Criminal Law Questions? Ask a Criminal Lawyer.
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I would suggest that your analysis is accurate. As you have outlined, the statute under which your friend is charged requires the use of a "hypodermic or syringe". Your friend though, was apparently charged while possessing a smoking device. As a smoking device is neither a "hypodermice" or a "syringe", a motion to dismiss would seem prudent.
As a note, your friend should also keep in mind that a violation of 2925.12 is a second degree misdemeanor. Meaning, the charge is rather minor and the penalties are typically rather lenient. Additionally, the mere filing of the motion may encourage the prosecutor to make a rather reasonable offer.
Please let me know if anything requires clarification.
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I really appreciate your input. I have one last question and I will gladly accept your answer. Are there different types of motions to dismiss in criminal cases? For example, could the court grant the motion to dismiss but allow the prosecutor to amend the charges to accurately reflect the evidence? Will double jeopardy be an appropriate defense against new charges?
It is theoretically possible for a motion to dismiss to be granted and for the prosecutor to then come in and file a different charge. Having said that, I would suggest that such a result would be unusual.
When a prosecutor files a charge, it is his ethical obligation to file all relevant charges and to only file charges that he believes he can prove in court beyond a reasonable doubt. Meaning, if a motion to dismiss were granted as to the filed charges, then there should not be any charge remaining that the prosecutor believes to be appropriate.
As to "different types" of motions to dismiss, one might file a motion to dismiss arguing that the allegations do not arise to the level of a crime, or that the statute of limitations ran before charges were filed, or that there was prosecutorial misconduct or that jeopardy had already attached in a previous case. These are all examples that come to mind.
While I do not have statistical data available and I have never conducted a scientific survey, I would suggest that new charges are filed after a successful motion to dismiss less than 10% of the time. As a general rule, a successful motion to dismiss will effectively end the case.
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