STATE OF WISCONSIN

CIRCUIT COURT

YOUR COUNTY

State of Wisconsin, Plaintiff, vs. John C. Doe, Defendant. File No. 13CM0000 DEFENDANTS MOTION TO DISMISS: DEFECTIVE COMPLAINT

The defendant, appearing specially by the undersigned attorney and reserving the right to challenge the courts jurisdiction, moves the court for an order dismissing this action. The defendant brings this motion pursuant to section 971.31(2) and (5) of the Wisconsin Statutes on the grounds that the court lacks jurisdiction over the defendant because the criminal complaint by which the defendant is charged is defective. Specifically, the complaint fails to state the essential facts constituting the offense charged as required by law, in violation of the rights guaranteed by the 4th, 5th, and 14th Amendments to the United States Constitution; article I, sections 1, 8, and 11 of the Wisconsin Constitution; sections 968.01 and 968.02 of the Wisconsin Statutes; and State v. Haugen, 52 Wis. 2d 791, 191 N.W.2d 12 (1971), State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 173 N.W.2d 175 (1970), and State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 161 N.W.2d 369 (1968). IN SUPPORT WHEREOF, the defendant asserts: 1. On [DATE], the State filed a complaint charging the defendant, John Doe, with possession of tetrahydocannabinols (THC), possession of drug paraphernalia, and possession of an illegally obtained prescription, pursuant to Wis. Stat. 961.41(3g)(3), 961.573(1), and 450.11(7)(h). The defendant appeared for an initial appearance on [date]. The defendant raised the issue in this motion, and the court adjourned the initial appearance to [date]. 2. The six-page criminal complaint describes a controlled buy operation that did not involve the defendant. A traffic stop was executed on an automobile, and upon search of the automobile, a box was located that contained a pipe with THC residue, prescription pills, and a photo identification card of the defendant. Criminal Complaint at 4. The only other reference to the defendant is on page six, in which one [witness] indicates that he had previously seen the defendant smoking methamphetamine. 3. The complaint fails to establish probable cause within its four corners that the defendant committed the crimes alleged, thereby failing to establish jurisdiction. [T]o be found guilty of possession of a controlled substance in Wisconsin, the defendant must have had the substance under his or her control and must have knowingly possessed the substance. See WIS JICriminal 920. State v. Griffin,

220 Wis. 2d 371, 381, 584 N.W.2d 127 (Ct. App. 1998). The three charges in this complaint fail under both prongs of this analysis. The complaint provides no facts establishing that the defendant had any of the items in question under her control. Indeed, the defendant was not in the vehicle at the time of the stop, nor is there any indication that the defendant was associated with the vehicle. Additionally, the complaint fails to establish that the defendant even knew about the items is question until the commencement of these proceedings. The complaint additionally contains no facts supporting a reasonable inference that the defendant had the items in her control and knew of their existence. The only reference in the complaint to the defendant other than the identification card found in the car does not describe the defendant with marijuana, a marijuana pipe, or prescription medications. WHEREFORE, the defendant respectfully requests that the court enter an order dismissing this action. Dated this 3d day of December, 2013. Chad R. Thomas Attorney for the Defendant ______________________________ By: Chad R. Thomas State Bar No. 1086887 P.O. Box 312 Wrightstown, WI 54180 (920) 403-0444 (414) 435-9179 (facsimile) chadrthomas@gmail.com