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Are all Motions to Dismiss that arise under the Code of Criminal Procedure ultimately left up to the Judges discretion?

Colorado Springs, CO |

Is there a motion allowed for a lesser charge which may be more acceptable than a motion to dismiss if all fall to the final word of the Judge ?

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Best Answer

The prosecutor has a right to prosecute a person that is charged with a criminal offense. A defendant has a right to a preliminary hearing In serious charges, felony 1, 2, 3, or a felony with mandatory jail time. At a preliminary hearing the prosecutor has to show that there is some evidence to go forward to trial. If the judge is not satisfied with the prosecutor's evidence then they judge can dismiss the case. The prosecutor will decide what charges to go forward on. If the prosecutor feels that a person is overcharged, they can amend the complaint to a lesser charge. Likewise, a jury can determine that a person is not guilty of a high charge, but may be guilty of a lesser included charge. For example, a DUI charge could end up being a DWAI conviction.

Marijuana is against federal law. Federal law supersedes state law. A person could be charged and convicted for marijuana related crimes such as possession, cultivation, distribution, manufacturing, transportation, and conspiracy.


A judge does not have unfettered discretion. A judge who issues a ruling that is contrary to the law is subject to having the decision reversed for abuse of discretion.

You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.