We were able to get the charges dismissed yesterday for one of my clients who was facing a DUI(2nd offense). Was it because of my brilliant legal skills? Sure. Maybe. Probably not . . .
The officer didn’t show up
It was a crowded docket, our case was called, and it turned out the officer was not present to testify in the State’s case. Without any effort on my part whatsoever (I did have to say “Defense is ready, Your Honor”), the prosecutor unilaterally dismissed the charges. In this case the arresting officer was no longer employed by the police department, and it would have been difficult to get him back in to testify. So it was a banner day for my client. A win is a win no matter how you get it.
This happens every now and then in misdemeanor cases; not so much in felonies. Officers fail to show for any number of issues, including scheduling problems, miscues with the clerk or prosecutor’s office regarding their subpoena, or back-to-back shifts. Or maybe, just maybe, they know that they are about to swear to God to tell the truth on the stand, and your lawyer is going to ask them about the truth, and since they know the truth “will set you free,” it is just easier to not be there.
But you can’t depend on it
This used to be one of the “classic” ways to defend a DUI. Delay the case, delay the case, schedule it for the 4th of July, or Thanksgiving, and hope that when you finally get in there the officer fails to show. I guess it is OK for your lawyer to have this in his “bag-o-tricks,” just make sure that this is not the only trick in his bag. And do not be misled – the officer failing to show for trial does not automatically mean the case will be dismissed. If your case has been scheduled on a certain date, and you and your lawyer are present and ready for trial, then your lawyer should absolutely move for a dismissal if the State cannot proceed due to its witnesses not being there. But granting a continuance for either side is within the discretion of the judge, and it is not unusual for the State to get at least one continuance if needed, especially if the Defense has been granted one previously.
It is just so much better to have the defense case prepared to try on the day it is scheduled for trial, then when you ”luck up” and the officer is not there, and the court agrees to dismiss the charges, it is gravy.