Wednesday, March 24, 2010

Dropping Charges - The Non-Prosecution Affidavit

Clients often ask whether the prosecutor will dismiss their criminal case if the complainant "drops the charges?" During this scenario the complaining witness may contact the prosecutor and ask them to stop the prosecution of their case. In Brazos County, the prosecutors require the complainant sign a "non-prosecution affidavit" in support of this request.

Note the complainant has no actual authority to compel the State to dismiss a case. Rather, the prosecutor has absolute authority to continue, or not, the prosecution of any criminal case in Bryan|College Station or any other area of Texas. However, in the right situation a non-prosecution affidavit from the alleged victim can go far in giving the accused person negotiation leverage. That is, many times the prosecutor does agree to dismiss the case, or sometimes reduce charges, based on the wishes of the victim. But in other cases, like those involving serious violence, I've seen prosecutors give a non-prosecution affidavit the "circular file" treatment. That is, no value whatsoever.

So, when speaking with your criminal defense attorney about the issues in your case, don't forget to let them know if the alleged victim might be willing to sign a non-prosecution affidavit. Be very careful, though. DO NOT attempt to persuade, convince, or coerce an alleged victim to "drop charges." There are criminal laws prohibiting retaliation against a person who is a victim or one who reports the occurrence of a crime. You could be prosecuted for a serious felony offense, like retaliation, if you said the wrong things or inadvertently frightened the victim. LET YOUR LAWYER handle this matter after consulting with you.

50 comments:

sage said...

It seems that you've put a great amount of time into your article and I want a lot more of these on the internet these days. Well, anyways... it certainly was very informative for me.

Best Attorney

Stephen Gustitis said...

Thanks for visiting. Glad I can be helpful.

Concerned said...

What if the charges aren't filed by the victim, but rather, the state?

Stephen Gustitis said...

The charges are ALWAYS filed by the State. The complainant simply makes a report to the police and a prosecutor decides whether to prosecute the case, or not. However, depending upon the case and prosecutor office policy, the wishes of the alleged victim may be taken into account when the state is deciding whether to file charges.

Concerned said...

Thank you for your prompt response. I am going to attempt to sign a non-prosecution affidavit to drop the charges against the defendant.

Meanwhile, I am in the process of trying to lift a magistrate's emergency protective order. The order was put in place for me, to prevent the defendant from contacting me for a period of 61 days. In order to get the order lifted, I was instructed to speak before the judge who signed the EPO along with the police officer that requested the order. I think it's important to note that I did not ask for the order myself, but it was put in place on behalf of the police.

I think the order is completely unnecessary. It also causes daily stress, being that I live in a very small town where students all congregate in the same local areas, as well as attend the same university. In your experience, what are the chances of an EPO being dropped? Is there anything in particular (reason-wise) that could be mentioned to help my cause?

Also, is a description of the incident going to be asked for by the judge? I do not want to say anything that would hurt a future trial or diminish the chances of having the charges against the defendant dropped.

Thank you for your time. I'm looking forward to hearing from you.

Stephen Gustitis said...

Good luck, Concerned. If you want to request the protective order be lifted, you must speak with the prosecutor's office. Typically, the DA office has a lawyer responsible for filing the applications for protective order, in the first place. If you contact the prosecutor, they will want to speak with you about the case. That is a risk you'll need to evaluate on your own.

Beaueq said...

Is it too late to ask a question? :)

Anonymous said...

When if it was a domestic assault and I called the police but I went to jail. My girlfriend is still with me. She moved and is not going to court.

Stephen Gustitis said...

It's never too late to ask a question. Fire away!

Anonymous said...

how long does the process actually take from the day it was filed?

Stephen Gustitis said...

Are you are speaking of the day the non-prosecution affidavit is filed? If so, then note the prosecutor has control over whether the case goes forward, regardless of the victim's wishes, or is dismissed. As I mentioned in the original post, the prosecutor is not bound to follow the victim's wishes in these cases. But often the non-prosecution affidavit helps the accused. Good luck.

Anonymous said...

thank you for ur quick response.

and so as far as the accused...do they get notified that the non prosecution affidavit has been sent in or if it has been dismissed or is to be continued?

Stephen Gustitis said...

The defendant is not often notified of these events. Your lawyer can investigate and help you understand the status of the case.

Anonymous said...

can the non prosecution affidavit be done before the case gets filed? or does one have to wait until it has been filed?

Anonymous said...

If I didn't tell the whole story on the affidavit can the case be drop and will I get charge for lying?

Anonymous said...

Can I get charged for lying an doinng an affidavit for domestic violence ? Should I get a lawyer

Anonymous said...

Where can you get an affidavit form?

Lilly Ann said...

I went to the da today and asked to drop charges for an unathorized use of a motor vehicle. Im not sure what the paper was actually called but i wasyold to ask for a affidavit of dismissal.. is that the same as non prosecution affidavit?

Stephen Gustitis said...

Lilly: It probably was the same thing. The important thing is you asked the prosecution not to proceed. You accomplished that goal.

Stephen Gustitis said...

You never want to lie to the police or prosecutor when asking them to drop charges. You risk getting into trouble, yourself.

Anonymous said...

i had a domestic disturbance at my house and i did call the police. i told them i did not want to press charges, but they arrested my friend and now he has a court date. i know it's not my decision if the case gets dismissed or not, but would like to do everything i can to do so. if i file a non-prosecution affidavit, is that all i can do? where do i fill out the affidavit, the courthouse?

Stephen Gustitis said...

Non-prosecution affidavits are usually completed in the prosecutor's office. They will probably want to talk to you about your reasons for filing the affidavit. I would call the prosecutor's office by telephone to confirm the procedure for filing the non-pros.

Anonymous said...

Can I go to jail for writting a different story on a non prosecution affidavit then from what I told the cops ?

Stephen Gustitis said...

Yes. Making a false report to the police is a crime in most states.

Anonymous said...

My 16 year old daughter and I got into a fight back in 2008. The police were called and they removed her and took her to my sisters house. After we worked everything out I went to the prosecutor's office and filled out the affidavit of non prosecution order. Here we are 5 1/2 years later thinking everything was ok and find out that my daughter has a warrent. When we called to ask why it was because of the assault charges that I thought were handled were not. We went to the court and they released her on a PR bond and set a court date. They are saying that they can find the affidavit and we never received a court date or heard anything from the court in 5 1/2 years. Now they say pay us $608.00 and stay out of trouble for 30 days and everything is done. What can we do? It sounds like we have to pay for their mistake and it will all go away.

Stephen Gustitis said...

Sir: You need to hire a qualified criminal defense lawyer immediately to assist you. There are too many variables to discuss on the Internet. A good lawyer is your best investment now.

Anonymous said...

How long does an officer has to turn in paper work for warren? I was unarrested after my mother illness and I was told I wold have a warren for my arrest. 10 weks ago. Officer said from 4 to 6 wks. Tina

Derrick Cole said...

My girlfriend put family violence on me, but she signed an affidavit of non prosecution , but I still have to go to court, why??

Stephen Gustitis said...

Derrick: Because the prosecutor ultimately decides whether a case will be prosecuted, not the alleged victim. Get an experienced criminal attorney immediately to assist you.

Derrick Cole said...

Thanks

Anonymous said...

I filed a report against my boyfriend, but I was the one to start the physical fight. He is in jail now because this violated his probation. If I fill out a non-prosecution affidavit, if I fill this informing them of what happened, will I get arrested?

Stephen Gustitis said...

You may get arrested if you falsified your initial report to the police. Thank you for your question.

Anonymous said...

question: i called the cops on my teenage son because he was been rebellious to me, so then I tried to hit him in amoment of anger and he did not let me hit him by holding my arms. the police asked me if i wanted to press charges against him for assault and I said no cause my son did not beat me up. I know it will be up to the da's office now, but could my son be charged for an assault just by holding my arms to avoid getting hit? he did not leave any marks by the way.

Shawn said...

Can you tell me where I can get the affidavit of non-prosecution form from?

Anonymous said...

You sound like a god, experienced lawyer...My husband & I got into a terrible argument that got physical. We were both intoxicated, then my brother stepped in the middle of it & called the police. Me not thinking nor in my right mind, pressed charges on him & now he has a 3rd degree felony & is in jail. I want to drop the charges...What can I do to get him out? The judge took his bond away, Where can I find the Affidavit Non- Prosecution paper?

Stephen Gustitis said...

You need to hire a qualified and experience attorney immediately. Do NOTHING until you have hired counsel to help you make these important decisions.

Anonymous said...

I called to get my boyfriend escorted from our home and he was mot arrested...he was only asked to leave witch he did...he had a prior charge in which he was arrested the next day for that...2 days later he was charged with domestic violence on me...I never made a statement or anything...if I do an affidavit of non prosecution is it likely to have these charges drop...and lift the no contact order...which I never asked for nor did I know anything about it

ChrissyLynn said...

Okay so here is my question,
My brother was charged with ASSAULT WITH A DEADLY WEAPON,AND TWO COUNTS OF CHILD ENDANGERMENT but should have never been his ex girlfriend who is has been and was on meth saw him on the road in front of her freaked out cause she was on meth and took off like he was chasing her for something ran into a ditch came out of the ditch and hit the front of my brothers truck then called 911 and lied and said he hit her.She filed an A.F.P. and told them she knew he was not a threat to her and the children then just recently went got back on drugs and told the da that she wanted to undo the afp what does this do to his case can we still use the fact that she filed it and subpena whoever she filed it with to testify to why she said she filed it?

Stephen Gustitis said...

Ms Lynn: please have your brother hire a qualified defense attorney immediately to assist him. Thank you for your question.

Anonymous said...

My boyfriend and I were drinking and I was taking meds for Deprssion that made me Fall down, not in my right mind I called police and said He hit me, He's in jail charged with a Felony. I plan to go sign a non prosecution form tomorrow. Will I get in Trouble? I'm 58yrs old and on several medications. Thank you

Yuliya Saniyeva said...

Dear Stephen,
The situation which took place on May 26, 2014, me and my husband had an argument which got out of control after I have initiated the physical destruction to his office by throwing stuff all over the office and pushing the chair where he was sitting and hitting him on his forearm and back, which led him to make actions of self defense and he tried to restrain me from causing any more problems. There was clearly provocation for a physical response and the response received was out of proportion. I called the police and they arrested him and took him to jail and pressed charges of domestic violence and prevention of making emergency call against him.

I have mental issues and anger management problems which he was trying to address to a professional help for almost a year which I refused to accept. Currently I visit counselor on a regular base for past 3 months to help me with my mental issues of misrepresenting information and cope with my anger management along with bipolar disease. And my counselor can provide prove of my mental illness.

Judge issued EPO for 61 days and I already filed request for cancellation of the EPO, because the information presented to the police officer was misrepresented and untrue. Now we are waiting for hearing.

Also today I filled out affidavit of non-prosecution form and going to submit it to the Collin County Criminal district attorney next week. Can I submit that form on my behalf or do I need to have an attorney?
I'm pretty literate and educated.

Thanks in advance
I appreciate your help

Stephen Gustitis said...

Dear Yuliya:
Please contact a qualified criminal defense lawyer in Collin County to better advise you. They will better know the system there.

Anonymous said...

Are you still available to answer questions?

Stephen Gustitis said...

Yes, I'm available. Please contact my office at 979-823-9111 to arrange an appointment. I'd be happy to discuss your case.

Anonymous said...

My boyfriend was arrested by talking to his cousins roommate drunk at a bar his cousin had a assault by contact ticket on him she misunderstood called the cops cause she was scared they took it as he was threatening her she tried to go sighn a letter of non prosecution but da won't let her. The assault by contact charge has already been closed now what can I or she do?

Stephen Gustitis said...

Hire a qualified criminal defense attorney to help your boyfriend.

Anonymous said...

Hello sir I have a class 3 DV charge pending involving me and my wife. My job took me out the country its been almost 4 years since this incident. Ive had a PD and kelp in touch but it seems like their not doing anything. A lot has changed in these 4 years better marriage 2 kids etc..... but what I wanted to ask is with my wife signing this form and stating all the above what are the chances of dismissal?

Stephen Gustitis said...

I don't know the chances of a dismissal. Please consult with a qualified criminal defense attorney in the jurisdiction and ask them. thanks.

Leah Lewis said...

My boyfriend and I got in an argument last Tuesday. He originally called the police because he thought somebody was in our house with me and he asked the officer to be there with him as he entered the house because he didn't want to get into a fight with anyone. My name is the only name on the lease and I assured the officers that showed up that no one was in the house. My boyfriend was out of sorts and was asked by the officers to leave. About an hour later I was getting out of the shower and my boyfriend was crawling in my back bedroom window that I had left unlocked claiming he wanted to get some of his stuff. I did not call the police immediately but I told him he needed to leave as we started fighting again. I called the police in hopes that would just escort him away. When they showed up it was like the entire city was there I opened the door and he walked outside where they used a ridiculous amount of force guns blazing and arrested him. One of the officers even threatened to shoot my little wiener dog. As soon as I saw this I started to pull out my phone to try and record it because it was completely unnecessary. As I tried to see what was going on another officer told me I had to sit inside. I told her that it was not against the law for me to see what was taking place and she told me it was and threatened to arrest me. At this point I stated that I did not want to press charges against him and that this was all just a misunderstanding. They even told me that he had a weapon on him (a pocket knife) that I had bought him that he takes everywhere which was completely dramatic. Here is my problem, they ended up taking him to jail... and charging him with criminal trespassing. He is on interstate compact probation and now this charge has given him a probation violation thus a probation revocation in Missouri hearing is now in the works. This is so unfair because he is doing so good here in Texas, works full time, and is staying out of trouble. So I do not really know where to start. I know he has 30 days but his court date in Texas isn't until late August. My question is do I get an attorney for the charge in Texas or should we get one for Missouri first. I feel these charges shouldn't stand for he does have a lot of his personal belongings at my house and stays here a few days out of the week. This is all so stressful thanks in advance for your advice!

Stephen Gustitis said...

Leah: I'd advise getting a qualified defense lawyer in both states. Good luck and thank you for your question.