Motions to Dismiss

Massachusetts Motion to Dismiss Criminal Charge Results

Chelsea District Court

The client was charged with Distribution of a Class C substance. On the day of the scheduled trial, the case was dismissed because the prosecutor was not ready. The prosecutor applied for another complaint on the same case. A notice to the client for a summons arraignment. The summons is returned as undeliverable as addressed. The prosecutor does not request a warrant. Approximately two years later, the client is arraigned on the new complaint. Boston, MA Criminal Defense Attorney Jeff Miller files a Motion to Dismiss based on a Speedy Trial violation.

Result: After hearing Motion to Dismiss is ALLOWED. Case dismissed.

Chelsea District Court

The police responded to a report of an accident in the city of Chelsea.  When they arrived, they spoke with the alleged victim.  The victim stated a white van had struck his car.  The victim spoke with the driver and the driver left without identifying himself.  The victim wrote down the license plate number.  No other identifying information about the driver was provided to the police.  The van was registered to the client.  The client was charged with leaving the scene of property damage.  Massachusetts Leaving the scene of property damage lawyer Jeff Miller draft a motion to dismiss.

Result:  On the day of the hearing, the Commonwealth concedes the motion.  Motion to Dismiss ALLOWED.  Case dismissed.

Chelsea District Court

The client was charged with Operating with a suspended license and as a Habitual Traffic Offender.  The client was stopped for driving with a suspended license.  The Officer charged him as a Habitual Traffic Offender.  Massachusetts Operating with a Suspended License Defense Attorney Jeff Miller reviews the discovery.  Attorney Miller prepares a Motion to Dismiss the Habitual Offender portion of the charge.  NOTE:  Operating with a suspended license carries a maximum penalty of 10 days in the House of Correction.  The same charge as a Habitual Offender carries a maximum sentence of 2 years in the House of Corrections.

Result:  On the day of the Motion to Dismiss, the Commonwealth concedes the Motion.  The client admits to sufficient facts for the Operating with a suspended license.  The client receives a short probationary period and no loss of license.

Boston Municipal Court
Roxbury Division

The client was arrested on a warrant for another case in another court.  While being arrested, police seized 10 crack rocks from the clients’ pocket.  The client is charged with Felony possession with intent to distribute a Class B substance and doing so within “1000 feet of a school.”  No school is referenced in the police report.  Also, in August 2012, Mass. Gen. Laws ch. 94C, Sec. 32J was amended to reduce the distance from 1000 feet to 300 feet.  Boston, MA Drug Defense Attorney Jeff Miller files a motion to dismiss the school zone count.

Result:  After hearing, Motion to Dismiss School Zone Count is ALLOWED.  The mandatory minimum sentence of two years in the House of Correction is off the table.

Chelsea District Court

The client was charged with Felony Distribution of a Class B substance, and doing so within 100 feet of a public park.  The Client was also charged with conspiracy to violate the drug laws.  The park zone violation carries a mandatory minimum sentence of two years in the House of Corrections.  The Commonwealth alleged an undercover police officer approached the client in an attempt to buy crack cocaine.  The undercover officer accompanied the client to his apartment.  Allegedly, the client made a phone call in an attempt to procure crack cocaine.  The client left the apartment stating he would return with the crack cocaine.  Outside the apartment, other undercover officers observed the client enter a car and exit a short-time later.  While walking back to the apartment, the client walked “within 100 feet of a public park.”  The client returned to the apartment, the point of distribution, and sold the crack cocaine to the undercover officer.  Boston Drug Defense Attorney Jeff Miller researches the law on park zone violations and conspiracy.  Attorney Miller files a Motion to Dismiss the park zone and conspiracy charges.

Result:  On the day of the hearing, the Prosecutor concedes the motion.  The client successfully avoids a mandatory minimum sentence of two years in the House of Corrections.

Chelsea District Court

The client was charged with Felony Breaking and entering in the nighttime with intent to commit a felony.  The Commonwealth alleged the client broke and entered the garage of the alleged victim and stole multiple items from the garage.  The homeowner noticed the lock to his garage door was broken.  He contacted police and showed them the broken lock.  He also informed them about the missing items.  Later in the day, the homeowner spoke to his neighbor.  The neighbor told the homeowner she had seen the defendant coming in and out of his years earlier in the day.  Massachusetts Breaking and Entering Lawyer Jeff Miller files a motion to dismiss arguing a lack of probable cause to charge the client with breaking and entering.

Result:  After argument, Motion to Dismiss is ALLOWED.

Chelsea District Court

The client was charged with three felony offenses, malicious destruction of property, possession of burglarious tools and receiving stolen property.  The Commonwealth alleged the following:  Police observed the client driving a motor scooter the wrong way down a one-way street.  The officer followed the client and approached him when he stopped a short-distance later.  When the officer approached the client, he observed the scooter was painted black and could see the original color was red (charge:  malicious destruction of property).  The officer also observed a screwdriver (charge:  possession of burglarious tools) in the tray under the handle bars.  The client informed the officer he had purchased the scooter from another man.  The client did not know the name of the seller.  The officer learned the scooter had been reported stolen a couple days before the incident (receiving stolen property).  Chelsea, MA Criminal Defense Attorney Jeff Miller prepares a motion to dismiss the malicious destruction of property charge and the possession of burglarious tools charge.

Result:  After hearing, motion to dismiss both counts ALLOWED for lack of probable cause.  The prosecutor declines to dismiss the receiving stolen property charge.  Attorney Miller prepares for trial.

Result:  On the day of trial, Receiving Stolen Property charge dismissed.

Woburn District Court

The client was charged with Leaving the Scene of Property Damage and Negligent Operation of a Motor Vehicle.  The government alleged the client was involved in an accident and left the scene of the accident without making himself known.  The client received a criminal citation in the mail.  The client returned the citation and requested a clerk’s hearing.  The client never received notice of the clerk’s hearing.  The client did receive a summons for arraignment.  Woburn, MA Criminal Defense Attorney Jeff Miller moves to dismiss the case prior to arraignment based not he fact the client had not received a clerk’s hearing.  Attorney Miller also notices a fatal defect in the citation.

Result:  Case dismissed prior to arraignment.  The charge will never appear on the client’s record.

Chelsea District Court

The client was charged with leaving the scene of property damage.  Police responded to an auto accident.  When they arrived, the police observed two cars with damage from the accident.  Only one driver, the alleged victim, was present when police arrived.  No driver of the second car was present when the police arrived.  Police ran the registration of the second car.  The car was registered to the client.  Chelsea, MA Criminal Defense Lawyer Jeff Miller files a discovery motion seeking information about how the police identified the client as the driver.  Massachusetts Criminal Defense Attorney Jeff Miller prepares a motion to dismiss the complaint focusing not he fact that the identification was insufficient to proceed with criminal charges.

Result:  On the day of the motion to dismiss hearing, the Government concedes the motion.  Case dismissed.

Chelsea District Court

The client was charged with Operating Under the Influence of Intoxicating Liquor.  The Police alleged they observed the client driving the wrong-way on a one-way street.  The Police stopped the client.  The client admitted to drinking about 8 beers.  The client had suffered a serious brain injury about ten years ago and was deemed incompetent.  The Commonwealth refused to dismiss the case.   Boston Motion to Dismiss Attorney Jeff Miller prepares a motion to dismiss in the interest of justice.

Result:  Motion to Dismiss ALLOWED in the interest of justice.

Boston Municipal Court
Roxbury Division 

The client was charged with threats to commit a crime, criminal harassment and a civil rights violation.  The prosecutor alleged the client made multiple phone calls to a business that included several threats.  Boston Criminal Defense Attorney Jeff Miller has client evaluated for competence to stand trial.  The client is found not competent.  The prosecutor exercises their right to keep the case open.  Attorney Jeff Miller files a motion to dismiss in the interest of justice.

Result:  After hearing, Motion to Dismiss ALLOWED, in the interest of justice.

Chelsea District Court

The client was charged with Felony Receiving a Stolen Motor Vehicle.  The Commonwealth alleged a police officer observed a group on five men in a car.  The officer queried the RMV and the plate indicated the car was reported stolen.  The officer approached two of the five individuals and arrested them both for receiving a stolen motor vehicle.  Chelsea Criminal Defense Lawyer Jeff Miller prepares a motion to dismiss for lack of probable cause.

Result:  After hearing, Motion to Dismiss is ALLOWED.  Case Dismissed. 

Chelsea District Court

The client was charged with Felony Offense of Carrying a Dangerous Weapon; to wit: knife.  The Client was stopped for a motor vehicle infraction.  A “very sharp thumb knife” was seized from the car.  The client was subsequently charged with Carrying a Dangerous Weapon.  Chelsea, MA Criminal Defense Attorney Jeff Miller analyzes the statute.  Attorney Miller prepares a motion to dismiss, arguing no crime has been committed.

Result:  On the day of the motion, the Commonwealth concedes the motion.  Motion to Dismiss ALLOWED.  Case Dismnissed.

Chelsea District Court

The client was charged with, among other things, breaking and entering a building in the nighttime with intent to commit a felony.  The police report alleged the client and another person were observed in the area of a “construction site.”  The site was the alleged building.  Chelsea, MA Criminal Dismissal Attorney Jeff Miller researches the law and files a DiBennedetto motion to dismiss based on the fact the allegations in the police were insufficient to find probable cause of a break, entry of that the “construction site” was a building within the meaning of the statute.

Result:  After hearing, Motion to Dismiss ALLOWED.

Chelsea District Court

The client is charged with Felony Malicious Destruction of Property.  The client’s boyfriend rented an apartment from the complaining witness.  During a visit to the apartment, the landlord noticed several holes in the wall.  The boyfriend stated the damage occurred during a fight with his girlfriend.  Massachusetts Felony Motion to Dismiss Criminal Charge Attorney Jeff Miller researches the law and drafts a motion to dismiss.

Result:  After a hearing on the motion, Motion to dismiss ALLOWED.  Case dismissed.

Chelsea District Court

The client is charged with Felony Breaking and Entering with the Intent to Commit a Felony and Resisting Arrest.  The police allege the client entered a house through a window.  When police arrive, they observe the client inside the house.  A police officer enters through the window and orders the defendant to his knees at gunpoint.  The client does not comply.  The police force compliance with a series of body strikes.  Revere, MA Motion to Dismiss Criminal Case Defense Attorney Jeff Miller files a motion to dismiss the resisting arrest charge.

Result:  On the day of the motion, The prosecutor moves to dismiss the resisting arrest charge.

Chelsea District Court

One count of the complaint charged the client with violation of a Restraining Order.  The client was arrested and transported to the police station.  The police alleged the client used his phone call to call the alleged victim for bail, thereby violating the no contact provision of the restraining order.  The client denied the allegation.  Boston, MA Motion to Dismiss Criminal Case Attorney Jeff Miller timely moves to preserve the booking video which would have captured the incident.  After numerous unsuccessful requests for the video, Attorney Miller files a motion to dismiss.

Result:  Motion to dismiss ALLOWED, charge dismissed with prejudice.

Chelsea District Court

The client is charged with, among other things, Attempt to Commit a Crime.  Chelsea, MA Motion to Dismiss Attorney Jeff Miller reviews the complaint and application for complaint and determines the complaint suffers a fatal defect, there is no overt act alleged in the complaint.  Attorney Miller files a motion to dismiss based on the fatal defect.

Result:  Motion to dismiss ALLOWED, case dismissed.

Chelsea District Court

The defendant is charged with Felony Assault and battery on a Pregnant Person, Felony Assault and Battery by means of a Dangerous Weapon; to wit: shod foot and Assault and Battery.  The government alleged the defendant was engaged in a fight with the alleged victim while knowing her to be pregnant.  During the course of the incident, the government alleged the defendant kicked the alleged victim.  Chelsea, MA Motion to Dismiss Attorney Jeff Miller files a motion to dismiss, arguing there was insufficient probable cause to establish the defendant knew the alleged victim was pregnant and no probable cause to believe the defendant was wearing shoes.  Motion to dismiss felony counts ALLOWED.  Prosecutor proceeds on misdemeanor charges. Attorney Miller prepares for trial.

Result:  Case dismissed on the day of trial.

Chelsea District Court

The defendant is charged with Felony Assault with a Dangerous Weapon; to wit: mini-sword.  The government alleged the defendant assaulted the alleged victim with a mini-sword.  The alleged victim stated he was involved in a verbal altercation with the defendant.  The alleged victim returned to his apartment and called police.  When police arrived, one officer ascended up the back staircase to the defendant’s apartment.  The officer observed the defendant walking down the steps with the mini-sword.  Chelsea, MA Criminal Defense Lawyer Jeff Miller files a motion to dismiss arguing no probable cause to find an attempted battery or an immediately threatened batter.

Result:  Prosecutor concedes motion to dismiss, case dismissed.

Boston Municipal Court
Central Division

The defendant is charged with Felony Possession of Burglarious Tools and Trespass.  At arraignment, defense counsel orally moves to preserve videotape evidence from parking garage where alleged incident occurred.  The arraignment Judge allows the motion.  The government fails to notify the parking garage and video evidence is lost.  Boston, MA Failure to Preserve Evidence Defense Lawyer Jeff Miller files a motion to dismiss based on the government’s failure to preserve the video.  The motion Judge denies motion to dismiss.  Attorney Miller styles motion to reflect an option for the Judge to exclude any references to the any observations that may have been preserved on the video.  The motion Judge ALLOWS the alternative relief.

Result:  Government moves to dismiss possession of burglarious tools.

Chelsea District Court

The defendant is charged with soliciting sex for a fee.  The government alleged police observed the defendant enter a car.  This occurred in an area known for prostitution.  After the defendant exited the car, the police stopped the car.  The “John” stated the defendant asked him for a ride and offered him oral sex.  Massachusetts Motion to Dismiss Criminal Charge Defense Attorney Jeff Miller files a motion to dismiss based on fact no offer was made for money.

Result:  Government concedes the motion and dismisses the case.

Boston Municipal Court
Central Division

The defendant is charged with using a false name to provide a driver’s license.  The government alleged the defendant had provided a false name to the Registry of Motor Vehicles for the purpose of obtaining a driver’s license.  Boston Municipal Court Motion to Dismiss Attorney Jeff Miller conferences with prosecutor who refuses to dismiss based on double jeopardy.  Attorney Miller files motion to dismiss.

Result:  On the day of motion, prosecutor concedes the motion to dismiss.  Case dismissed.

Boston Municipal Court
Central Division

The defendant is charged with felony breaking and entering and felony possession of burglarious tools.  The government alleged an eyewitness observed the defendant enter an apartment building.  The police alleged they observed the defendant’s subsequent movements inside the building on a surveillance video.  Boston Municipal Court Motion to Dismiss Attorney Jeff Miller files a discovery motion for disclosure of the video.  The prosecutor provides a number of still photos but no video.  Attorney Miller files a motion to dismiss based on false information in the police report that could be documented.

Result:  Prosecutor concedes the motion and moves to dismiss the case.

Chelsea District Court

The defendant is charged with Felony Distribution of a Class A substance and doing so within 1000 feet of a school.  The government alleged police agents were involved in an undercover operation for several months.  On the day of the arrest, the defendant allegedly distributed a drug to another person who in turn transferred the drug to an undercover officer.  Attorney Miller investigates the case and finds the school is no longer operable.  Boston School Zone Dismissal Defense Attorney Jeff Miller files a motion to dismiss the school zone count.  The motion Judge ALLOWS the motion.  Attorney Miller files a motion to suppress.  After multiple motion dates the prosecutor requests another continuance. Attorney Miller objects.

Result:  Case dismissed with prejudice.

Boston Municipal Court
Central Division

The defendant is charged with Leaving the Scene of Property Damage and Negligent Operation of a Motor Vehicle.  The defendant was not arrested at the scene.  The police sent the defendant a summons in the mail.  Boston Municipal Court Motion to Dismiss Lawyer Jeff Miller investigates and discovers the citation did not comply with the “no-fix” statute.  Attorney Miller files a motion to dismiss.

Result:  Prosecutor concedes the motion to dismiss, case dismissed.

Boston Municipal Court
Dorchester Division

The defendant is charged with attempt to commit a crime.  The government alleged they received a call from a citizen in the Dorchester section of Boston.  The citizen reported hearing her car alarm sounding.  When she looked out the window, she observed the defendant about 10-15 feet from her car.  Dorchester, MA Motion to Dismiss Defense Lawyer Jeff Miller files a motion to dismiss stating insufficient probable cause to charge the defendant.

Result:  After hearing, motion to dismiss ALLOWED.  Case dismissed.

Chelsea District Court

The defendant was charged with Felony Witness Intimidation.  The government alleged the defendant threatened an acquaintance and warned him against testifying in an upcoming child custody hearing.  Attorney Miller researches the statute and files a motion to dismiss.  Boston, MA Motion to Dismiss Witness Intimidation Charge Defense Attorney Jeff Miller argues the statute only applies to interference with a criminal proceeding.  Child custody proceedings occur in the probate court.

Result:  After hearing, Motion to dismiss ALLOWED.

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