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Motion to Dismiss : C4 Motion

Motion to Dismiss : C4 Motion

150 150 Cohen, Bradshaw, Rothstein & Klein

DEFENDANT, by and through his undersigned attorney and pursuant to Rule 3.190(c)(4), Washington DC Rules of Criminal Procedure, hereby moves this Honorable Court to dismiss the Information filed in the above-captioned cause.  As grounds for this Motion, Defendant states as follows:

That, for the sole limited purpose of legal argument concerning the instant Motion to Dismiss, the material facts produced in the State’s discovery will not be disputed;

That the material undisputed facts alleged by the State of Washington DC are in the Discovery provided by the State of Washington DC, including Defendant’s Arrest and Booking Report, and are set forth as follows:

  1. On March 26, 2013, at approximately 12:26 a.m., Defendant was stopped by Officer K.M. Custer of the Washington DC Sheriff’s Office.
  2. The stop occurred at 1700 Southside Drive, Washington DC, Washington DC, Washington DC.
  3. 1700 Southside Drive is an apartment complex known as the “Pines at Southside” (hereinafter referred to as Apartment Complex).
  4. Officer Custer alleges that, at the time of the stop, Defendant was found in a Suzuki Sidekick backing out of a parking space within the Apartment Complex.
  5. The State of Washington DC alleges that, at all times material, Defendant’s driver’s license was revoked or suspended, and/or that Defendant was classified as a Habitual Traffic Offender.
  6. As a result of the foregoing, the State of Washington DC has charged Defendant in a one-count Information with Driving While License Suspended or Revoked- Felony Habitual Offender, a violation of §322.34(5), Washington DC Statutes.
  7. Washington DC Statutes §322.34(5) provides that “Any person whose driver’s license has been revoked pursuant to s. 322.264 (habitual offender) and who drives any motor vehicle upon the highways of this state while such license is revoked is guilty of a felony of the third degree . . .”
  8. Washington DC Statutes §322.01(39) defines “street or highway” as “the entire width between the boundary lines of a way or place if any part of that way or place is open to public use for purposes of vehicular traffic” (emphasis added).
  9. In order for the State of Washington DC to prove that Defendant committed a violation of §322.34(5), the State must establish that the charged conduct was within a “way or place” that was “open to public use.”
  10. Black’s Law Dictionary (Second Edition) defines the term “public” to mean “that pertaining to a state, nation, or whole community” (emphasis added).  The Merriam-Webster Dictionary defines the term public as “of, relating to, or affecting all the people or the whole area of a nation or state” (emphasis added).
  11. At the time of the stop in question, entry into the Apartment Complex was monitored and regulated by security personnel employed by the Apartment Complex.
  12. Only residents, their authorized guests, and other specifically authorized persons were permitted to enter the Apartment Complex.
  13. To the extent that only tenants and other authorized persons were permitted entry into the Apartment Complex, the location in question was not open to “public” use.
  14. Authorization for entry by a limited and specifically identified class of persons in no way constitutes the “whole community” or “all the people” of the community.
  15. In Galston v. State, 943 So.2d 968 (Fla. 5th DCA 2006), the Fifth District Court of Appeal reversed a trial court’s denial of a Motion to Dismiss, where the undisputed evidence established that the road in question was closed to the public.
  16. As a result of the foregoing, Defendant is entitled to a dismissal in the above-captioned cause as a matter of law.  Furthermore, it is axiomatic that penal statutes be construed in terms of their ordinary, literal meaning, and strictly in favor the accused.  If the State of Washington DC intended to punish similarly situated persons for alleged driving on ways or places not open to public use, the statute should have so provided.

WHEREFORE, Defendant requests that this Honorable Court enter an Order dismissing the above-captioned cause.

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