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  1. #1
    Join Date
    Jun 2009
    Location
    South Florida
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    6

    Default Filing a Motion to Dismiss in Florida

    So I was arrested on a DUI charge with non-injury accident (first offense) in June 2009. My attorney took depositions from every person I came into contact with. The officer that filed the report listed two witnesses (names/address). While my attorney was deposing that officer (under oath) the officer stated that he talked to several witnesses at the scene.

    My attorney asked him, "why didn't you list the other witnesses in the report?"

    He answered that there were only two places on the form for witnesses so he only recorded the two.

    My guy says "you couldn't get another form or write on the back?"

    The motion to dismiss is based on the constitutional right that I am entitled to talk to every witness the officer talked to. Since he admitted that he interviewed more than the two witnesses he listed, he violated my rights.

    Anyone have any thoughts on the strength of this motion? It's being heard next month.

    TIA!

  2. #2
    Join Date
    Oct 2005
    Location
    California
    Posts
    1,206

    Default Re: Motion to Dismiss (Florida)

    I think your attorney is in a much better position to know that than anyone you'll hear from here. So, what did your attorney say about that possibility?

  3. #3
    Join Date
    Jun 2009
    Location
    South Florida
    Posts
    6

    Default Re: Motion to Dismiss (Florida)

    Quote Quoting chuckycheese
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    I think your attorney is in a much better position to know that than anyone you'll hear from here. So, what did your attorney say about that possibility?
    I agree with you, Unfortunatley I've got an attorney that likes to say "anything is possible" or "it's up to to the judge" all the time. I've asked him several times what his "opinion" or "best guess" or "gut feeling" would be about several issues. He tells me he doesn't speculate. I'm sure his 30 years of experience with DUI cases proabably taught him to not give false hope.

    We have 2 or 3 other motions to be heard at the same time but this is the only motion to dismiss.

  4. #4
    Join Date
    Jun 2009
    Location
    South Florida
    Posts
    6

    Default Re: Filing a Motion to Dismiss in Florida

    It's a "Destruction of Evidence" Motion to dismiss...just found out.

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Filing a Motion to Dismiss in Florida

    How is your defense affected? Were these witnesses expected to testify that you didn't get into an accident? That you appeared sober? Or what?

  6. #6
    Join Date
    Jun 2009
    Location
    South Florida
    Posts
    6

    Default Re: Filing a Motion to Dismiss in Florida

    Quote Quoting Mr. Knowitall
    View Post
    How is your defense affected? Were these witnesses expected to testify that you didn't get into an accident? That you appeared sober? Or what?
    That is exactly the point. The "defense" has no access to these witnesses because the officer did not record their information (there is no telling what these witnesses might have testified to...the Defense will never know?). As you are probably aware, regarding a Criminal investigation, the officer that is interviewing witnesses MUST identify each witness they interview. Since the officer represents the "State" and ultimatley the prosecution in this matter....the defense would be entitled to any and all witnesses the state has interviewed. These witnesses' statements are considered evidence, evidence that the State (at the time of the incident) had access to. Maybe the officer didn't like what they had to say so he didn't record their info. Maybe he was just negligent in his duties and their really was no malicious intent. The fact of the matter which I'm supposing will be held up by stacks of case law is that the officer has this particular obligation in this situation and he failed to follow the law...oh yeah....to my (possible) detriment. The police are SUPPOSE to be aware of and protect each individuals rights at all times..."Serve and Protect". Sorry about all the spelling problems...I'm typing fast and spell badly.

    Oh...I forgot to mention...I talked to a cop friend of mine from a different county that started out in DUI investigation and told him about this situation and he said the officer broke the law when he admitted that he talked to more people than he reported. He felt that this would be a no brainer for a dissmisal. He even mentioned how the state would try to squash it but most likely would fail. So much depends on the Judge though. I hope my attorney brings a few thousand pages of case law with him to back this motion up at the hearing.

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