Can an attorney get my case dismissed?
Maybe. Under some circumstances, an attorney can obtain a dismissal but, according to the rules of the State Bar of Texas, no attorney can ethically guarantee a dismissal or any other result in a criminal case.
In a criminal case, the prosecutor is usually the only one allowed to decide whether or not a case will be dismissed. This decision can depend on many factors, including the quality of the State’s evidence, availability of key witnesses, potential defenses, and extenuating circumstances of the accused. An experienced criminal defense attorney will attempt to discover factors that support dismissal and negotiate with the prosecuting attorney to obtain the most favorable outcome based on those circumstances.
A prosecutor may dismiss a case if he believes that the evidence does not support the charge or that a dismissal serves the interest of justice for some other reason.
As your defense attorney, I will carefully prepare your defense and investigate the quality of government’s evidence against you. Sometimes the evidence is insufficient. Sometimes it is inadmissible because it was improperly obtained. Sometimes I uncover contrary evidence that convinces the prosecutor to dismiss the case outright.
For example, I once had a client charged with criminal trespass in an area that the police report described as heavily forested with statutorily prescribed criminal trespass warnings. The report conflicted sharply with my client’s description of the area. When I visited the scene, I discovered not only that my client was right but also that the investigating officer clearly lied to justify the arrest. After examining the packet I prepared with snapshots and Google map images of the scene, the prosecutor dismissed the case.
Most cases don’t have such serious flaws but I personally examine the evidence in every one to be sure.
Grand Jury Dismissals (No-Bills)
Author Tom Wolfe famously quoted a New York judge as saying that a good prosecutor can persuade a grand jury to “indict a ham sandwich.” While this may be true, I have had great success in getting baseless felony charges thrown out at the grand jury level.
Generally speaking, prosecutors don’t want to waste their time prosecuting bogus cases, so when I can provide them with compelling evidence that shows a very weak or baseless case, they often choose to dismiss the case or ask the Grand Jury to no-bill it before formal charges are filed. This type of grand jury work is only possible on felony cases when I am hired to represent the defendant before the case is formally indicted by the Grand Jury.
Texas law allows prosecutors to skip the step of presenting a case to a Grand Jury when misdemeanor charges are involved, which may explain why more baseless and marginal cases seem to be filed in the County Courts at Law than in the District Courts.
Deferred Prosecution Dismissals
In Travis County, Deferred Prosecution is a type of dismissal contract between the defendant and the prosecution. It is sometimes available as a plea bargain agreement, usually for people with an otherwise clean criminal record.
When the defendant enters into a deferred prosecution agreement, the prosecutor dismisses the case in exchange for a signed confession and a promise to not commit other crimes and to meet other conditions, such as counseling or community service, during a specified period of time. If the defendant fails to meet the conditions, then the prosecutor will re-file the case and use the signed confession as evidence in the subsequent prosecution. If the defendant successfully completes the terms of the agreement, then the case will stay dismissed.
Deferred prosecution is not as desirable as a straight dismissal, but if the defendant satisfies the agreement, then it can ultimately lead to the same desirable result, which is eligibility to file a petition for expunction to have the arrest removed from his or her criminal history.
Deferred Disposition Dismissals
Deferred Disposition is sometimes offered as a plea bargain agreement in Austin Municipal Court and the Travis County J.P. courts for Class C misdemeanors. This program is very similar to the Deferred Prosecution program described above except the deferral period is shorter and the defendant may be required to pay a fine and court costs.
The Travis County Attorney’s office may offer Pretrial Diversion to a defendant accused of a low level, non-violent misdemeanor like shoplifting. Successful completion of this program results in a dismissal that can be expunged without the waiting period required to expunge most other types of dismissals.
Charge Reduction Dismissals
A reduction dismissal is a type of plea bargain agreement where the prosecutor dismisses the original charge and the defendant agrees to plead guilty or no-contest to a lesser charge or a charge with less serious consequences. For example, the prosecuting attorney may agree to dismiss a DWI charge if the defendant agrees to plead guilty to Reckless Driving or Obstruction of a Highway.
Deferred Adjudication is Not a Full Dismissal
Deferred Adjudication is not a true dismissal but rather a type of probation. The law says that deferred adjudication is not a “final conviction” but there are many exceptions and circumstances in which it might as well be a conviction.
The primary advantage of deferred adjudication over straight probation is that when a person successfully completes the probationary period, he may become eligible to file a petition for non-disclosure to have the record sealed from the general public. If the petition is granted, then he is legally entitled to deny the arrest on most job applications. Unfortunately, the arrest record will still be available to law enforcement and to certain professional licensing agencies and other specified entities, such as the State Bar of Texas and the Texas Board of Nurse Examiners.
Judicial Clemency Dismissal
A judge may optionally dismiss charges when a defendant is discharged from straight probation. An attorney can help with a motion for early termination of probation and judicial clemency.
If judicial clemency is granted, the case is dismissed but this type of dismissal can’t be expunged. Rather, it is treated like deferred adjudication and eligible for non-disclosure.
Dismissed Cases Are Not Automatically Removed
From Your Criminal Record
Many people mistakenly believe that arrest records are automatically removed from a person’s criminal history when a criminal charge is dismissed. In reality, the arrest stays on the person’s record until he obtains an expunction. When an expunction is granted, the court orders all official records of the arrest and prosecution to be destroyed. For more information, see the Expunction FAQ.
With a dismissal, a person must generally wait until the statute of limitations for the offense expires to be eligible for an expunction. The limitations period is two years for misdemeanors and three or more years for most felonies. Trial is obviously more risky than a dismissal or plea bargain agreement but being acquitted at trial (found not guilty) results in immediate eligibility for an expunction.