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Hs11364

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SawNLogz

Junior Member
In California I was charged with HS11364 Poss of opium pipe...... At pre-lim no questions were asked by DA regarding the nature of any residue and no lab tests were conducted. Also no questions were asked regarding any possible legal uses for such a device. Regarding that count the judge did not hold me to answer in Sup. court. He also did not expressly dismiss the count, so the DA filed it anyway in Sup court. I asked my court appointed atty to file a 995 motion to dismiss based on the resaons above and he refuses. My first question: Does my atty have an obligation to file the motion at my request? If not, what are the mechanics involved with me filing it myself? Is the lack of a foundation for what any residue in the device might be (no testing, no questions of the officer, etc.) good reason to file a 995 motion? Are there legal uses for such a device which make its sale in the first place legal?
 


CdwJava

Senior Member
This charge is most often applied to a glass pipe of the type with an unfiltered bulb at one end and a narrow neck which the user inhales through.

No, a test for residue is not necessarily required as it is not an element of the offense.

And, no, there is no other known legitimate use for these pipes. There is no filter of any kind, so tobacco can't be smoked in it ... and it's not a straw for drinking soda ... nor is it a spoon or even a cup.

Your lawyer can file frivolous motions if you have the money to pay him to, but he is under no legal obligation to file useless motions and waste the court's time.

- Carl
 

garrula lingua

Senior Member
A Preliminary Hearing is to prove that a Felony criminal offense occurred and the defendant is the correct person charged.
The felonies are (typically) held to answer (substantiated - go on to arraignment, then trial);
any misdemeanor charges such as a smoking device (H&S 11364) will be substantiated by the testimony (a much lower standard) and are carried forward with the felony(ies)- they are not subject to a 995 motion (that is for felonies).
If you're worried that the residue in the pipe can be scraped and tested and result in another felony charge, it's possible, but unlikely if your pre-lim is
over.
 

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