The 995 motion to dismiss in California – what is it?

by Mike on September 8, 2017

The 995 motion to dismiss in California – what is it?

The 995 motion to dismiss can be made in any case which involves a felony charge; this includes charges of a felony and a misdemeanour. If you are facing a felony charge in California, your DUI lawyer, or criminal attorney will be able to advise you about when and how a 995 motion can be made.

Here is some basic information about making a 995 motion to dismiss. This should make you more aware of when this motion applies.

What is the 995 motion and why is it used?

The California Penal Code 995 motion is used when a case has been referred to court for trial and the defense argues that the decision to refer the case for trial was not legal, or was made without there being probable cause.

When is the motion usually made?

Once a charge has been made against a defendant, part of the court process is for a pre-trial to take place. It’s at this pre-trial that the judge makes a decision regarding whether the evidence presented is sufficient for the case to be referred for trial. If the judge decides that the case should be referred, the defense can make a motion to dismiss. In order for this motion to be successful the defense needs to be able to prove that the decision was not made legally or that there was not sufficient probable cause for the case to be referred to trial.

If the decision to refer the case to court is not legal

During a pre-trial, the defendant is afforded certain rights. These rights include being represented by an attorney and calling witnesses to testify. If any of these rights are breached, the defense can argue that the case should never have been referred for trial.

If there is no probable cause to refer the case to trial

A defendant can only be found guilty at the end of the actual trial, but the sufficiency of evidence has to be determined at the pre-trial. This means that the judge needs to decide that the evidence provided by the prosecution is sufficient to enable a guilty verdict to be possible. The case should only be referred to court if the evidence provided is sufficient.

When a 995 motion to dismiss is made

The motion is intended to prevent a case going to court that should not be there. The idea is to ensure that the judge’s original decision is re-examined. The hearing that is held once the motion has been made lasts for just a couple of hours. On most occasions, the decision on whether to grant the motion is given at this time. But, the judge can delay making the decision, if necessary.

Hopefully, you now have a better understanding of the 995 motion to dismiss in California. It’s important to note that once the case has been dismissed, the prosecution can appeal the decision or re-file the charges. Most crimes have a two dismissal rule attached which means they cannot be re-filed if they have been dismissed on two occasions.


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