How Do I Get My Case Dismissed?

If you’ve been charged with any criminal offense anywhere in the Greater Houston area or anywhere in Texas, it is understandable that you may be feeling anxiety and wishing for your case to be resolved. After all, a criminal conviction can leave a permanent conviction on your record and potentially jeopardize your freedom and make it difficult to find employment. Most employers will check an applicant’s criminal history before hiring and a criminal conviction can be very detrimental to getting your dream job. Whether you’re charged with theft, driving while intoxicated (DWI) or domestic violence, the best possible result is a dismissal of your case.

How are criminal cases resolved?

Almost all criminal cases are resolved one of three ways – dismissal, trial, or plea agreement. In almost every case dismissal is the preferred way to resolve the case. A dismissal ends the case favorably without the risk of a trial. But it is important to remember that in criminal cases, it is the prosecutor who files charges and it is the prosecutor who needs to be the one to dismiss a case (except under very rare circumstances, a judge lacks the power to dismiss a case).

Under what circumstances is a case dismissed?

Cases are generally dismissed in two circumstances – where there is a factual problem with a case, and where there is a legal problem with a case. Let’s talk about factual problems first:

If you are charged with DWI, the State will typically have several pieces of evidence against you. For example, they could have a blood result, offense report and video showing you performing police balance tests (known as Standardized Field Sobriety Tests). The prosecutor hopes that this evidence will allow him to prove the case against you in court in front of a jury if necessary. But let’s say the evidence is weak from a prosecutor’s standpoint. The blood result could be right at the limit such that it’s possible that you were under the legal limit at the time you were driving. Perhaps you performed the police balance tests very well and the officer made a comment that you look sober. In this case, the prosecutor might have serious doubts about whether or not he will be able to prove the case against you and might dismiss the case because the facts are not strong enough to go forward.

A case that is dismissed for legal reasons, on the other hand, might be much stronger from a factual perspective (you could appear to be clearly intoxicated, for example), but there could be a legal problem with the case that makes it impossible for the prosecutor to prove his case. An example of this could be an illegal traffic stop. The laws of Texas and the United States say that a police officer must have a valid legal reason to stop and detain a person. Most traffic stops are based on traffic offenses like speeding, expired registration, or an unsafe lane change. But if the officer stopped you because, for example, he thought you just “looked” like you were up to no good, that almost definitely won’t be a good enough reason.

The consequences of an illegal traffic stop are that the prosecutor will not get to introduce the “fruit” of the violation in his case because it will be suppressed by the judge. Again, the law of Texas and the United States says that evidence obtained in violation of the law cannot be used. So in this example, all of the evidence from the traffic stop would be thrown out and not available for a jury to consider since it was all the “fruit” of an illegal traffic stop.

There can be several other types of legal reasons why a case gets dismissed. Let’s say that you are charged with theft but the only real evidence against you is your confession. If the police obtained your confession in violation of your Miranda rights, then the suppression might be thrown out and your case could be dismissed because the prosecutor needed the confession in order to be able to attempt to prove his case against you.

What can my lawyer do to get my case dismissed?

A criminal defense attorney can make a dismissal more likely whether a case is dismissed for legal or factual reasons. If we are talking about a dismissal for factual reasons, a proactive lawyer can uncover weaknesses in the prosecutor’s case. In a domestic violence case, for example, he might subpoena medical records that show that the person who made the accusation was highly intoxicated and made comments to a nurse that she just made up the accusation to get back at her husband. In a DWI case, a defense attorney can subpoena videos from the jail that are helpful that show that there was some violation of protocol that would, for example, get a breath or blood test suppressed for legal reasons. Through hard work and creativity, a smart criminal defense lawyer can knock out key pieces of evidence that can cause a case to crumble and get dismissed for factual reasons.

Getting a case dismissed for legal reasons is also something that a criminal defense attorney should be proactive about. Prosecutors will usually be very resistant to admitting that a police officer violated the law. Let’s imagine that you are charged with possession of controlled substances after you were stopped in your car. The law says that there is a limit to how long a traffic stop can take (the cops can’t keep you detained for hours to investigate an allegation of speeding). If there’s a possibility that this legal principle has been violated, a criminal defense attorney might have to argue that there was a violation at a suppression hearing, where the judge rules on the argument. If the judge agrees with the defense, then in most cases he would rule that the “fruit” of the violation – the drugs that were found – cannot be used since they were obtained illegally and in violation of the law.

Will a case be dismissed if the complaining witness “drops” the case?

In cases with an alleged victim – known as a “complaining witness” – in Texas, there is often confusion about whether the case will be dismissed if the case is “dropped.” The short answer is no. The State of Texas can continue to prosecute a case regardless of the wishes of the alleged victim.

But again, a proactive criminal defense attorney can do things in this situation to improve the odds of a dismissal. If we are talking about a domestic violence case, a criminal defense attorney should make an attempt to get a truthful statement from an alleged victim. This statement might possibly explain that the alleged fight was really a misunderstanding, or that the defendant was acting in self-defense because the alleged victim was the aggressor in the situation. The best statements are notarized and make clear that the statement is truthful and that the alleged victim is not being threatened or given anything of value to make the statement.

A smart criminal defense attorney will use a statement like this strategically to increase the chances of obtaining a dismissal.

Are there programs that I can enter into to get my case dismissed?

Many counties in Texas have programs known as pre-trial diversion programs that can result in the dismissal of a case. These programs are mostly available for misdemeanor offenses but occasionally they are offered in felonies.

For example, Harris County has a pre-trial diversion program for DWI cases. This program is essentially a contract with the District Attorney’s Office that is certain conditions are met, the case will be dismissed. The first step is applying for the program and your attorney can help you do that. In most places, pre-trial diversion is only available for defendants with no criminal history. Because each county creates its own program, the rules will vary between counties.

Although a pre-trial diversion program will lead to the dismissal of a case, it should not be a lawyer’s plan going into the case. It is much better to obtain an outright dismissal for legal or factual reasons. These programs often require a defendant to write an apology letter and essentially admit guilt. If the defendant does not complete the program successfully, then the defendant will be kicked out of the program. The statement he gave could complicate the case by making it harder to go to trial.

A smart and knowledgeable criminal defense attorney will treat the pre-trial diversion program as a fallback – an option to use only after all other options are exhausted.

Are there any other ways a case could be dismissed?

In some cases, a criminal defense attorney might be able to negotiate an informal dismissal, sometimes in exchange for the completion of a class, community service hours, or a donation to a charity. This will sometimes happen in very minor cases where a person might be guilty, but a sensible prosecutor sees that the case really doesn’t belong in the criminal justice system. For example, if a spouse is charged with domestic violence because he shoved his spouse after he found out she was cheating, he might technically be guilty of a criminal offense. However, a prosecutor might be sympathetic to what caused him to act the way that he did, and offer to dismiss the case if he completes a class, like anger management.

What is the timeline for a dismissal?

Your case could be dismissed anytime. But generally, criminal cases aren’t dismissed for several months in most counties. Prosecutors have hundreds of cases they are handling and they typically do not look closely at a case until it gets a little older. If your case is dismissed because you entered a pre-trial diversion program, that could take anywhere from 30 days to a year.

What are the effects of a dismissal?

If your case is dismissed under any of the circumstances discussed here, you will generally no longer be under the court’s authority and you will usually be eligible for an expunction. An expunction will allow you to erase the arrest from your criminal history.

You should be suspicious of any attorney that guarantee a dismissal of your case. Attorneys are not allowed to guarantee the dismissal of a case for the simple reason that they can’t control the facts. However, experienced attorneys can make a dismissal more likely through hard work and an in-depth knowledge of the law and the facts of your case.

Contact Our Houston Civil Rights Attorney

Houston criminal defense attorney Jose Ceja has devoted his career to the practice of criminal law and began his career as a drug prosecutor and prosecuted felony drug cases for three years. Handling thousands of drug cases throughout his career, Mr. Ceja has litigated every issue mentioned above countless times. If you have been arrested and charged with a crime anywhere in the Greater Houston area, Mr. Ceja is a superb choice. Contact us for a free consultation.

Ceja Law Firm handles criminal defense cases throughout Texas including Houston, Brazoria County, Chambers County, Fort Bend County, Galveston County, Harris County, Liberty County, Montgomery County, Walker County, and Waller County.