_____________ COUNTY      FILE NO.:   



      vs.        MOTION TO DISMISS





      NOW COMES the Defendant, by and through counsel, and moves the Court pursuant to N.C. Gen. Stat. §15A-954 et. seq., to dismiss the charge against him.  In support of this motion, the Defendant shows unto the Court the following:

1. The Defendant, ______________, was charged on or about the 30th day of September, 2008, 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. The Defendant appeared in Court on November 4, 2008, and the _______ County Office of the Public Defender was appointed to represent him;

3. The Defendant’s case was continued until January 28, 2009;

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

5. 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;

6. The State issued a subpoena for it’s out of town witness, ________, to appear in court on February 23, 2009, however, the subpoena was not served because the witness lived in __________ and the sheriff was unable to reach the witness by telephone.

7. The State attempted to contact the witness by telephone on the morning of February 23, 2009 and left a message on __________ (witness') answering machine asking him to call back;

8. Counsel and the Defendant waited for over an hour for the witness to call back and the witness did not call back that morning;

9. The arresting police officer, Officer ___________, of the _________ Police Department, was available for court on February 23, 2009; however, he informed the State that he would not be available for the next three months as he was going to be on paternity leave until May 18, 2009;

10. On February 23, 2009, the Hon. _____________ was presiding over traffic court;

11. On February 23, 2009, the State moved to continue the case for three months until May 18, 2009;

12. The Defendant, by and through his counsel, objected to the motion on the grounds that there was no way on knowing whether or not  the witness would appear in court on the next setting and that the three (3) month continuance was unreasonable;

13. ___________ denied the State’s motion to continue and the State indicated that they would dismiss the charges of Driving While Impaired and Leaving the Scene of an Accident;

14. The State dismissed the charges on April 9, 2009, forty four (44) days later;

15. Defendant, __________, was charged on or about the 10th day of November, 2008, with the offenses of Driving While Impaired (DWI) in violation of N.C.G.S. 20-138.1 and Driving While License Revoked in violation of N.C.G.S. 20-28;

16. On December 3, 2008, Defendant appeared in Court and signed a Waiver of Counsel;

17. On January 7, 2009, the ________ County Office of the Public Defender was appointed to represent him;

18. The Defendant’s case was continued until February 4, 2009;

19. On or about January 13, 2009, due to a conflict, the Office of the Public Defender appointed ______________ to represent the Defendant;

20. On February 4, 2009, the next scheduled court date; the case was continued to March 3, 2009;

21. On March 3, 2009, the Defendant appeared in Court and counsel for the Defendant requested that the arresting officer Deputy ___________ be summoned to Court for the purpose of discussing the facts surrounding the Defendant’s arrest;

22. The State informed counsel that the officer’s presence would not be requested for that purpose;

23. Counsel made a request to continue the case on behalf of the Defendant and The Honorable ___________ granted said motion and continued the matter to April 1, 2009;

24. Counsel requested that Judge _____________ continue the case until the officer’s May court date because counsel was due to be on vacation until April 4, 2009;

25. Judge __________ inquired if the case was for plea or trial and counsel informed her that the State would not call the officer in for her to make that determination, therefore the case would be for trial;

26. The Office of the District Attorney made an attempt to secure Deputy _________’s presence for Court and determined that it was not his court date and that since he was an undercover officer he would need to be subpoenaed for court;

27. This information was relayed to Judge ________who agreed to continue the case past April 1, 2009, but only until April 7, 2009 and marked the case last;

28. On April 7, 2009, the Defendant was present at 8:30 and counsel informed the District Attorney’s Office that his case was for trial around 9:00 a.m.;

29. Several times during the morning before 12:00 p.m., counsel checked with the State as to the whereabouts of Deputy ________ and the State was unable to provide counsel with any information other than the fact that the Deputy had been called;

30. At approximately 12:00 p.m. counsel addressed the Court regarding the scheduling of her case;

31. The Honorable _________ set Defendant’s case for 2:30 p.m. and stated that it would not be continued again;

32. Counsel and Defendant were summoned back to the courthouse approximately 30 minutes later;

33. Upon returning to Court, counsel was informed by the State that Officer ________ was in bomb training school, that Officer ________ did not see Defendant drive and that another officer who was not listed as a witness was necessary for Court;

34. Counsel was informed by the State that she had two options; that she could consent to a continuance of the case despite it being marked last or she could agree to the State dismissing the charges and having the officer re-charge and re-arrest the Defendant;

35. The Defendant did not want to be re-arrested since he was indigent and already posted a $5000.00 bond and did not want to be looking over his shoulder until he was re-arrested; 

36. Shortly after 2:30 p.m. the State called Defendant’s case and counsel for the Defendant informed Judge ________ that she consented to a continuance and that the only reason she was consenting was that her client did not want to be re-arrested and that her hands were tied;

37. Judge _________ informed the State and the Defendant that she thought the Defendant was prejudiced and that if she could dismiss the charges she would;

38. On or about April 8, 2009, Judge _________ set a show cause hearing for April 15, 2009;

39. Counsel for the Defendant filed a Motion to Dismiss the charges which was heard along with Judge _______ ’s Motion to Show Cause on April 15, 2009;

40. Judge _______ did not find grounds to dismiss the charges and denied counsel’s Motion to Dismiss because the State cited State v. Smith, 66 N.C. App. 570, 312 S.E. 2d 222, 1984, which held that Defendant was responsible for thirty (30) days of the delay because he originally signed a waiver of counsel and then asked for court appointed counsel, the same facts as were in the case before her;

41. On or about April 15, 2009, subsequent to the Show Cause hearing, the State informed counsel that they would be re-charging the Defendant with the Driving While Impaired offense which occurred on September 30, 2008 and is the subject of this motion;

42. On or about May 2, 2009, Defendant was re-charged with the September 30, 2008, offense of Driving While Impaired in violation of N.C. Gen. Stat. §20-138.1;

43. Defendant requests the Court to dismiss the case for the following reasons:

(1) Re-charging the Defendant is a violation of the Due Process Clause

44. The State has the authority to calendar criminal cases, N.C. Gen. Stat. § 7A-49.4(a);

45. This authority is limited by the principles of Due Process found in both the state and federal constitutions, U.S. Const. Amendment XIV; N.C. const. Art. 1, § 24 and by its ethical duty to do justice, N.C. Rules of Professional Responsibility § 3-1.11;

46. A violation of Due Process may take either of two forms.  First, the State may intentionally manipulate the calendar in order to gain a tactical advantage over the Defendant.  Second, the State may actually gain a tactical advantage over the Defendant by the manipulation of the calendar, whether or not that was the State’s intent;

47. A violation of either form is remedied by a dismissal of the Defendant’s case; N.C. Gen. Stat. § 15A-854 (a)(4);

48. The State had no intention of re-charging the Defendant with the September 30, 2008, Driving While Impaired charge prior to the Show Cause hearing in front of Judge Morey;

49. In fact, it finally filed the dismissal on April 9, 2009, six (6) days before the Show Cause hearing;

50. The September 30, 2009, case was dismissed by Judge Hill for good reasons; the out of state witness was not present in court and it was unreasonable to continue the case for three months until the officer’s next court date;

51. The State has the obligation to do justice, not to revive a case that was voluntarily dismissed for good cause;

52. Because the Defendant was re-charged, the State gained a tactical advantage. It now has a better chance at trial because it has the opportunity to secure a witness it would not have otherwise had when the charges were dismissed; 

The State failed to obtain consent to re-open the Defendant’s case

53. 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);

54. It is a well settled principal of law that the State has the right to re-charge a defendant once the charges against him have been dismissed without prejudice;

55.  However, the case may only be restored to the trial docket when ordered by the judge upon the solicitor’s application, Id.;

56. In John A. Lassister 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. Lassister v. R.L. Turner 423 F.2d 897, 1970;

57. The State has not applied to re-open this case nor, has the Court consented to restore this case to the trial docket;

58. Assuming arguendo that the State made a motion to restore the case to the docket and assuming arguendo that the Court consented to the motion, these actions would deny the Defendant of his right to a speedy trial in violation of the Sixth Amendment of the United States Constitution which is made obligatory on the States by the Fourteenth Amendment Due Process Clause, Dickey v. Florida 398 US 30, 1970;  the 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 and access to the court to apply for redress of injury;

59. The open courts clause also prohibits purposeful or oppressive delays and those which the prosecution could have avoided with reasonable efforts, Simeon v. Hardin 339 NC 358, 1994, 451 S.E. 2d 858 (1994);

The State violated the local one hundred twenty day rule

60. Durham County District Court’s well settled local policy is to resolve traffic cases within one hundred twenty (120) days and as of July 1, 2009 ninety days (90);

61. This rule applies equally to Driving While Impaired charges as well as all other criminal offenses;

62. The Defendant has been denied his right to a speedy trial as the age of his case as of the date of the hearing of this motion is two hundred fifty one (251) days, well over the old hundred twenty 120 day rule as well as well over the new ninety (90) day local rule;

The Defendant has been prejudiced by the State’s actions

63. The Defendant has also been prejudiced as he has suffered anxiety and concern over this case and still continues to do so.  He thought this case was disposed of and behind him.  He does not understand why the State has the right to re-charge him.  He has also been prejudiced by having to come to court 5 times for the same offense;

The State failed to try Defendant’s case within the time prescribed by law

64. “Where a criminal charge is dismissed without prejudice upon a defendant’s motion under the Speedy Trial Act, the trial of the defendant upon further prosecution by the state must begin within 120 days (90 days beginning 1 October 1981) 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;  

65. More than ninety (90) days have elapsed since Judge Hill’s denial of the State’s Motion to Continue and the State’s statement that it would take a voluntary dismissal of the charges; in fact one hundred forty days (140) have elapsed;

66.  Although the State has the authority to calendar criminal cases, the ultimate authority over managing the trial calendar rests with the Court, NCGS 7A-49.4(h), see also Simeon v. Hardin 339 NC 358, 1994;

67. 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;

68. In the present case, the State’s action nullifies Judge Hill’s ruling of February 23, 2009;

    WHEREFORE, the Defendant respectfully requests the following relief from the Court: 1. That jurisdiction over this matter is denied

    2. That any and all charges against Defendant be dismissed with prejudice;

    3. That the Court grant the Defendant such other relief as justice requires.

Respectfully submitted, this the ______ day of __________________, 2009.


                                                Attorney for Defendant

                                                CERTIFICATE OF SERVICE

      The undersigned hereby certifies that the foregoing Motion to Dismiss was served on Counsel as listed below by hand delivering a copy thereof to: 

    ______________, Assistant District Attorney

    Office of the 14 Prosecutorial District

    Durham County Judicial Building

    6th Floor

    Durham, NC  27701 

      This the ______ day of ____________, 20______. 


                                   Attorney for Defendant