Tuesday, November 25, 2008

My Complaint Has Incorrect Information In It

I have a lot of client's telling me that they have been charged with an OWI or other crimes and that they have read the Complaint (the charging document) and it has false informtion in it. What can they do?

Well, first you must determine whether or not the information is material to the sufficiency of the Complaint, i.e., but for that possibly incorect information, would they have enough to charge you? If the answer is yes, then disregard the fact that you believe it to be incorrect. If, however, you believe that without that information in the charging document the case would have no merit or be insufficent to charge you, then you may move the court for an evidentiary hearing, via a Franks/Mann motion. In bringing this motion you are challenging the sufficiency of the charging document. In attacking the sufficiency of the Complaint you should file a motion and affidavit to support the motion. You, however, do not have to show that the misrepresentation was intentional or reckless, so long as "but for the misstatement or omission being included" there would not be probable cuase.

So, there are times where, due to error, you may be able to get your case dismissed.

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