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Filing a Pretrial Motion to Dismiss | LegalMatch Law Library

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What are Pretrial Motions?

In a criminal trial, the government and the defense both have the right to file a variety of pretrial motions. As the name indicates, these requests to “move” the court to take some action are filed before the case goes to trial.

While some motions may be made in open court verbally, many are required to be in writing and sent to the opposing side allowing the opponent time to respond. Pretrial motions in a criminal case are usually filed after a preliminary hearing or indictment.

What is a Motion to Dismiss?

A motion to dismiss is a defendant’s request that the court throw out the charges against them due to some defect. A motion to dismiss is different from pleading not guilty and wanting the court to dismiss because you did not commit the crime alleged.

Rather, a motion to dismiss argues that the government or the party bringing the case:

  1. Failed to follow some procedure required by law,
  2. Made a mistake in the charging documents,
  3. Violated the defendant’s rights in such a way that warrants a dismissal, or
  4. The case is barred because the statute of limitations has lapsed.

Jurisdictions can differ regarding when such a motion must be filed before trial and in what form it must take to be presented to the court. Thus, it is important to be familiar with your local rules.

What Do I Need in Order to File a Motion to Dismiss?

There are several grounds for a motion to dismiss. In order for your motion to be considered, you must include a legal reason for the dismissal. The following are examples of common grounds for a dismissal of criminal charges:

  • Lack of Jurisdiction: Only the state in which the crime occurred has jurisdiction to proceed with a criminal case. If the crime alleged occurred in Florida but the state of Georgia arrests and attempts to prosecute the defendant in Georgia, the defendant should be able to get the case thrown out. However, Florida can then file charges in Florida.
  • Lack of Evidence: The government must lay out sufficient facts to show the allegations meet all elements required for the particular crime alleged. If they are missing one element or lack sufficient evidence to proceed, the court may grant a dismissal.
  • Statute of Limitations: Many crimes have an expiration date. If the government fails to file the charges within the legal timeframe, the case may be dismissed.
  • Lack of Due Process: If the government and its agents, such as police officers, violate the defendant’s right to due process, then the charges may be dismissed.
  • Violation of Speedy Trial Right: If the government delays the proceedings to such an extent that it violates the defendant’s right to a speedy trial, the case may be dismissed.
  • Defective Charging Document: The government must include specific language in the written charging document such as specific dates and locations of what the defendant is accused. Any failures to provide such details may be cause for a dismissal.

What Should be Included in a Pretrial Motion to Dismiss?

The motion must be written and follow any local rules regarding written motions to the court. It should layout as clearly as possible one or more grounds for why the case should be dismissed.

If there is any relevant case law or statutes to support your claim, include proper citations. Be as specific as possible and provide the court with copies of the government’s filings and any other evidence to demonstrate the grounds for the dismissal.

What Happens After I File My Motion to Dismiss?

Once you file and serve the government your motion, the court will likely give the opponent the opportunity to respond to the motion and then they may set a court date for both sides to present their arguments.

If your motion is denied, the case against you will continue. Depending on the outcome of other pretrial motions relating to admissible evidence or your discovery of the evidence against you, you may be able to file another motion to dismiss based on this new information.

If your motion is granted, then the charges are thrown out. However, depending on why the case was dismissed, the government may be able to refile charges against you after correcting the mistake that caused the dismissal.

In some cases, the government is prohibited from bringing charges again based on the same set of facts after a dismissal.

Should I Hire a Criminal Attorney?

Yes. Criminal charges are serious and you may face a lengthy jail sentence and debilitating fines. Drafting and filing pretrial motions can be complicated but a local criminal lawyer can help make the best argument using their knowledge and experience.

The success of a pretrial motion to dismiss can end the embarrassing and harmful effects to your family and reputation quickly before a trial begins. Additionally, a lawyer can explain your rights throughout the process and represent you in court.

Photo of page author Lauren Wallace

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 06-01-2018 01:28 PM PDT

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