If there is a failure of evidence, the case might be dismissed at the preliminary hearing stage. It might also be continued. As suggested, talk t your attorney. If you do not have one and are defending yourself, the question indicates that you need to have competent legal representation.
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You should speak to your attorney about this. Surely he or she is familiar with the court procedure at the court your matter is to be heard at. My guess is the case could be continued and set for another date under certain circumstances. But again, check with your attorney. Good luck with your case.
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First and foremost, if it is a simply an initial hearing or status type hearing the officer does not need to be present and thus such a motion would have zero merit and of course be denied. IF it is a motion-suppression hearing and/or trial -ie adversarial proceeding- then, yes, the officer must be present and such a motion could be prudent strategy.
In that instance, IF there has been no continuances on behalf of the defense issued and the time period from arrest date to present date is approaching -or has surpassed 1 year- than yes, move to dismiss. For the State has one year to try a misdemeanor in WV, barring any delays/continuances caused by Defense.
If however, the above scenario / status of case is not as outlined above, than the answer would be no. A) Even if the Magistrate denies the State's motion to continue (unlikely), the chances the magistrate grants the motion to dismiss with prejudice is slim to none. B) Which means the State could then turn right around and re-file thus getting you nowhere in the big picutre, w/ having alienated the court and state in process to detriment of client.
In short, it's a judgment call to which numerous factors must be considered, most of which is outlined above.
Harley O. Wagner, Esq.
West Virginia DUI Defense Attorney
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