Motion to Dismiss: Allowed - Restraining Order Violation
Our client was charged with Violation of a Restraining Order through third party contact. After reading the police report, we determined that the clerk-magistrate incorrectly issued the complaint. We argued that in the four corners of the police report, it did not lay out probable cause that a crime occurred. More specifically, in Massachusetts, the Supreme Judicial Court articulated what the Commonwealth must show to prove a 209A violation through third party communication by stating, “Where the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation.” Commonwealth v. Collier, 427 Mass. 385, 389 (1998). We wrote the Motion to Dismiss with Memorandum of Law arguing that there was not enough conduct shown for a third party contact violation of a restraining order. After a hearing, with arguments from us and the Assistant District Attorney, the judge granted the Motion to Dismiss. The case was dismissed.
Practice area(s): Criminal Defense