The Preliminary Hearing (Part 3): When It Must Be Held

Orange County criminal defense lawyers

When someone is arrested for domestic violence, drug sales, or any other felony offense, they have the right to a preliminary hearing within ten court days of the arraignment or of the time they enter a plea, whichever occurs later. (California Penal Code Section 895b). Moreover, they have the right to competent representation by a criminal defense attorney. Court days doesn’t include weekend or national holidays. This ten-day rule applies whether the person arrested is in custody or has been released on bail.

The ten-day rule can also be “waived”, which means that the defendant gives up the right to have the hearing within ten days. Both the defendant and the District Attorney must waive the right. Also, a judge can set a preliminary hearing beyond the ten court days if the judge finds “good cause” to do so and states that good cause on the record. In most cases, the defendant’s Orange County criminal defense attorney will advise the defendant to waive the right if the defendant is out of jail. This gives the domestic violence Attorney in Orange County more time to prepare for the preliminary hearing—review all the reports generated in the case, interview witnesses, and review physical evidence such as videos or audio recordings. At any rate, the law requires that the defendant’s defense lawyer have at least two days to prepare for the hearing.

If the preliminary hearing does not happen within ten court days and the defendant did not waive time, then if the defendant is in jail the case must be dismissed if there is no good cause for the delay. Clerical errors or neglect by the D.A. does NOT constitute good cause. If the defendant is not in jail, the case will only be dismissed if the defendant’s Orange County drug defense lawyer can show that the delay prejudiced the case. This is usually difficult to show and an example would be that evidence has been lost or a witness has disappeared.

If the defendant does waive the right to a preliminary hearing within ten days, the hearing still must be brought within 60 calendar days. Again, the defendant can waive this right too. If the 60-day rule is violated the court MUST dismiss the case. If the 10-day or the60-day rule is violated, the defendant’s criminal defense lawyer should bring a Penal Code Section 995 motion. If that motion is denied, the defense attorney should file a Writ Of Prohibition. It is unwise to wait until the appeal to challenge the error because on appeal the domestic violence Lawyer in Orange County must show that the delay caused the defendant prejudice.

If you face felony charges for marijuana sales, domestic battery or any other felony, call the Law Offices of EJ Stopyro today at (949) 559-5500 for a free consultation with an experienced Orange County criminal defense lawyer. Or visit our website at www.EJEsquire.com.