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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
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Experience:  Licensed Texas General Practice Attorney
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I received a summons to appear in court for an arraingment

Resolved Question:

I received a summons to appear in court for an arraingment for a citiation in NM for phone harrassment. I never received any notice of this citation until I received a summons in court. I did not sign or talk with the police officer. Will a motion to dismiss for not being properly served be granted to me. The citiation is criminal I believe. Also, the police officer statement indicated that I was arrested and that he couldn't get a hold of me.
Submitted: 1 year ago.
Category: Legal
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Failure of or defects in service are not valid ways of dismissing a case. That is, it does not relate to whether or not the crime itself was actually committed, nor to gathering of the evidence, etc... It could be the basis for challenging a matter based on statute of limitations, but a court will not dismiss a case outright because you did not have notice of the citation. Furthermore, it's sometimes the case that the first time that you have notice of a citation is when you receive the summons. A citation is drafted by the police when they receive a complaint that they determine to have probable cause. Sometimes you are present (such as if you're speeding, etc... and they pull you over and give you the citation), but in certain instances such as this, you would not be. In any event, the summons to the arraignment would be notice enough under the 5th and 14th amendment to comply with due process, since they're not trying you in abstentia (that is, without you being present).

ScottyMacEsq :

So in any event, this is not going stand a chance of getting it dismissed on those grounds.

ScottyMacEsq :

It's possible that you could have other evidentiary or substantive grounds to get it dismissed, but not on those procedural grounds since they don't relate to the factual or evidentiary matters of the case itself.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it is the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer: What about the statement for probable cause that indicated I was arrested. I was not arrested. A motion to dismiss based on false statements by the police officer. This is not a traffic ticket it is criminal offense if charged.
ScottyMacEsq :

You can try to dismiss based on evidentiary grounds or in a probable cause hearing (which typically come after the arraignment). The arraignment itself is where the charges are read and you're asked how you plead. Evidence, procedural matters, etc... are not considered at all in this hearing. The judge only wants to hear guilty, not guilty, or no contest. You can plead not guilty and seek to have this dismissed in a motion to dismiss based on lack of evidence, lack of probable cause, etc..., but judges almost never would entertain such a motion in an arraignment. Those would require separate hearings after that fact.

ScottyMacEsq :

So even if it was a case of mistaken identity, or complete fabrications in a document, etc... you would still need to plead not guilty and handle those other matters in a separate hearing.

Customer: I have been arraigned and pleaded not guilty. I have a pre-trial this morning and want to present a motion to dismiss.
ScottyMacEsq :

My apologies. You specifically said "I received a summons to appear in court for an arraingment for a citiation in NM for phone harrassment." so I thought that you were pre-arraignment at this point in the process.

ScottyMacEsq :

As for a motion to dismiss, it's possible that this is the case, in that the report and other supporting document could indicate errors that would lead to an inference that there is not probable cause to continue, (i.e. A probable cause hearing).

ScottyMacEsq :

You could present such a motion, but I would be surprised if the court would grant it.

ScottyMacEsq :

Again, since it does not relate to the underlying "crime" or the evidence collected, but rather what happened after the report (and since an "arrest" is not a necessary element in the prosecution of a crime) it's not something that would per se require that the case be dropped.

ScottyMacEsq :

Now it's possible that any evidence that they acquired after the supposed "arrest" that never happened could be suppressed.

Customer: sorry for that... I am a little nervous . I have a NM State License pending I cannot have a felony charge. I spoke with an attorney and he said I was not properly served because I did not sign the ticket / citation and therefore was not properly served.
ScottyMacEsq :

If you had a failure to appear charge, that could be a defense. But a failure to appear is different than the underlying "crime" that you're being charged with. For instance, failure to appear means that you had notice of a hearing, and did not show up. The notice is a required element of the crime itself, so it could be dismissed if you did not have notice by being properly served. But if you have "shown up" to the hearing, you have "appeared" and actually have waived service requirements. Only if there was a motion to quash an arrest warrant, etc... prior to appearing in an arraignment would the failure of service be relevant.

ScottyMacEsq, Attorney
Category: Legal
Satisfied Customers: 11933
Experience: Licensed Texas General Practice Attorney
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