By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal
Criminal cases can be like snowballs — as they head downhill they can get harder to stop and they pick up momentum. An experienced and skilled criminal defense lawyer knows when, how and why police or prosecutions will want to dismiss criminal cases.
The Top of the Mountain
Using our snowball analogy, the beginning of the criminal case (or the top of the mountain) is generally where the police get involved. Frequently, that may be a traffic stop in the case of a DWI or drug seizure, or that can be where someone makes a report to police and police detectives get involved investigating an assault (as an example).
Will the police drop the case? Perhaps. It obviously depends on the type of offense and other factors weigh in such as the attitude of alleged victims and/or public pressure. On DWI’s, for example, the police are under a great deal of pressure to pursue those types of cases. Police agencies are reviewed regularly by MADD and other Police agencies actually apply for grants for the express purpose of prosecuting DWIs. Those groups don’t like hearing that the police are dismissing charges on DWI arrests. You can expect many agencies to have policies in place that don’t allow them to not-persue charges after a DWI arrest.
On other cases that the police investigate, it may be possible to either convince the police that the case isn’t worth pursuing. Always have a lawyer when negotiating directly with law enforcement agencies! Certain rules such as the attorney-client privilege and other rules of evidence protect you when your lawyer is dealing directly with law enforcement — not to mention an experienced criminal defense lawyer knows how to deal with police better than you.
Some police agencies will resist filing criminal cases on people who assist them in further investigations. The most classic example is with narcotics and drug enforcement. Again, having an attorney assist you in these types of negotiations can help assure that you are protected.
Down the Hill
Eventually, the case will make it’s way to the District Attorney’s office. Once it gets there the “snowball” can be harder to stop. Prosecutors have an affirmative duty under the Penal Code not to seek convictions — but to see that justice is done. So they can and do dismiss cases or sometimes they’ll reject cases even though the police may want to prosecute.
Prosecutors control the Grand Jury process in felony prosecutions and often they will allow the defense to submit information (called a Grand Jury Packet) to the Grand Jury attempting to persuade them not to issue a true bill of indictment. While the prosecutor doesn’t have direct control over the Grand Jury — if the Grand Jury issues a “no-bill” or won’t indict a person for a felony — it can basically have the same effect as a dismissal.
After the Case is Charged by Indictment or Information
Once the State files an Information (in Misdemeanors such as possession of marijuana or Driving While Intoxicated), or they attain an indictment in a felony, then getting a prosecutor to dismiss becomes even more difficult — but again — not impossible.
Many prosecutors in Texas can be very resistant to dismissals and often times will try weaker cases they think they should lose rather than appear weak on crime. Again, the unique facts of every case govern the State’s willingness to dismiss charges short of a trial. Some charges, like DWI and Assault/ Family Violence cases are dictated by policy in Collin County — and the Assistants District Attorneys need special permission from their superiors for dismissals.
Often a dismissal at this juncture is a result of an attorney that hustles to build a case as to why the prosecution needs to dismiss the case in the best interests of justice and/or because he convinces the prosecutors they will not only lose the case — but lose face before the citizens.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any situation you should consult an attorney directly.