There is a common misconception out there that, in a misdemeanor case, or in a traffic case, that if the arresting officer or the citation issuing officer does not show up, that you are entitled to a dismissal of your case.  Sometimes that can be the case, but many times it is not.

This can differ between counties in West Virginia.  Usually, in a misdemeanor case, the first court date will be a “pretrial” hearing.  The purpose of this hearing is for the defense attorney and the prosecutor to attempt to resolve the matter through a plea or some other resolution, or else to set the case for trial.  Usually there is no need for witnesses at this hearing.  However, some counties will subpoena witnesses to this hearing date regardless – including law enforcement witnesses.  But the purpose is generally not to testify, but rather to be available for the prosecutor to speak to in an attempt to gain their consent, or other information, which would be helpful to resolving the case by plea agreement.  Some counties do not subpoena witnesses to this hearing and do not expect them to show up.  Other counties do not subpoena witnesses to this hearing, but send them a letter advising them of their right to show up – or of their preference that they show up.

Many counties used to always subpoena law enforcement officers to these hearings.  Many still do.  Many used to dismiss the charges if the officer who was subpoenaed failed to show up.  Some still do – and usually only if the prosecutor wants to teach the officer a lesson.  But in the majority of cases, a defendant will not be entitled to a dismissal on these grounds.  Now the actual trial date is a different story.  If you are set for trial and the officer doesn’t show up, you may get a dismissal from the magistrate, or the State may request a continuance, depending on the reason the officer did not show up.  Or, the State may attempt to proceed to trial without the officer’s testimony (if there is other admissible evidence).

In short, there are less ways than you would think, to get out of a misdemeanor criminal charge on a legal loophole or technicality.  Sometimes you can, but most often it is through the hard work and persuasiveness of a good West Virginia criminal defense lawyer.

– John H. Bryan, West Virginia Attorney.