the traditional reasons for granting a dismissal with prejudice applied in this case this court should reverse because the defendants were not entitled to such a drastic remedy for what ultimately were non prejudicial technical errors of rule five zero fours requirement that an arresting officer set a first appearance state within sixty days of arrest in all of these cases the crimes were bro was involved in an accident as a result of driving under the influence and it had resulting injuries there was evidence and the case that he was stopped because he was crossing the center line into on coming traffic it at to at a minimum each of these dui charges are class a misdemeanor years but because this was dismissed so early on we don't even know at this stage if any of these defendants are actually prohibited from filing even those felony dui charges because the trial court has designated the dismissal orders with prejudice appellate court gave two different reasons for justifying the dismissal with prejudice neither of these rationales is persuasive the trial court solely relied on the fact that the first appearance date was set out side of the sixty day window and one case it was sixty one days in another case sixty two i'd like to alert the court in the case of mr watt the court may have noticed that the parties are in a disagreement about the date of his first appearance we had relied on the date of january twentieth and defend it relies on november twentieth in fact if you look very closely at defendants appendix twenty eight you can see that it is in fact an eleven rather than a one so this would be november twentieth this is sixty three days outside of the of sixty three days following the defendant's arrest so we're talking about one to  deal with trials or disappeared to believe that they were compelled they seem to believe that under the rule it's a required it's a requirement that if the state cannot come in and show that it was impractica schedule a day within sixty days is that required on a manic dismissal and the trial judge is really in terms of designating the dismissal with or without prejudice the trial judges didn't really give any reason beyond arresting officers to set a first appearance within sixty days so that right and there's no dispute that they were arresting officers were bound by that rule and that they certainly should have set a date within sixty days so there was a violation here but the rule does not speak at all to what the remedy should be if there is a violation and that's what makes this rule a directory rule versus a mandatory rule as this court has already held in village of park forest versus fagan so this is a directory rule there is no provision as to what remedy should follow and furthermore this is not a case where violation of the rule is traditionally going to result in prejudice to either private parties or the public interest so and recent cases and such as people versus del bill are this court has talked about what is required if a rule is directory and there is a violation we have argued that under the principles that forth in that case trial judge has discretion to dismiss the charges but must find that the defendant suffered some prejudice for the  violation of the directory role yes to this question just truck or have discretion to dismiss or just the trial court have discretion to deny a motion for continu does have discretion to dismiss the charge without prejudice however in the criminal context the court is restricted in the circumstances under which it should be granting  the court also under under different circumstances does have the discretion to deny continuances but i think the rules that apply to zat are more favorable to the state in terms of and just to be clear under under delgo as this court noted there was a violation here of a of a state officials duty and so there is there is no question  that going forward all arresting officers in this state are bound by the sixty day requirement and there is no reason to believe that officers across the state are not obeying with this requirement the question is just w arresting officer makes such an error what remedy does a defendant get and it for remedy here of dismissal with prejudice shouldn't be on the table because none of the traditional bases for designating a dismiss i don't know how that would actually come in to play under these circumstances i mean certainly what we're arguing is similar to a harmless error standard in that the failure to set the first occurrence let's say within sixty limit rights of a defendant that would result in prejudice and it makes sense for those types of errors to result in a dismissal with prejudice however here there is no statute that would provide the corner with authority to dismiss with prejudice the only other bases that this court has ever recognized has been violation of due process in bringing charges this court has never under any similar circumstances found that a simple violation of a yes your honor is correct because it wouldn't be a final judgment if it were without prejudice it can be inferred that the dismissals were with prejudice the problem is that none of these courts have really in all eyes what what are the prejudice and why should this sort of an ear fall within that drastic remedy so it it is fair to say that those were dismissals with prejudice but does the fact person or is that if a defendant can show and it can come in and show prejudice then that the trial court has the discretion to dismiss the charges without prejudice it would be it would be a similar type of prejudice did the rules are obviously designed to ensure that the evidence remains fresh that traffic defendants get a quick trial so if there were some conceding that somehow this rule provides a twelfth basis for i think you're enemy set a very good point in that list is not specifically fit under any of the circumstances but there are circumstances where a trial court will dismiss a charge without prejudice or when statute such as the speedy trial act violation but your honor is correct that there is there is no explicit basis which the courts have relied to warrant dismiss entitle to a dismissal with prejudice based on state's failure to at the first appearance in court proceed to trial that is the second provision of rule five zero four which is limited to find only offenders so we have treated it as if as if this agency were subject to that provision in addition to the provision of rule five zero five but that could certainly arise in another case where if that would be a second i would also note that in terms of this there is there is sort of a practical problem with the trial court proceeding in this fashion because it really would have been nearly impossible for there to be a trial on the merits the first appeared state every single one of these defendants filed a demand for a jury trial as this court noted in nora's the actual scheduling of a jury trial the rule provides it has to be within a reasonable time but the party that is is making the determination of when to schedule is going to be the trial court so presumably these defendants because they had demanded a trial but by jury would  their first appearance need to at that time get a jury trial date so it's actually sort of inconsistent with the jury trial demand that the defendants then appeared in court on the first day and said we're ready for a trial i mean there's no evidence a jury had been assembled and that the court was even prepared to accommodate the defendants in that request this will county was exempt i do not know that wasn't raised it at the trial court if a court as to appoint counsel made regarding ready for trial we were ready for trial in fact and w damns the judges had a judge available for trial that day so inspect the state past the case three times just to confirm if they could even get a witness where witness was i took that as being a speedy trial jury trial demand was filed along with a motion to dismiss because of the rule violation of sixty or fourteen sixty days court granted were granted motion dismissed appellate court third district said well filing july twenty third one games on it ressa temporary team and this isn't something new with the filing this isn't something just completely you know caught something  exactly how that ramifications on a refile but there's a number of areas they need to just pass the case and on all of them i didn't hear any of them doing that except for and why i'm gams as in the case so there was no other motions which i think the courts would listen listen to i'm i can't speak for judge egan and judge mason but they're the two judges in this case who was there believe judge egan was the judge and people in essence yes he could of continued it and i don't want to it created created an example but yes i think the court could have if the if the state would have given him an argument to do that but there was no argument given so we impracticality of not setting it within the timeframe i get it why not show something to the court to say i it was impractical to set it within sixty days because we didn't get th en fair one judge i think judge mason was the one who said you didn't take other options you could have done other things you didn't do anything mr hamill your your comment that the state could have done something like ask for a continuance for example i mean doesn't that bolster the irgun men of the state that the proper procedure here by the judge would have been if there was going to be a dismissal to dismiss without prejudice respect i mean we don't seem like you're arguing that the state couldn't ask for a continuance in fact you specifically stated there were options open to the state such as asking for a continuance doesn't that at least go there if we agree with the state that prejudice is needed to find to for the court to not have used discretion and issuing an order that dismisses with prejudice if we agree with that argument or you are asserting that there wasn't any prejudiced of this to these defendants i didn't mean to imply that there wasn't but i mean to imply they could have done something there was nothing that was you know what could have been done they you know and i'm not speaking for process let me ask you flat out i mean how again he has to come back additional times my client has to come back even if they're in the area still i think i'm back take a day off work now so you either have working hard ship travel hardship or was going to steak and memories are fresher from the date of the occurrence rather than out how much time does it need is where is the officer a lot of these questions were answered but yeah there is prejudice and there is harm from not because we you came to court from what i read from the facts came into court and asked to be dismissed but he didn't clearly say trial so they set up it's dismissed without prejudice how do we deal with the language and norms where choice of a defendant who files a speedy trial demand which means that the state must bring him or her to trial within one hundred twenty days if the defendant is in custody or within one hundred sixty days if the defendant is not in custody appearances because court calls are increasingly packed court houses are increasingly packed there's a time frame of budgetary crisis i mean trying to get everybody and get a trial resolve this quickly an expeditious first hearing state but those facts were remarkably different from the facts in this case being the vet we didn't ask for extensive pretrial litigation that's not my concern my concern is the language that i've just read from that sets the outside limit of when the trial had to take place not on the first date but within one hundred twenty days of the defendant is in custody or hundred  opinion it was the date of appearance because the actual you when you file a jury trial the man and i took a step further i just didn't file the jury trial the man with the clerk i found that with the state and the clerk but no action was done so that's why i said it's not nothing it wasn't that the state wasn't aware a trial the man was made or a speedy trial demand was made the clearly were aware of it well they did it for whatever reason it is just wasn't ready for trial so with that if i may proceed through with one game soon we would have gone to trial that day if the our witness would appear because they passed the three times they said we're  didn't proceed to trial from the third district perspective the way the first set out they said first we have analyzed fourteen the sixty day rule clearly there was a violation clearly absolutely no evidence of impracticality was ever presented so as this mess the second question is whether or not the jury trial demand that a trial was held and so they rest their head on the use of a better term on the second part that no during the trial was held and that was the basis for the dismissal so they did a more  to tear approach from the way i read people versus i bro and the way i read people versus love us saying that there was no demand for trial made argo love was not dismissed without prejudice love was dismissed without in referring to one sex sentence of five affords as is the policy not an ex or a man to clarify something for me the i understand five or four correctly only the first and the last sentences in five will four applicable t case the sentence that said this is the policy of the court that an arresting officer or if the arresting agency has been exempted from the requirements of rule five zero five that sentence does come into play because we have no indication that sounds one says those dates shall be seven not less than fourteen more than sixty and then last sentence merely says a failure to appear on the first appearance date by the arresting officer is not good cause birth continuance rule five  five tells you the defendant what to do to avoid multiple court appearances and it seems to me you did this in this case you filed a not guilty plea amount of the trial by jury so there was no need to appear on that da other than the fact you would also set your motions to dismiss on that first appearance today so doesn't that take care of the problem as far as the prejudice to the defendant are the traveling eight hundred miles is concerned the fact that you do avoid multiple  trial dates and it's your not your not collect claiming that the failure of the circuit clerk in this case to immediately set a trial date i'm not winning anything now so you mean the basis for th dismissal is simply the failure to set the matter within fourteen or not less than fourteen or more than sixty days sixty days then there was the first aired on the second tier was and nothing else makes any difference that was the first and then the second tier is that we follow the rule explicitly regarding notice and demand for trial and but there's nothing in here that guarantees you a trial on the first appearance date unless it's an exempted  agency i again i can't does it say that you're guaranteed a trial on the first day it doesn't and then again to even your the supreme court has nor says there's no guarantee that you're going to get a trial on that but even though you're not guaranteed doesn't mean you can't have it and we almost didn't have it and now i'm gams so even though it doesn't guarantee it the whole idea is trying to the silicate and expeditious not having to go to court for a lot of people even for me apparently for the court it's quite intimidating so for me to appear from this court which is quite intimidating has to be incredibly intimidating for the average how many person no charge with a crime to have to make multiple court appearances and  filed the appropriate documentations with both the clerk and the state now normally you don't have to but i did take it the one step further by following what the state mounted again what does that have to do with the reason the basis for the dismissal if the dismissal was because the first hearing date was not set within sixty days well what you d i complied with the rules being that if any pleading is filed you shall give it to the other party so i think that's only appropriate if i follow jerry brown and by complying with the rules the defendants need not appear on the originally set first appearance day by complying with the rule five zero five if the trial date was if i got a notice of a different date yes so then you are saying that the failure of the clerk filed that demand i would like to kind of know that ahead of time that it's not but i'm not going i'm not going to tell my client not to appear one we only have one date of saying that he should appear i mean i won't take that next leap and tell somebody not to appear in court because that to me that's and also waiting to happen i'm not going to tell somebody not their parent court i'm not i'm not comfortable with that saying i don't want to appear in court but again  in again judge or justice i'm just not comfortable with telling somebody without a new firm date prior to that date because their whole reason with giving i imagine giving at least ten days is to get some type of notice out that there is a new date i mean that's why they want to tend and i think in the rules is ten business days excluding saturday sundays and holidays which it makes it even more than ten working days in the i imagine the idea before the court was give him some notice that there is a firm date set but without a firm date sat even though he doesn't have to be there we still have in the underlying case a statutory summer suspension which i did again even though i'm not the state's attorney on it and maybe i do things differently because i do things differently but i still think that there was prejudice here upon my clients  honour's to answer the question whether the court had the discretion to deny the defendants motion to dismiss under the rule in this case no the court had no discretion to deny the motion to dismiss for this this showing of impracticality limits what is actually a violation here so once a court fin that there wasn't it wasn't sat within sixty days no showing of impracticability it has found that a violation has occurred to all of these judges believed all at once i find that i don't have any discretion not to dismiss these charges within sixty days once the c comes into court and sixty days has passed there is no possible way to cure this error therefore again the trial judge is believed defendants have claimed that they are there prejudice by needing to appear in court multiple times this is a fairly unusual argument for a criminal defendant it's fairly typical in almost every type of case that a defendant is going to need to appear in court on multiple occasions the rules have set forth a procedure for the defendants to avoid a single court date and that would be if the defendants intend to plead guilty and demand a jury trial they don't need to come into court to say that on their first appearance state they can notify the clerk in advance and there thereby avoid having to appear just for this type of of an appearance also it's fairly interesting that defendants appear to concede that it is proper for them to appear multiple times on a statutory summary suspension of their driver's license but yet it's not proper for them to appear multiple times to proceed on the misdemeanor dui charge but clearly the issues in the do you write case much more complicated than they are in a statutory summary suspension where the question is simply because they agreed officer but oftentimes there is a lot of human expert testimony as to what the impact is on an individual a certain level of drugs or alcohol in a system these these cases typically are not simple enough to be resolved just by having the defendant come into court once and for the warrant based on the rule adopted below if the trial were to take place over more than one state's position that dui charges should not be treated differently from other criminal charges these are serious offenses we ask this court to reverse the courts below and allow the states to proceed with their prosecution think