Another Odd Sort of Victory


Robert Guest blogs about three reasons cases get dismissed. Today one of my clients had his case dismissed for all three reasons — the state could not prove the case at trial, nobody really cared if he did it or not, and someone else did it.

It was a typical weed-in-the-car case, so the State really couldn’t prove that my client knowingly possessed the marijuana. That in itself wouldn’t have stopped the prosecution — the State often tries weed-in-the-car cases despite the lack of evidence of knowing possession.

It was a little marijuana case, so nobody really cared if he had done it or not. Typical malum prohibidum offense. That doesn’t stop the State from prosecuting these cases either.

My client had passed a drug test immediately after his arrest, however, and we knew who had left the marijuana in the car, though. My client had even been able to get him on video admitting that he left the marijuana in the car.

We had a winning case at trial even without the video. If the video had been introduced into evidence (it probably would have been, under the “admissions against interest” exception to the hearsay rule), it would have been a slam dunk. Until yesterday, I hadn’t revealed to the prosecutor any of our side of the case.

Why not? The drug test, combined with the video, would have resulted in an easy dismissal. But I had one minor and one major reason not to seek an early dismissal.

The major reason is this: according to State v. Beam, which I blogged about here, a dismissed misdemeanor case cannot generally be expunged until the statute of limitations has expired — two years after the arrest. An acquittal, however, can be expunged immediately. So if we took the case to trial and won, the client would have had a clear record in a couple of months, but a dismissal might remain on his record for two years before we could seek expunction.

There’s an exception to the requirement that limitations expire before an expunction can be filed, though. A dismissed case can be expunged if the court handling the expunction (a civil district court)

finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense

When I went to court for the client yesterday, there was a new chief prosecutor (in Harris County the prosecutors in misdemeanor courts move around every few months) who was clearly interested in disposing of the case. I explained that I thought I could convince him to dismiss the case, but that I didn’t want to because of the expunction problem. I told him that I would explain the case to him if he would agree to dismiss the case because of a lack of probable cause.

At this point he could have messed with my client by dismissing the case outright, but instead he agreed. He started filling out the nolle (dismissal) form, and I began to explain why my client was innocent. He wrote on the form that there was no PC.

Going to trial would have been a gamble — it always is. There’s always a chance that a jury will do something entirely unpredictable. In this case, getting a dismissal was a gamble as well. It remains to be seen whether my choice worked. We’ll find out within a few months whether a civil district court will agree with me that the dismissal in this case justifies immediate expunction.

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