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With regard to requested discovery, if it is not forthcoming from the opposing side--be it prosecution or defense--then a Motion to Compel the discovery is the proper procedure. A Motion to Dismiss would not be proper for a lack of producing the discovery alone.
Well my attorney which I have not gotten good communication with thus far said his rep sent a letter to the cheif magistrate... I ask her when would they know something and she gave me a "fuzzy" answer... it just drives me crazy that I can't find something out... She did however make the comment " I can call and have them to move the motion up" at the very minute that I was told that I was not thinking... well as I thought I ask myself " what did she mean by " MOVE THE MOTION UP" in other words what is the procedure when an attorney sends a letter to a magistrate judge requesting a dismissal.. now I do know that if the judge wants to deny the motion he can, or he can go with what the attorney wants. When I went with this atty he told me that if the cop didnt respond within 30 days that he could ask for a dismissal... Perhaps on your experience have you ever heard of that? I understand your reply but now that i have said more depth does that help? I'm just trying to get peace of mind because if im convicted of this ill have to wait an additional year to get my license back.. I can get them back in June but if DMV gets this ( if im convicted ) they will add a year... Perhaps do you have any suggestions to asking for a lesser charge than a DUS? if so what could I suggest?
LADYLAWYER : Hi,
LADYLAWYER : Thank you for the additional information. I apologize that I had to go offline and wasn't on when you answered me.
LADYLAWYER : Your attorney likely submitted the Motion To Dismiss under Rule 5 of the South Carolina Rules of Criminal Procedure, Brady v. Maryland, 373 U.S. 83 (1963) and United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971). A Defendant bases this motion upon the fact that the State has failed and/or refused to comply with Defendant’s discovery requests, that said requests are material to the Defendant’s defense, that the City was noticed that the requests were material to the Defendant’s defense, and that the failure of the City to respond to the Defendant’s discovery requests has prejudiced the Defendant and violated the Defendant’s Due Process rights under the 5th and 14th Amendments to the Constitution of the United States and Article I, §3 of the Constitution of South Carolina.
LADYLAWYER : If that is the case--and from your additional facts, it appears to be--then it seems like your attorney is asking the court to hear the motion on a sooner date than what it is currently scheduled for.
LADYLAWYER : If a Motion to Dismiss is made in a case like yours, it may just be that your attorney believes that the opposing side doesn't actually have the discovery s/he is requesting. If this is the case, your attorney will argue that without this evidence, a conviction is not possible, and thus, a dismissal is proper.
LADYLAWYER : If the court agrees to hear the Motion sooner, then the date will be moved up. At that time, you and your attorney (or just your attorney if s/he tells you that you don't need to be present), will go in front of the judge for oral arguments. The state will also be there and will be arguing as to why the case should not be dismissed. The judge can do one of three things: s/he can grant the dismissal, which means the case will be over; s/he can hold off on ruling until a later date; s/he can deny the dismissal and tell the City to comply with the discovery by a certain date or face dismissal of the case.
LADYLAWYER : If you have further questions about the Motion to Dismiss, please let me know. If not, would you please consider a positive rating at this time? It costs you nothing further to do but it is the only way the site will compensate me for my time. Thank you!
I will do that and thank you for the positive feedback... I will give you the utmost positive rating as you are very informational.. ONe thing though... hypothetically... worst case.... on a DUS what can a DUS be dropped to so that it's not a DUS... like I had a friend that had a DWI and she didn't blow so therefore she was like guilty but at the same time they couldnt say what she blew so her atty got her dropped from dwi to public intox... im thinking surely that my DUS could be dropped to something other than that so I dont have such a longer license suspension time... ya know? just asking what you mightr think... anything will help and thank you...!!!
LADYLAWYER : Hi!
LADYLAWYER : you can get it reduced down to an invalid license charge, which would simply be a traffic offense and an $84 charge.
LADYLAWYER : The prosecutor can do this even if there is other evidence against you wich would go to prove the DUS.
LADYLAWYER : If the prosecutor is unsure about a conviction, or of s/he feels like the Motion to Dismiss may be granted, then they may even offer you this plea before the Motion is heard by the judge.