After winning a 1538.5 motion where all the evidence used for the preliminary hearing gets suppressed. What is the motion that needs to be filed in order to have your case dismissed or a review of the preliminary hearing transcript?
1 Answer from Attorneys
You're not out of the woods yet!
When the court grants a defendant's suppression motion, the court may sometimes dismiss the case for insufficient evidence under Penal Code, section 871. The prosecutor may, however, refile the complaint or seek an indictment. (Pen. Code, § 1538.5, subd. (j).)
The prosecutor may also move to reinstate the complaint. (Pen. Code, § 1538.5, subd. (j).) Also, if the court grants a defendant's suppression motion, but the case is not dismissed and the defendant is ultimately held to answer at the preliminary hearing, the prosecution is bound by the court's ruling unless it requests a special hearing within 15 days of the preliminary hearing. (Pen. Code, § 1538.5, subd. (j).)
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