358, 1994;

7. The State’s action of re-charging the Defendant after the Court’s denial of the State’s motion to continue rendered Judge __________’s order meaningless and took away his inherent authority to make rulings.  Such violation is fundamentally unfair, a violation of the Due Process Clause and in contrast to the holding in Simeon v. Hardin 339 NC 358, 1994;

8. The Defendant was prejudiced by the State’s actions.  He was re-arrested, re-charged with a case that he thought was over and suffered anxiety and concern as a result of the State’s actions;

9. Moreover, the State’s decision to wait more than two months to re-charge the Defendant was an egregious delay;

10. The local 120 rule and the Defendant’s right to a speedy trial under the Sixth Amendment of the United States Constitution as guaranteed to the states by the Fourteenth Amendment Due Process Clause were violated as more than two hundred fifty one days had elapsed since the Defendant’s first appearance on the initial charge, well beyond the local rule.  Because the State dismissed the charges after Judge Hill denied its Motion to Continue the amount of time used in calculating the one hundred twenty days (120) begins from the first court appearance;

11. The Defendant was denied his constitutional right of Due Process of Law as the State gained a tactical advantage over the Defendant.  By re-charging the Defendant with Driving While Impaired, the State was able to secure a necessary witness who was not initially available;

13. Klopfer v. North Carolina, 386 U.S. 213, 214 (1967), and John A. Lassister v. R.L. Turner 423 F.2d. 897, 1970 require the State to get consent to re-open a case that has been dismissed.  The State did not apply to re-open the Defendant’s case and the Court does not grant permission to re-open the Defendant’s case;

14. A case that has been dismissed upon a Defendant’s motion on speedy trial grounds must begin within ninety (90) days from the date the order is entered dismissing the charge without prejudice.  State of North Carolina v. David Junior Ward 46 N.C. App. 200; 264 S.E. 2d 737; 1980.  More than one hundred forty days (140) have elapsed here in violation of State v. Ward, id;


1. The Defendant’s Motion to Dismiss based on due process and other constitutional grounds is hereby granted and the case is dismissed with prejudice. 

This the _____ day of July, 20______. 



                                          District Court Judge Presiding