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How many cases include improperly joined charges? The law is better for us than you might think.

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by: Ryan • July 18, 2012 • no comments

Prompted by an e-mail last week, from an attorney who had won the improper joinder demurrer, I wanted to write a very basic post that highlights the number of cases to which it would apply.

Assume you have the following two charges from the same traffic stop: (1) DUII (alcohol only) and (2) PCS.

If those two charges are in the same indictment, under current case law, they are improperly joined.

I would expect you to be skeptical. But it's really very simple. There are three grounds for joinder: same or similar crimes, same criminal episode, common scheme or plan.

Can we agree right out of the gate that PCS and DUII (alcohol only) are not same or similar crimes? Can we also agree that they don't represent parts of a "scheme or plan," unless your client is Hunter S. Thompson. ("As your attorney. . . .")

So that leaves only one ground for joinder: same criminal episode. But the AG's office has already argued that PCS and DUII (alcohol only) aren't from the same criminal episode, and the COA -- in an AWOP -- agreed. (We know this because the OSC granted review in that case.)

And keep in mind the COA has also held that fleeing an accident isn't from the same criminal episode as the accident itself.

The reason PCS and DUII (alcohol only) aren't from the same criminal episode is because (1) you don't need evidence of one to prove the other and (2) each has a different intent (to the extent DUII even has an intent in this context.)

And the result of winning this demurrer? Charges dismissed. Even if the charges are brought back in separate charging instruments, the evidence of one might not be admissible in the other.

And the result of losing? You have an issue for appeal, where, if you win, it would be too late to reindict because of the statute of limitations. And in some cases, losing means you win at sentencing, for reasons I discussed A Strategic Demurrer Updated w/ sample demurrer .

I frankly see cases sent out for trial pretty regularly which would be subject to the demurrer. I've written about a few, including cases where the state has charged Challenge to the Indictment: Failure to Appear and Witness Tampering . Because the state can reindict, this demurrer may not be a reason, by itself, to go to trial. But if you're going to trial anyway, good things can happen when you file it.