Domestic Violence and Motions to Dismiss Case
At the Orange County Law Office of David P Schwarz we have fought for many cases to be dismissed in Domestic Violence actions in Superior Court of the State of California. Please contact our office at 949 8735 9266. We can also be reached via web and email at firstname.lastname@example.org.
A domestic violence lawyer can use P.C. 1538.5, where A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds.
Another method challenging a search and seizure was a motion under P.C. 995 to set aside the accusatory pleading. The indictment or information shall be set aside by the court in which the defendant is arraigned, upon his or her motion, in either of the following cases: If it is an indictment: Where it is not found, endorsed, and presented as prescribed in this code. That the defendant has been indicted without reasonable or probable cause.
A domestic violence attorney will educate you that two motions to dismiss can be used. A motion under P.C. 995 may still be used, either alone or in conjunction with a motion under P.C. 1538.5.
At the Orange County Law Office of David Schwarz we will educate how the trial courts will analyze doing the two different motions used to dismiss domestic violence actions. The problems arise in part from the difference in the trial court's scope of review in considering the motions. In ruling on a motion under P.C. 1538.5, the trial court acts as a finder of fact. In ruling on a motion under P.C. 995, it sits as a reviewing court and must accept the factual findings of the magistrate. Problems also arise when appellate review is sought, particularly when the trial court has failed to clearly indicate its ruling on each of the two distinct motions. To obviate these difficulties, the following procedures are appropriate:
A Domestic violence lawyer will explain to the benefits of having one motion granted over the other motion in the domestic violence proceedings. When it grants the P.C. 1538.5 portion of a compound motion, the trial court should consider dismissal on its own motion under P.C. 1385. This is the preferred remedy, because it gives the defendant immediate relief and the prosecution immediate appellate review.
If the trial court does not dismiss, it should consider deferring ruling on the P.C. 995 portion of the motion until the prosecution has exhausted or waived its right to writ review.
If the trial court does neither of the above, it may rule on the P.C. 995 motion immediately after ruling on the P.C. 1538.5 motion, but should scrupulously distinguish between its different functions on each motion. When the trial court simultaneously grants both a P.C. 1538.5 and a P.C. 995 motion, the prosecution may seek immediate review of both rulings by a single petition for writ of mandamus or prohibition.
At the Orange County Law Office of David P Schwarz we can fight for your rights against unwarranted domestic violence allegations or assist in helping you gain a restraining order. Please contact our office at 949 735 9266 or via the web. We can also be contacted via email at email@example.com.