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If someone's pulled over in the state of North Carolina and the cop happens to notice that there may be a possibility that drugs in the car and has two drivers step out and happens to find a piece of paper folded up in the car in the console center front of which the car belongs to the driver and the passenger is getting a ride home both get charged for  schedule 1 schedule 2 and the piece of paper that was folded up in the console was not heroin as what the officer says that it is and when tested on the road side that turn blue the driver says that the substance in the paper was a crushed up stacker 2 pills so at that point if the roadside was done and they had no more powder substance to test to send off to the state lab does it warrant dismissal of charge or does the roadside indicate enough evidence for it to hold up in court for the courts to convict the driver . An if they offer an reduced charge because of the lack of the main charge because no real evidence the powder to make the schedule drugs stick? Or dismiss charge ?

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The fact that no drug was left to test at a lab and none for the defense to test may be a problem for the state. The type of test done, how it was done, and the qualifications of the officer to do the test would be important factors, too. Both the passenger and driver ought to consult an attorney and see if there is a possibility of having the test evidence suppressed and to see what other defenses might be available.

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The problem I got is that this is a small little back hole County and they sorts  do what they want to I believe they sent it off to state lab but lawyers saying if the state  don't have the real drug results to prove the charge them they will reduce the felony to a misdemeanor the power to charge. But my thinking is if they're charging him with a felony then why would they even think about dropping the charge to a lesser charge because they're right no evidence maybe but the other main factor is that's where I think it should be thrown completely out of court at that point lack of evidence. Am I correct or not because the lawyer saying that he needs to take the lesser charge. I say bullcrap. Any insights can help and what happens if my lawyer does not want to do the correct thing and ask for dismissal ? And also what happens when my lawyer don't want to do what I'm telling him to do when it comes to evidence like the drugs not being real or not enough to test what does a client do? Reporting someone to the bar for that is not even the hand slap

 

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Charging a crime and proving it are two different things.  If there is probable cause to believe a crime has been committed, the case can proceed to trial.  If there is not sufficient evidence presented at trial to prove the crime beyond a reasonable doubt, the jury or judge can acquit the defendant.  It is not usually possible to have a charge dismissed prior to trial on the factual basis that the prosecution will not be able to prove the charge at trial.  That is not the way it works. 

 

The lawyer is doing the right thing.  At some point the prosecutor may move to dismiss or nolle pros the case.  But the lawyer cannot force him to do so.

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RetiredinVA, I agree with you but I don't know how court gets run in your county of state that you live in in Virginia since y'all are commonwealth y'all may do things differently being in the small little good old boystown thing they have up at the courthouse goes like this the ADA dismisses at least 50 cases before the judge even comes in and sits down at the bench no judge in courtroom and the DA's dismissed several cases of district Court that happens every day also they do not do things by the book up there including the lawyers which I've also noticed regardless of what county you're in will not do hardly anything for a client paid or public defender it just makes the matter of what little bit of work they're going to imply to try to help you out they're not going to do no more than what they got to a lawyer I found out is more the less The worst   criminal if us all well include the DA of which has immunity which is a crack joke anyways.  Back to the point of the matter, why would the state even go as far as superseding an indictment and cost in the county more money if they know by chance that it is in fact not a controlled substance of which they indicated it was or that their  wasn't enough to test why would they not at that point dismiss and why would my lawyer be telling me that they would move to take a lesser charge if in fact it was not purse a scheduled narcotic I think that is a sucker way I'm still having the defendant being charged guilty of a crime of which what's incorrectly enforced of which it's a waste of taxpayers money as well as the defendants time and loss of work and why would a state charge for people in a car the same crime as to one bag of dope when nobody spoke up to ownership of it why does the state get for individual convictions when it should only be one that should end up with the charge that's like saying the state implies charges for people that wasn't involved or that it didn't belong to the police's job to investigate and find out who's belongings it is not the defendants to snitch or tell it on someone to help the state incriminate .

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I'm not going to even try to read all of your unpunctated, stream of concious, message. But in the first few words you spelled out how the criminal law procedure works.  Even in small towns.

 

Some time at or before the trial date, the prosecutor sits down with the file and officer and goes over the evidence.  Unless the charge is a serious felony the prosecutor may not have seen or heard anything about the case before that point, which may be the day of trial.  It is at that point that the prosecutor decides whether to go forward or not.

 

Where I practiced the misdemeanor cases were handed to the most junior prosecutor literally the morning thay were set for trail.  Minot felony cases might be handed to the prosecutor days before trial.

 

Believe it or not, your case is not the only case that is pending in the prosecutor's office.  That means the prosecutor in your case is not going to dismiss the case based on lack of evidence until the last minute, if at all.  There is nothing your lawyer can do about it.

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