Understanding the Motion to Quash in Felony Cases
Are you in the middle of a felony case and you’re not sure what a motion to quash is? My name is Carl Birkhead, and I’m a criminal defense attorney with Wirth Law Office. I’ve been practicing criminal law for about seven years, and I want to help you make law easy by telling you a little bit more about this specific stage in the felony process. So if you’re going through a felony case and your attorney starts throwing around the terms motion to quash, we’re going to talk about what that means.
It means that you’ve already been at the preliminary hearing. I’ve talked at length about what a prelim is, and I’m just going to give you the quick blurb. Prelim is going to be where the state has to put on their basic case where they’re showing that it’s more likely than not that a crime was committed. The state’s already ruled and the courts already ruled in the state’s favor and bound you over to the district court level so now you’re in front of a new judge.
Filing a Motion to Quash
At that point, if your attorney is telling you that they don’t believe that the state should have won at prelim, you’re going to be hearing your attorney talking about filing this motion to quash. So you’ll get to your arraignment. Your attorney is going to stand mute and announce to the judge that they need time to get the transcript from that hearing so that they can file the appropriate motions.
This motion to quash is your attorney filing paperwork with the court stating, hey we had this hearing at whatever date that we had it, and although that judge found that there was enough evidence to keep the case alive and bring it before this court, before this judge, with all due respect that judge was wrong. They never should have let it get to this point and we are asking you, the honorable, wise, learned judge that we are in front of now to just correct this error and dismiss the case.
Understanding the Legal Elements
So usually what I’m looking at here is I’m looking at what are the elements of the crime. You can look at the Oklahoma Uniform Jury Instructions to figure out what the elements are, and it’s broken down into two main components. There’s the mens rea and the actus reis. These words sound weird because they are because as lawyers we like to use our Latin.
The mens rea is the mental aspect of it. It’s did you intend to commit this crime or if it’s not an intentional crime, were you negligent, and because of your negligence, the crime was committed? The actus reis is the act itself. It’s the physical act of committing the crime. As an example, if I’m charged with assault and battery, the mens rea is the intent to punch someone. The actus reis is the actual punching.
Evaluating the Case and Potential Outcomes
So I’ll look at those elements and I’ll go to our new court and say, hey court, my client’s charged with assault and battery but here’s the deal. They weren’t trying to punch me; they weren’t trying to punch the defendant. They’re a boxer. They’re at the gym. They were punching the punching bag and oh no someone called their name. They turned. They accidentally punched the other guy. They never intended to do it. There was no intent. The mens rea is not there. That’s what I mean.
We’ll look at the elements of the crime and we’re gonna try to show the court that at the lower level, the state did not meet its burden of proof. They didn’t show that the elements were there and therefore the case has to be dismissed. It depends on the case whether or not you’re gonna prevail on this motion, but it’s something that you want to talk with your lawyer about whether or not it’s worth it to file because even if the court doesn’t grant the motion and the case moves on to trial, it’s at least there and it’s part of the record so that way if the worst should happen and you get convicted, that’s an issue that you can then raise on appeal.
Schedule a Strategy Session
If you have questions about this, if you’re not sure where you’re at in the felony process, or if you just need some help, give us a call. I’m Tulsa criminal lawyer Carl Burkhead. I’m with Wirth Law Office and I want to help you make law easy. Contact us at 918-879-1681 to schedule a low-cost initial strategy session.
