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Can’t Pay Your Fine? Try a Penal Code 1385 Motion to Dismiss.

Posted on July 13th, 2010 Christopher Dort 5 comments

If you are going to court without any defense, and you need an argument to get your misdemeanor or traffic court case dismissed, use California Penal Code section 1385. No mater what the facts are, a defendant can ask a judge to dismiss a case or suspend a fine in the “Interests of Justice” using PC 1385.

Penal Code section 1385 is the law that allows a judge to use discretionary power to make a fair ruling. It is a way to ask the judge for what is technically called “Equitable Relief”. Lawyers use a PC 1385 request or “Motion”, to get rid of traffic citations, misdemeanor cases, and even felony strike charges. It is a common motion - or request to the judge.

And get this: We made an EZ Form for the Motion! Here is how it works:

California Penal Code section 1385 states:
```
(a) The judge or magistrate may, either of his or her own
motion or upon the application of the prosecuting attorney, and in
furtherance of justice, order an action to be dismissed.  The reasons
for the dismissal must be set forth in an order entered upon the
minutes. 
```
This statute allows a Judge to dismiss a case “in the interests of justice”, but the statute does not describe what factors qualify as “the interests of justice”. It’s a very subjective standard, and this means if you can talk the judge into a PC 1385 dismissal, it will work.

Just talk the judge into it. That’s all you have to do.

A Penal Code section 1385 dismissal is most often used to get rid of overlapping charges, charges that just don’t make sense, or as in one example we recently observed - when a defendant is on active military duty and shipping to a combat zone.

A defendant can make a section 1385 request for a dismissal, or even to delete or suspend a fine, verbally or in writing.

Technically, the statute does not allow a Defendant to make the motion. It states the judge or the prosecuting attorney can make the motion. But nearly all judges in real courtrooms will listen to a request.

[Practice Tip: If you run into a judge that gives you a hard time, you can make a motion for the judge to make a PC1385 Motion.]

You can make a 1385 motion orally at a court date by telling the judge:

Your honor, I’d like to ask for a Motion for dismissal in the interests of justice under Penal Code 1385 for the following reasons: [insert reasons].

But you should do it in writing and verbally. I strongly recommend that you use the Penal Code section 1385 Motion form I created for Self Help Use. But you can write your own motion if you wish.

You can download the fillable “.pdf” Motion Form with Instructions now for $19.99 at my www.DortLaw.com Legal Forms Store:

http://store.payloadz.com/go?id=826938

A Penal Code section 1385 motion will not always work, but it will give you an argument when there is nothing else to hang your coat on. It works great when there is a special circumstance or unique hardship you can point out. Death, loss of job, successful drug recovery, etc.

It can be done - should be done - in just about every traffic or criminal case and on top of what ever other arguments you have.

-Christopher Dort, Esq.

Questions? Email info@dortlaw.com

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Going to Court, Traffic Court Forms, Traffic Court Trials 1385, court, defense, dimiss, fine, form, judge, legal forms, motion, penal code
5 Responses to “Can’t Pay Your Fine? Try a Penal Code 1385 Motion to Dismiss.”
1. Peyton Farquhar January 5th, 2010 at 3:45 am
  
  Just used PC § 1385 myself today during my traffic citation arraignment, and, I have to say to anyone reading this blog, don’t try it in Stepford, er, I mean Orange County because it doesn’t fly. The judge won’t even hear you out and he will deny the motion to dismiss.
  
  To describe my arraignment as slick and underhanded does not even begin to scratch the surface. The judge completely glossed over my in propria persona recitations of case law and rules of court.
  
  Read more on my site. I’m chronicling my odyssey with the cottage industry of revenue generation via arbitrary tax assessment on Orange county drivers otherwise known as traffic court.
2. Christopher Dort January 5th, 2010 at 6:10 pm
  
  Judge ignored PC 1385 motion? This is a good comment because it gives me a chance to explain a little about procedure that may save people a lot of trouble. Don’t confuse an Arraignment with a Trial. Motions should be made at the Trial, not the Arraignment.
  
  Generally, judges do not hear motions, including Penal Code section 1385 motions, at an Arraignment. It’s just not the right time, with limited exceptions. Arraignments are not the point in the process where the judge decides anything. He/she is not prepared to hear motions or take evidence at an Arraignment and does not have a full file on the case, nor input from an officer or prosecutor (who has a right to be present when the case facts are litigated).
  
  Arraignments serve only one purpose in criminal and traffic court procedure - to officially enter a Plea for the defendant. Nothing else. No taking of evidence, no recitation of law, no arguments or objections.
  
  There are exceptions if the defendant is in custody. There can be motions at the arraignment for bail, for release, for a probation evaluation, to give the defendant clothes, etc. But generally, no motions that deal witht he substance of the case at the Arraignment.
  
  In most cases, there are only 3 possible actions at a misdemeanor or traffic infraction Arraignment:
  
  1) Not Guilty plea entered, set trial or pre trial date;
  2) Guilty plea entered, defendant sentenced; or
  3) Arraignment continued and no plea entered.
  
  If you want to make a motion in a case, such as a penal code section 1385 motion to dismiss “in the interests of justice”, the best option is to plead not guilty at the Arraignment, and set the case for trial. Then, the best practice would be to have a written motion with a list of specific reasons why dismissing the case would be “in the interests of justice” as the code states.
  
  But the motion can be made orally before the trial as well. My recommendation is to have 1 specific reason to tell the judge it truly is in the best interest of justice to dismiss the case. I’d recommend something like: “It is in the best interest of justice to dismiss this case your honor because I was driving my brother’s car and I had no idea the windows were tinted beyond what the law allowed. I relied on my brother’s representation that the car was safe and legal, and this citation is more justly severed on the owner of the car, not me.”
  
  There are a number of motions that should be made at nearly all traffic court trials. Usually, the motions should be made, one after the other, right before the trial starts. They can be introduced by saying: “Your honor I need to make a pretrial motion”. State your motion, why it should be granted, and ask the court for the ruling you want. “I ask that the court dismiss in the interest of justice”, etc.
  
  Pre trial motions are also known as “motions in limine” and are common in all trials.
  
  I would recommend the following motions be considered for all trials: 1) PC 1385 motion to dismiss; 2) motion to exclude expert opinion testimony from non expert officer; 3) motion to exclude statements on citation as hearsay; 4) motion to suppress evidence after illegal detention (Penal Code section 1538.5).
  
  I am going to write a set of pdf forms for these motions and will send you a free copy.
3. William D Howard April 30th, 2010 at 4:34 am
  
  pdf forms motions to dismiss Thank You William D Howard
4. Kathryn July 21st, 2010 at 12:45 am
  
  I have been seeking guidance and assistance on a horrifying and erroneous accusation made in a “Declaration in Support of an Arrest Warrant” requested by detective “[Barney Fieph from Mayburry]”
  
  I have never been cited or arrested for the allegations. The harmful and desructfull allegations are (I was told) going to be dismissed by referance to the 1385 code.
  
  However, nothing is being done to help me. These are fraudulent accusations made by the above person, the warrant is issued.
  
  Also, the Encinitas Sherriff’s dept commonly falsly charges persons with felony criminal cases, then adds the number to a roster which they hold for”number of felony arrests for that given year.”
  
  It does not state whether or not they are legal arrests, “JUST FELONY ARRESTS”
  
  These detectives and Sherriff’s receive accoldades for this performance, in the meantime, lives are detroyed and innocent people are victim to an unconstitutional and corrupt game which has no end.
  
  What can I do in this situation?
  
  Please contact me at; orionzstars@live.com
  
  Regards,
  
  Kathryn
5. Christopher Dort July 22nd, 2010 at 6:32 pm
  
  Kathryn,
  
  This is a unique, but very cool comment. I’ll try to give you a real response.
  
  Back in 1996, I was a judicial research clerk for a Superior Court. My job was to write research memos for the judges. I had a little office in the back of a law library, that was private, but the judges used to come in, move me over, and work on signing search and arrest warrants. During that time I learned a lot about how arrest warrants are really issued. Here is how it works for felonies:
  
  A police officer must write out and sign a “declaration in support” of the warrant, and sign it under penalty of perjury. If a police officer lies on the declaration, they can go to prison. Then, a judge takes the declaration and reviews it for accuracy, and facts. Sometimes, a judge will call the officer in and ask questions. If the judge approves the declaration, the judge creates the warrant. The police officer does not create the warrant, they just apply for it.
  
  When a warrant is issued, it does not create “Charges”. And police officers do not charge people with crimes. Many people think they do, but Officers are not in control of what a person is charged with. Instead, the police officers can only “Recommend Charges” to the District Attorney, and it is the District Attorney that charges people - usually by filing a complaint. A district attorney may also create charges by getting them approved by a Grand Jury, but police officers do not do that part of a criminal case. They merely make recommendations.
  
  So allegations in a Declaration Supporting a warrant application do not mean there are charges. You cannot get “allegations” in a warrant declaration dismissed. You cannot do it under any statute, including PC 1385. It’s just not possible.
  
  Now you can get allegations filed by the district attorney in a criminal complaint dismissed, but not claims made by an officer in a declaration. Statements made in a declaration for a warrant are not charges. Did I say that already?
  
  Now, if there is a warrant, there may also be charges pending which were filed by the DA. But they were not created by the officer. And if there are charges pending, you have to deal with them in some way.
  
  If you now there is a warrant for your arrest, the correct thing to do is go in voluntarily and turn yourself in. Then you can start dealing with the charges in court.
  
  Everyone charged with a crime by a district attorney are presumed innocent. You are not guilty of anything unless you plead guilty to charges in court, or unless you lose a jury trial.
  
  It is definitely true that not everyone arrested is guilty. Innocent people get arrested every day. But dont confuse an arrest with a conviction. They are totally different things.
  
  If there are charges against you in court that are false, you need to deal with them.
  
  They way to beat criminal charges is by having a trial and winning. The government has the burden of proof to show that you are guilty Beyond a Reasonable Doubt, and if they cannot prove up the charges, you will be acquitted.
  
  If you have prof early on that the charges pending in court are false, usually an attorney can take that proof to the prosecutor (DA) early on in a case and ask that the charges be dismissed without the wasted time of a trial. If the charges pending in court are truly baseless or false, and it can be shown early on, most prosecutors will dismiss the case quickly, because they do not like to lose trials.
  
  So what can you do if a police officer lies on a Declaration for a Warrant? Not much. You have to go to court and deal with the case.
  
  But I would also say this - you should not make assumptions about what a cop wrote in a declaration unless you have read it yourself. And here, it sounds like you have not actually seen the statements that you are worried about. Dont make assumptions here.
  
  Here is my recommendation: In San Diego County you can look up warrant on the Sheriff’s Web Site. Take a look and see if there is a warrant, and how much the bail is. That site will also tell you the charges.
  
  If there is a warrant, you should hire an attorney to start working on the case NOW. Like right now.
  
  If you cannot hire an attorney, you should go to the Sheriff’s Office and turn yourself in. If the bail is set at 10,000 or more, you probably would also want to contact a bail bond company in advance so that if you are taken into custody you can get out of jail quick.
  
  If you cannot hire a Private Criminal Defense Attorney on your own, you can ask for a public defender once you are in court. You cannot get a public defender in advance of court.
  
  Once in court, at attorney can challenge the warrant (and the evidence that comes from it) by filing a Penal Code section 1538.5 motion to quash the warrant, but this is not something you can do without an attorney or public defender, simply because it is very complicated.
  
  If you can show the officer lied on the declaration for the warrant during a PC 1538.5 hearing, the judge will quash the warrant. If you have proof the officer lied under penalty of perjury, (like a Mark Furman style recording), you should take it to the FBI, or State Attorney General Office, who are the agencies that investigates that sort of thing.
  
  And now you can say someone tried to help you understand the problem!
  
  Oh - one more thing - police do not need to prove you are guilty to arrest you. They just need “Probable Cause” to believe a crime was committed and that the arrestee is responsible. That is a lower standard than the “reasonable doubt” required for a criminal conviction.
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