I’ve had several questions recently about how to handle cases in which the defendant was charged with DWI, failed to appear, remained absent for several years, then reappeared. Often, the arresting officer has retired, moved, or can’t remember the case well enough to testify. The defendant wants the case reinstated and wants to plead not guilty, hoping that the state will be forced to dismiss. The state isn’t able to proceed on the DWI but doesn’t want the defendant to benefit from his failure to appear.
The most common issues that arise in this situation include whether the state is required to reinstate the case, whether the state may attempt to negotiate a plea without disclosing the officer’s unavailability, and whether the state may charge the defendant with failure to appear. I answer those questions in this paper. Although this situation seems to arise most often with DWIs, and there are some DWI-specific aspects to the paper, much of it is relevant to any case in which a defendant disappears, and then reappears.
I should add that the paper is much better as a result of input from several of my colleagues. And of course, I welcome feedback, via email or blog comments, from readers who have an opinion about the issues addressed in the paper.
Interestingly enough, in a recent case in my County, Buncombe, saw a DA file a Failure to appear charge on a DWI/DWLR charge from 1995.
The situation was a attorney motioned for a trial in the case, the officer admitted to the ADA and Atty that he had no recollection of the arrest, but the case was never called, when the defendant’s name was called it was not for a trial in District Court, despite the motion being filed, the FTA charge was announced and a plea asked for on that charge.
The attorney motioned for a dismissal as the officer had left the courtroom, but the judge did not rule on the motion as it was unclear who asked for the continuance.
A question does arise out of this, “if” the charge (per the ADA’s bulleting from Oct, 2010) is a “new” offense, what effect does a Dismissal with Leave have on such a charge?
It would seem the DA is trying to both Dismiss the Charges, then gain an additional charge while the original charges are in abeyance, if the charge is not “active” and must be reinstated upon appearance, then how can additional charges arise?
How can that then be a “continuing offense”?
I have a case involving the facts described above. I would love to read the more detailed treatment in the paper but the link no longer works. If the author or an administrator could revive the link, that would be great!