Following too closely - need to file motion to dismiss

compuman
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Following too closely - need to file motion to dismiss

by: compuman on
Thu Jan 20, 2011 2:55 pm

I was charged with Following too closely, two weeks after an alleged collision.

The police was called at the scene, asked us if we exchanged information and then told us we were free to go. Two weeks later a summons was issued to me for following to closely. Apparently the police took statements from the people whose vehicle I allegedly hit. There is no damage at all, nothing supports a collision. There are many errors in the police report, accident report, etc. They got licence plates, addresses, insurance information completely wrong. Based on that I was advised to file a motion to dismiss.

My question is: WHEN and HOW can I request this motion to dismiss? Do I have to do it in court, in front of the judge, BEFORE a trial date is set? Or do I have to do it ON THE TRIAL DATE, just before a plea is made? Are there any forms to be filed?




compuman
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by: compuman on
Thu Jan 20, 2011 9:30 pm

The collision could not be proven. All they have is the statement of the other driver. Combined with a completely different plate for his vehicle. In other words, the charge of following too closely is based on a collision that cannot be proven, with a vehicle that was never there. I believe this makes no sense at all, so why am I being charged?

Another question is: do I simply tell the judge "I want to file a motion to dismiss"? Or is there a procedure? Does it have to be in writing, outlining the reasons why I want the charge dismissed? Is there a sample somewhere I could use for guidance?


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Simon Borys
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by: Simon Borys on
Thu Jan 20, 2011 10:48 pm

If it is as you say and they can't prove the charge then I don't think they'll proceed with the trial. Why would the prosecutor do so if he has no evidence to call? What's he going to do when the trail starts? Most likely though, if they proceed to trial, the prosecutor will have what he feels is enough evidence. You can ask for a dismissal verbally at any time, but if you say it's because they can't prove it, the judge will likely say, "let's see" and allow the crown to present it's evidence.

So the best procedure would be to wait until the crown has tendered all its evidence and then, if you still feel they haven't proven the charge, bring a (verbal) motion for a directed verdict, sometimes called a motion for non-suit asking the judge to dismiss the charge for lack of evidence. If he agrees it's done, if not, you have the opportunity to introduce your own evidence.
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PaulinCanada
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by: PaulinCanada on
Thu Mar 03, 2011 11:20 pm

I don't have the case law in front of me, but if you get a copy of the Annotated Ontario Highway Traffic Act, and look up the charge (Follow too Close), you will see several cases that talk about the case law relevant for this charge...but the bottom line is that a rear-end collision is not sufficient evidence to convict....if that's the only evidence...

As far as the motion to dismiss, well that would occur at trial, as far as I know....


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by: Radar Identified on
Sat Mar 05, 2011 2:59 pm

Correct, a motion to dismiss would occur at trial.
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