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Is The Motion to Dismiss The Same as a Motion to Suppress?


A motion to dismiss is completely different than a motion to suppress. People ask about the motion to dismiss all of the time, and they think that just because there is really crappy evidence, they are going to go in and make a motion to dismiss the charges. However, there is no such thing as a motion to dismiss the charges. There are only two grounds for a motion to dismiss. One is failure to have the proper jurisdiction in which the court will be trying the case. So, if it’s a California case and they are trying it in Illinois, then they have to have the proper jurisdiction. Illinois doesn’t have any jurisdiction to try a California case, with the very limited exception of interstate conspiracy. If that were the case, then they would dismiss it, but then they would just go to the appropriate jurisdiction.

The other is a motion to dismiss an indictment that’s filed because the grounds for dismissing that are not based on insufficient evidence. The only motion is that it does not state a cause of action, meaning that it doesn’t specifically delineate what you are being charged with. In other words, if you did something wrong, such as reckless driving, then the cop has to put down the specific act of recklessness, whether it’s excessive speeding, doing a donut, or popping a wheelie on a motorcycle. These motions to dismiss really don’t give you much, because even if you get an indictment dismissed, they are just going to turn around and re-indict you.

How Can a Motion to Suppress Evidence Help or Hurt Someone’s Criminal Case?

Having been a prosecutor for five years, I know that there are certain cases in which you feel okay with the defense attorney filing a motion to suppress. If they win, then the case is dismissed, and that’s fine. But if they lose, then the state’s attorney is not going to negotiate with them further, and the defendant will be stuck with a non-probationable case. If an officer conducts a bad stop and finds drugs, the state’s attorney might say, “Look, I am not sure whether or not that’s your client’s stuff, so this is what I’ll do. If you don’t run the motion to suppress, I will give him probation and reduce the charge to make sure that he doesn’t go to jail.” That’s a tough one, because your client’s saying, “Look, I didn’t do anything wrong” and I may or may not agree with him, but he is the one rolling the dice. So, it’s a tactical trial decision that an experienced attorney would make, and not some guy just out of law school who says, “Yes, it looks to me like good ground,” and decides to try to beat it. The state’s attorney would probably chuckle, knowing that the judge in front of them never grants them anyway and that the defendant will end up having to go to prison.

What is The Process Associated With Filing a Motion to Suppress Evidence?

In a criminal or misdemeanor felony case, the first thing you do is file an appearance and request discovery, including police reports and any other evidence they intend to use against you. After you review that evidence, you talk to your client and file at the first pre-trial motion or the second pre-trial date. It has to be filed before trial. A lot of judges will say, “State, I am going to order you to turn over all your evidence for discovery within seven days, and the defense will have 14 days. Motions must be filed within 28 days or they will be barred from further proceedings.” If you blow that date, then you’ve harmed your client’s case.

You should file it as early as you can after you have reviewed all the discovery, talked to your client and made the determination that there is solid ground for it. Every case is unique, but you have to file well before the trial because it is going to limit what evidence comes in to trial.

For more information on Motion To Dismiss & Motion To Suppress, a free initial consultation is your best next step. Get the information and legal answers you’re seeking by calling (847) 244-4636 today.

Barry Boches, Esq.

Get your questions answered - call me for your free phone consultation (847) 244-4636.

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