Arizona

Criminal Procedure

Criminal Procedure

Rule 5.1 – Right to a Preliminary Hearing; Waiver; Continuance

(a)Right to a Preliminary Hearing. A defendant has a right to a preliminary hearing if charged in a complaint with a felony. A preliminary hearing must commence before a magistrate no later than 10 days after the defendant’s initial appearance if the defendant is in custody, or no later than 20 days after the defendant’s initial appearance if the defendant is not in custody, unless:

(1) the complaint is dismissed;
(2) the hearing is waived;
(3) the defendant has been transferred from the juvenile court for criminal prosecution on specified charges;
(4) the magistrate orders the hearing continued under (c); or
(5) the court made a probable cause finding at a bail eligibility hearing under Rule 7.2(b)(4).
(b) Waiver. The parties may waive a preliminary hearing but the waiver must be in writing and the defendant, defense counsel, and the State must sign it.
(c)Continuance.

(1)Release Absent Continuance. If a preliminary hearing for an in-custody defendant did not commence within 10 days as required under (a) and was not continued, the defendant must be released from custody, unless the defendant is charged with a non-bailable offense, in which case the magistrate must immediately notify that county’s presiding judge of the reasons for the delay.
(2)Continuance. On motion or on its own, a magistrate may continue a preliminary hearing beyond the 20-day deadline specified in (a). A magistrate may continue the hearing only if it finds that extraordinary circumstances exist and that delay is indispensable to the interests of justice. The magistrate also must file a written order detailing the reasons for these findings. The court must promptly notify the parties of the order.
(3)Resetting Hearing Date. If the magistrate orders a continuance, the order must reset the preliminary hearing for a specific date to avoid uncertainty and additional delay.
(d) Hearing Demand. A defendant who is in custody may demand that the court hold a preliminary hearing as soon as practicable. In that event, the magistrate must set a hearing date and must not delay its commencement more than necessary to secure the attendance of counsel, a court reporter, and necessary witnesses.

Ariz. R. Crim. P. 5.1

Added August 31, 2017, effective January 1, 2018. Amended Sept. 28, 2017, effective April 2, 2018.

HISTORICAL AND STATUTORY NOTES

Former Rule 5.1, relating to right to preliminary hearing, waiver, and postponement, was abrogated effective January 1, 2018.