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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 33424
Experience:  Began practicing law in 1992
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What is the best way to request a pre-court dismissal of a

Customer Question

What is the best way to request a pre-court dismissal of a Class A Misdemeanor charge of Unlawful carry of a weapon that resulted from a Class C Public intoxication charge? From what I gather, the Class A charge holds no weight being that the firearm was inside the vehicle and in compliance with Texas state laws.
Submitted: 6 months ago.
Category: Legal
Expert:  Dwayne B. replied 6 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

Expert:  Dwayne B. replied 6 months ago.

What do you mean it was "in compliance with Texas state laws"? In what way?

Customer: replied 6 months ago.
Texas state law states that a person commits the offense of Unlawful carry of a weapon if engaging in any criminal activity other than a Class C misdemeanor, I.E, Public intoxication.The firearm was not in plain view, I'm within legal right to carry, no other crime was committed and no proof of intoxication was found prior to the arrest.
Expert:  Dwayne B. replied 6 months ago.

That's not the only way to violate the statute though.

The statute states:

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster;

What that basically means is that a person can't carry a weapon in the car with him unless he has a CCL. If he has the gun in the trunk, it isn't considered about his person.

Expert:  Dwayne B. replied 6 months ago.

However, the only way to handle a case is to file a Motion to Dismiss or a Motion to Quash the Information (and Information is what is filed in Texas to bring misdemeanor charges, it's like an indictment but for misdemeanors).

Expert:  Dwayne B. replied 6 months ago.

Those are the only way to get a case dismissed before trial. He can also file a Motion to Suppress if there was something wrong with the search.

Expert:  Dwayne B. replied 6 months ago.

You can read the entire body of the statute at Sec. 46.02 at http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.46.htm

The definitions are in the first section at that link.

Customer: replied 6 months ago.
Wouldn't that contradict the castle doctrine where it authorizes the carry of a personal firearm inside your vehicle?
Expert:  Dwayne B. replied 6 months ago.

I'm not sure that the Castle doctrine applies to vehicles in the first place in Texas but it definitely doesn't as to this particular issue since there is a statute on point.

Expert:  Dwayne B. replied 6 months ago.

The code has changed repeatedly over the years but the gist of it has always been the same.

Expert:  Dwayne B. replied 6 months ago.

Was the person in the car when they were arrested for PI?

Customer: replied 6 months ago.
Expert:  Dwayne B. replied 6 months ago.

I was asking if the person was in the car when they were arrested for PI? If they weren't, then there is a possibility that you could suppress the search of the car.

Customer: replied 6 months ago.
The vehicle struck a telephone pole which resulted in police and medical response. The person charged with P I was knocked unconscious from the impact of the wreck. Once he became responsive he was told by LEO that if he refused medical transport he would be placed under arrest and taken into custody. No field sobriety or breathalyzer test was administered.
Expert:  Dwayne B. replied 6 months ago.

Any idea as to why they didn't charge him with a DWI? Or was he a passenger?

Customer: replied 6 months ago.
He was the passenger of the vehicle
Expert:  Dwayne B. replied 6 months ago.

That makes sense as to why they didn't charge him with a DWI then.

Any idea on why he got the UCW charge and not the driver?

Customer: replied 6 months ago.
The passenger is the owner of the vehicle as well as the owner of the firearm.
Expert:  Dwayne B. replied 6 months ago.

Okay, that answers all of my questions.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 6 months ago.
Expert:  Dwayne B. replied 6 months ago.

Did you have additional questions? You originally asked what was the best way to request a pre-court dismissal and I explained that, a Motion to Dismiss or a Motion to Quash the Information. If you have any follow up questions I'd be glad to address them.