Written by attorney Bill Powers

Bill Powers Reviews MOTIONS TO DISMISS CASELAW - Reference Materials



  • A motion to dismiss is properly denied if “there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense."  State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990).  
  • “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."  State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).  
  • “When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence."  State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998).  
  • The test of sufficiency of the evidence is the same whether the evidence is direct, circumstantial, or both.   See State v. Cook, 334 N.C. 564, 569, 433 S.E.2d 730, 733 (1993);  State v. Cain, 79 N.C.App. 35, 46, 338 S.E.2d 898, 905 (1986).  
  • Circumstantial evidence may be sufficient to withstand a motion to dismiss even when the evidence does not rule out every hypothesis of innocence.   State v. Foreman, 133 N.C.App. 292, 298, 515 S.E.2d 488, 493 (1999), modified on other grounds and aff'd, 351 N.C. 627, 527 S.E.2d 921 (2000).
  •   Contradictions or discrepancies in the evidence “are for the jury to resolve and do not warrant dismissal of a case."  State v. Jarrell, 133 N.C.App. 264, 268, 515 S.E.2d 247, 250 (1999).

Motions to Dismiss in North Carolina can be relatively difficult to understand, especially in the context of Impaired Driving allegations. Since the passage of the landmark DWI legislation in 2006 pursuant to the Governor's DWI Task Force, one of the most commonly argued points is: Whether either Reasonable Suspicion or Probable Cause existed to first stop and thereafter arrest the accused for DWI DUI.

Many use the terms DWI & DUI as synonyms, although there are technical differences:

The charge, under N.C.G.S. 20-138.1 is Driving While Subject to an Impairing Substance or Driving While Impaired DWI.

"DUI" or Driving Under the Influence was the term traditionally used to describe "drunk driving" on the streets of North Carolina.

As the law has developed, the North Carolina General Assembly has expanded impairing substances to include not only alcohol, but also illegal drugs and LEGAL medications. Therefore, "Driving While Impaired" has become more expansive, allowing for impairment through substances other than or in addition to ethanol.

As it pertains to these reference materials, one would be remiss in failing to draw a distinction between a PRE-TRIAL MOTION TO SUPPRESS OR DISMISS in a DWI case and the standard Objection / Motion at trial before the case goes before the Finder of Fact for ANY type of criminal matter.

That issue is particularly set forth in the "Light Most Favorable to the State" legal maxim, as well as are any "discrepancies" than are to be "resolved by the jury." Legal arguments regarding Reasonable Suspicion and Probable Cause are just that: Legal Arguments, not issues of fact. The complicating factor is when the Court, the Finder of Law, must review the facts in order to make a Legal Finding & Conclusion of Law.

The standard, in the light most favorable to the State, is whether the PRIMA FACIE elements have been proven (however strong or weak) to such an extent that the JURY can proceed in its function? That is separate, apart and subsequent to the legal ruling on Reasonable Suspicion and/or Probable Cause before the Court on a pre-trial Motion.

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