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Can I Get A Case Dismissed Based on The Government’s Delay?

by | May 20, 2024 | Criminal Defense

It depends. The law protects people from being prosecuted if too much time has passed. There are different kinds of timelines to which the government is held accountable. Many people have heard of terms like the “statute of limitations” and “speedy trial”. These terms are important to understand in the criminal defense world and may apply to your case if you are charged with a crime.

What is the Statute of Limitations?

Many people believe if, after they are charged with a crime and their case is dragging on for too long, the statute of limitations applies. This is incorrect.

Essentially, the statute of limitations is the time period between when an alleged crime is committed and the deadline by which the government must charge the offender with a crime. There are statutes of limitations in civil cases as well regarding lawsuits for money. But for the purposes of this blog, we will discuss the statute of limitations in Ohio for the prosecution of criminal charges.

As with most laws, there are exceptions and extensions—in other words, specific rules that can extend the time period for the statute of limitations. However, the basic rules are as follows: in Ohio, with the exception of serious crimes such as rape or murder, a felony charge must be brought within six years from the date of the criminal offense. For misdemeanors, the government has only two years to charge someone from the date of the offense—except for minor misdemeanors, which shall be filed within six months. These rules are outlined in the Ohio Revised Code “ORC” Section 2901.13. The government cannot charge you with a crime if it doesn’t file the charge within these strict deadlines.

It is important to note these are strict deadlines imposed by statue. There can be delays that violate constitutional rights as opposed to statutory rights—the analysis for these types of delays is not as clear cut and typically involve the length of the delay, the reason for the delay, the prejudice involved in the delay, whether evidence has been destroyed due to the loss of documents, witness unavailability, faded memories, etc. This type of delay can be referred to as pre-indictment delay and we have successfully argued cases should be dismissed because of this reason as well. It is what the law calls a violation of due process.

What About Rights to a Speedy Trial?

The timeline here is different. Like the statute of limitations, these are deadlines imposed by statute as well. However, the time period is different. In other words, it is a deadline but not a deadline for the filing of charges. As the statute of limitations governs the deadline by which the government must charge you after the alleged crime is committed, the deadline for a speedy trial concerns the deadline by which the government must bring you to a trial after you are charged with a crime.

ORC Section 2945.71 is the Ohio statute that governs a defendant’s speedy trial rights. The basic rules are as follows: the government must bring you to trial within 30 days if you are charged with a minor misdemeanor; within 45 days on a fourth or third degree misdemeanor (an M4 or M3, respectively); within 90 days on second or first degree misdemeanors (an M2 or M1, respectively); and 270 days for a felony charge. If the defendant is incarcerated, the defendant gets three for one days of credit, meaning, for speedy trial purposes, the government must bring a defendant to trial in only one third of the time it would otherwise have. So, for example, if a defendant is charged with a first degree misdemeanor, for example, though he or she is presumed to be innocent, the court could set a bond on that person; if the person cannot post a bond, then they remain in jail until they are brought to a trial. However, the government would have only 30 days to bring the defendant to a trial—instead of the 90 days because of the three for one days of speedy trial credit.

What About Due Process Violations to a Speedy Trial?

A delay in bringing someone to a trial may also be based upon a due process violation. This is rare but does happen. We call these delays post-accusation delays and these sometimes exist where a defendant was charged but never served with any paperwork. So for instance, perhaps an individual was charged but the police never attempted to arrest the individual or serve the individual with a copy of the complaint.

This happened recently in a case where we represented a defendant in the Hamilton County Municipal Court. Our client lived in New York and was accused of telecommunications harassment. His ex-wife was the alleged victim. The complaint alleged he committed telecommunications harassment in November of 2021 and he was charged with two counts. The government did not even file charges until May of 2022. At this time, the government issued a warrant. This delay in filing the charges was frustrating but the government was well-within the two year statute of limitations, so there was no statute of limitations issue here.

The real issue in this case was our client did not even learn about the charges until December of 2023—when his divorce lawyer learned about the charges and warrant through domestic relations proceedings. Soon after that, we met with the police and the police department served us on our client’s behalf. That was in February of 2024—21 months after the charges were filed.

Essentially, the warrant just sat in the file for a long time. At no point did the government even attempt to serve our client with a copy of the complaint, affidavit, or warrant. No police officer, prosecutor, or any government agent even attempted to serve him so that he would have notice he was being charged with crimes. Importantly, our client had the same address and never moved or changed his address. The government and his ex-wife knew where to find him—however, the government simply failed to act.

Hamilton County sits in the 1st District Court of Appeals. In State v. Sears, 166 Ohio App.3d 166, 2005-Ohio-5963, the 1st District Court of Appeals dismissed a charge where there was a nine-month delay and no good reason for the delay in serving the defendant with the warrant.

In our case, the government could not show any good reason for the 21-month delay in service of the complaint. We filed a motion to dismiss the case and just this week, the court granted our motion. Our client has a clean record, and because his case was dismissed, he was able to keep it that way because of the lengthy and unjustifiable government delay.

Experienced Criminal Defense Lawyers in Southwest Ohio

Over the years, we have tirelessly advocated for our clients and will hold the government accountable on behalf of our clients in every single case. If you or someone you know needs a criminal defense lawyer, do not hesitate to contact the experienced criminal defense team at Rittgers Rittgers & Nakajima for your free consultation.