Can the People refile felony DUI charges after dismissal?
Does Penal Code 1387 allow for the People to refile a dismissed charge as a lesser included felony after two dismissals?
If your San Diego felony DUI case is dismissed…then that means it’s dismissed, never to return right? Game over, you can relax? Or will the criminal charges rise from their grave against you again*.
The lawyer answer you’ll usually get is “well, it depends.” It’s the same answer here, the Cal Supremes decided a new issue regarding this in their March 17, 2016 decision People v. Juarez, 199 Cal.Rptr.3d 735.
“Penal Code section 1387 generally permits a felony charge to be dismissed and refiled once, but not twice*.” “Here, charges that defendants committed attempted murder were dismissed twice. The People then charged them with conspiracy to commit murder based on the same underlying facts as the twice-dismissed charges.”
The Court of Appeal allowed the People to do this, but “express unease” in light of People v. Traylor (2009) 46 Cal.4th 1205. Per Traylor, the People can file a lesser included misdemeanor after a felony has been dismissed twice. But the Supremes were careful to limit their holding to just those circumstances. So the Supremes explain Traylor a little more.
First, the Court must look at the “offense” which “is defined not by conduct, but by its particular definition as such in the Penal Code.” “[I]n interpreting what is and what is not the ‘same offense’ under section 1387, courts must consider the statute’s purposes.”
The Court can evaluate using the Statutory Elements Test or the Accusatory Pleading test. “Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.”
Here, the Court used the Accusatory Pleading test and found in favor of Defendant, holding conspiracy to commit murder (as pleaded here) was the same offense of the dismissed attended murder charge.
All seven Justices agreed.
*FYI, for misdemeanors, Penal Code 1387 bars refiling after one dismissal instead of two dismissals like felonies. And Penal Code 1387.1 allows for refiling after two dismissals on certain felonies.
*Try as I may, I just can’t resist referencing Altered Beast here. I can think of nothing more appropriate here. Man, did I love that game. Now…how can I work in a Golden Axe reference…
He earned his JD from Thomas Jefferson School of Law and his BA in Music Education from Northern Illinois University.
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