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Motion to Dismiss Allowed and No Probation Violation Found

August 2018

Our client was charged with Violation of a 209A order (retraining order) and Threats to Commit a Crime along with a violation of his probation. The Probation Department was looking for our client to serve a jail sentence as a result of being charged with this new crime. 

We filed a Motion to Dismiss the new charges based on a lack of probable cause to charge our client. After oral arguments, a judge allowed our Motion to Dismiss, and, therefore, the charges were dismissed. In addition, the Judge found no probable cause that a probation violation occurred. 

It was alleged that the complaining witness received an anonymous threatening phone call alleging a threat on behalf of our client. This is considered a third party violation or a third party threat because our client was not the person making the phone call. Instead, the third party was allegedly speaking on our client's behalf.

The Supreme Judicial Court stated that for a person to be prosecuted for a third party violation of a 209A order or a third party threat, there has to be a showing that the defendant intended for the violation or the threat to be communicated. We successfully argued that there was no evidence that our client intended for this to happen. 

Instead of receiving a jail sentence for a probation violation, our client had the charges dismissed and no probable cause of a probation violation was found. Therefore, our client continued with their probation.  

Practice area(s): Criminal Defense

David Ellison

David Ellison, Criminal Defense Lawyer and Personal Injury Lawyer in Rhode Island and Massachusetts, is an aggressive, honest & affordable attorney. 

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