DISTRICT COURT DIVISION
____________ COUNTY                       FILE NO. 

                             BRIEF IN SUPPORT OF
         vs.                    MOTIONS TO QUASH
                             AND TO DISMISS


     NOW COMES the Defendant, by and through his attorney and in support of his motions, pursuant to N.C. Gen. Stat.§§ 15A-954 et. seq. and 15A-1415, to dismiss with prejudice the charges against him, shows unto the Court the following:

Findings of Fact
On November 16, 2008, the defendant was charged with Driving While Impaired.  On January 28, 2009, the first court date, the case was continued until February 25, 2009, because the sitting Judge requested a recusal.  The defendant is a local attorney, known to the local bar and many judges. On February 25, 2009, the case was continued until March 25, 2009, because the calendared, visiting Judge was not available. On March 25, 2009, the calendared visiting Judge was not available again but the defendant's attorney called the case for trial.  The police officer was present in court and heard the Judge order everyone, including the police officer, 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 and the officer had not appeared.  Consequently, the State moved for a continuance.  The Court denied the State's motion.  Thereupon, the State voluntarily dismissed the case.    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.
The court date set on the warrant was May 20, 2009.  On May 20, 2009, Judge ________ by Court Order was assigned to hear Defendant's case with a new court date of July 15, 2009.

(i) The court date was not set within one month of the issuance or reissuance of the summons or warrant, pursuant to N.C.G.S§ 15A-303. N.C.G.S § 15A-303(d) 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 set by the warrant is May 20, 2009, subsequently continued until July 15, 2009.   The court date, May 20, 2009, is more than one month and is, in fact, almost two months following the issuance of the warrant and more than five months following the issuance of the original summons.  The continued court date of July 15, 2009, is almost 4 months after the second summon's issuance.   Additionally, no cause for the new court date to be set more than one month from its issuance, as required by 15A-303(d),  is noted on the warrant.    
Finally, the warrant itself is improper.  Pursuant to N.C.G.S.  § 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 justify the issuance of the warrant is that the officer chose not to return to court for the trial.
If a warrant is regular and valid on its face, objection thereto, should there be grounds therefor, must be by motion to quash.  Steve v. Green, 251 N.C. 40, 110 S.E.2d 609 (1959). A reading of the applicable statute renders the warrant defective and it should therefore be quashed. (ii) The prosecutor abused his calendaring authority having the warrant issued and in recalendaring the case for trial. By statute [and local rule], the prosecutor has the authority to calendar criminal cases. N.C. Gen. Stat. 7A-49.4(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.
This manipulation of the calendar violated the defendant's constitutional rights to due process of law.  Simeon v. Hardin, 339 N.C. at 378.  Such a violation is either reversible per se, or, at least, presumptively prejudicial.  Id; see also State v. Cofield, 320 N.C. 297 (1987); State v. Harbison, 315 N.C. 175 (1985).  
Under the constitutional standard of prejudice, the state has the burden of showing that
the manipulation of the calendar was harmless to the defendant beyond a reasonable doubt.  
N.C. Gen. Stat. 15A-1443(b).
The state cannot show beyond a reasonable doubt that its use of the calendaring
authority in this case did not prejudice the defendant.  Therefore, the charges against the
defendant should be dismissed with prejudice.
(iii) The State' recalendaring of an already dismissed case, without the Court's permission undermines the Court's authority to deny continuances and to calendar cases.
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, 214 (1967).  However, the case may only be restored
to the trial docket when ordered by the Judge upon the solicitor's application, Id.
Said another way, in John A. Lassiter v. R.L. Turner 423 F.2d 897 (1970).
"under North Carolina law, a nolle prosequi, not with leave, does not terminate the prosecution.
It may be reopened with the court's permission. " John A. Lassiter v. R. L. Turner, 423 F.2d at 902 (1970) (emphasis added).
On March 25, 2009, when the Court denied the State's continuance, the State had been
on notice and should have been ready to proceed with the case on that day.  Apparently, the
State did not have the evidence to proceed and thus dismissed the case.  By issuing the warrant
and  recalendaring the case two months later and then continuing the case to four months later, the State is abusing its calendaring authority to give it more time to prepare and procure the officer, obviously a necessary witness, to be at trial.  The State should not be given another bite at the apple.
Furthermore, allowing the State to re-open the case against the Defendant is
fundamentally unfair as prohibited by the Due Process Clause of the Constitution of
the United States Constitution as well as the North Carolina Constitution;
The Court has the ultimate authority over managing the trial calendar, NCGS 7A-
49.4(h), regarding specifically superior court criminal case docketing.  See also Simeon v. Hardin 339 NC 358 (1994);
Allowing the State to re-open the case against the Defendant takes away the Court's authority to deny continuances and undermines its calendaring authority.  NCGS 7A-49.4 (h), see also Simeon v. Hardin 339 NC 358 (1994).
(iv)   A trial date approximately 112 days after Defendant's second arrest and approximately 168 months after his initial arrest violates the United States Constitution's Sixth Amendment Speedy Trial guarantee.
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, 451 S.E. 2d 858 (1994); This clause prohibits purposeful or oppressive delays and those which the prosecution could have avoided with reasonable efforts; 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).
Durham County local rules provide that the State has 120 days to call a case for trial and to dispose of the case;
This rule applies equally to Driving While Impaired charges as well as all other criminal offense.
The Defendant was denied his right to a speedy trial as his case from the first court date of January 28, 2009, to the date of the hearing of this motion is 168 days old, well over the 120 mark;.
Indeed, the United States District Court for the middle district of North Carolina in its local rules of criminal practice plans for prompt disposition of criminal cases in compliance with the Speedy Trial Act of 1974 (18 U.S.C. §§ 3161, et seq.).
18 U.S.C. § 3161(c) provides:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.
However one counts the days from the date the defendant has appeared before a judicial officer to the court date of July 15, 2009, Defendant's guarantee to a speedy trial under the Sixth Amendment has been violated.

N.C.G.S. § 15A-954 states, "(a) The Court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that: . . .
(3)  The Defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.

On the basis and for all the reasons stated above, Defendant requests the court to dismiss the charge of driving while impaired, along with any other charges, with prejudice.

This is the___________day of __________________, 20____.

Marcus E. Hill
Attorney for Defendant
311 E. Main Street
Durham, North Carolina 27701
(919) 688-1941