Coble Law Group
Daniel: well, first and foremost, a DUI consists of the Corpus Delicti. Now that's a Latin phrase, which means the body of the crime, which is the elements that the state has to prove with any crime. The state, it has to prove beyond a reasonable doubt, every element of that charge. So if it's a burglary, you have to prove that someone broken and entered into someone's dwelling or business with the intent to commit a crime therein. With a DUI, there's certain elements that the state has to prove.
And that's the beginning, first and foremost, in evaluating a DUI case. I write about it in my book because there's a lot of case law and interpretation to it, but basically it's someone has to be driving, within this state under the influence of alcohol or drugs, and that influence has to materially and appreciably impair their faculties to drive.
Now, each one of those elements has specific requirements and has to be proven beyond a reasonable doubt to the jurors. Now, what is the prosecutor looking for in each one of those and how do they get it to the jury? Well, when I was a young assistant solicitor and I handled DUI cases every time you had a checklist and you made sure that you, that you accomplished each one of those and you checked it off.
As you went through the trial. Now there's more of a technique and an art to it as you get more experienced so that there's a flow and that the jury can pick it up and see it. And on the flip side, the defense, you always gotta be prepared to make sure that they do check off each one of those. Otherwise, the case could be hampered, and the jury might not even get it to deliberate on it. When I was a magistrate judge and presiding over DUI, I would often get motion for directed verdict because one of those elements wasn't proven during the state's case in chief. So throughout my book, I'll, I focus on the very beginning of the first chapter is the Corpus Delicti over DUI. It's important that those elements are proven and it's important as a defense attorney to go through the case and to see what's there and what's not to evaluate it.
So, you know what you're looking at from the very beginning.
Daniel: Now, what happens when the videos, both the incident site and breath test site they're complied with, they followed the statute, everything they checked, all the boxes, law enforcement did everything they were supposed to. So you have the video of the incident site. You have the video of the breath test site, and you have the results for that.
Well, just because they complied with that doesn't mean that that evidence automatically comes into trial. You still have the rules of evidence that must be complied with now. I've written several books on the rules of evidence articles. I even blog about the rules of evidence at everydayevidence.org.
And so I'm very familiar with how do you actually get those results and those videotapes into evidence and how do you object and keep them out. Even if the statute is complete. Well, these, the videos, just like any other video in any other case have to comply with the authenticity, hearsay, best evidence rule, and many other rules that come into play with any evidence also with the with any breath test results, not only of the rules of evidence, but you also have several constitutional issues that could arise, whether that's the Fifth amendment or the Sixth amendment.
And the Fourth amendment is certain things to think about with the results they don't automatically. You have to be, you have to know the rules of evidence, be very familiar with specific rules of evidence. And so not only can you make those objections, but if you're a prosecutor, you need to anticipate what those objections will be.
When I was a magistrate judge, I always enjoyed watching the solicitor attempt to enter something into evidence. I knew what was coming. I knew the objection and sure enough, the defense attorney jumped right up. Sometimes the prosecutor will be able to have a rebuttal and they'd be able to argue back and.
Sometimes they were caught off guard, but always enjoyed seeing those evidentiary issues and those objections. And in my head, I'm thinking what I would do, what I would say. But you know, that's not the role of the judge. The judge is there just to call the balls and strikes. So no matter what happens with the statute, whether it's complied with, or not comply to with the evidence still has to be entered into introduced and properly admitted before the jurors can hear it.
DUI: Exceptions to Video Requirement
Daniel: what happens if there's no videotape the incident site for whatever reason is that the officer forgot to turn it on the car wasn't working or everyone's stepped outside of the video and you weren't able to see what happened, or you only saw a partial where there's something called 2953(B) that talks about exceptions to the video requirement.
These lists out for very specific exceptions to the video requirement. And some of them require an affidavit from the officer, some don't but even so you got to make the argument that it applies under one of those exceptions. If there's no videotape, I've seen officers make a very good arguments about why there wasn't a videotape, wasn't their fault.
They acted reasonably. And therefore the exception applied. I've seen some other times though, where they didn't have the affidavit and the case was thrown. It's all going to depend on the case, but there are exceptions. If there isn't a video it's going to just depend on, if it falls under 2953(B)
DUI: Incident Site
Daniel: now the biggest issues with DUI cases usually happened right after the stop. This is called the incident site. There's a very, very specific statute that has certain requirements about what must be recorded, who must record it, and what must be told to the defendant. In my book, the biggest chapter is chapter three, about the incident.
So, this is where you'll see 2953, which is one of the South Carolina statutes, which requires recording of certain things at the incident site. This can be the Miranda warning, field sobriety tests, the arrest, the probable cause determination, a lot of issues. And throughout all the cases I've seen both as a prosecutor and a magistrate, this is where all the issues arise. But what you see is you see a lot of law enforcement officers are trained on all this statute, so they know what to do, how to do it and properly record it and turn that evidence over. Now, the arresting officer has to record the incident site. They have to record certain things, including the field sobriety test.
One issue with the field sobriety test, though, is what do they have to record? There's a case called Gordon that talks about the HGN and this discusses, how much of the face, the eyes, what does that video actually have to record? Now? I've reviewed a lot of video tapes. I've seen a lot of DUI video tapes and everyone records differently.
Some don't record as well. Some are the older version cameras. Some are the new updated HD cameras. It's all going to depend based on that specific. But just know the incident site is where most of the issues arise, whether there's a violation of the statute or there's compliance with the statute.
Daniel: now, one thing that does have to be recorded at the incident site are the Miranda warnings. Miranda warnings are what you hear all the time on TV. You've seen it before, throughout your life. You know, you have a right, the right to remain silent and you have the right to an attorney. Anything you can say, anything you say can and will be used against you.
Those are your Miranda warnings and law enforcement has to give that to anyone who's. Who was in police custody and being interrogated. The DUI statute specifically requires the Miranda warnings to be recorded. But specifically, specifically that to be shown. Now, what does shown mean? Does that mean video and audio?
Does that mean just visual doesn't mean partial some of it some not, well, there's a recent case that helped interpret that and shows that there has to be strict compliance with the Miranda. That's something you're going to have to be looking for about on your videotape, what was recorded and how was it recorded and make sure that it was preserved.
And even if the statute is complied with, you got to remember, Miranda is a constitutional issue. So a violation of it, even though the statute might be complied with it doesn't mean that Miranda might not have been violated. And there's two different consequences there, whether it's just suppression or whether it's dismissal, it's going to depend on your facts. And the specific video what's on there, what's not, but the Miranda warnings are very important to understand for your case.
DUI: The Stop
Daniel: most DUIs happen when someone's driving a vehicle and they're pulled over on the side of the road. Now, sometimes there's vehicle collisions and the law enforcement shows up after that, the car accident sometime there are roadside checkpoints. But most often someone's driving and they're pulled over.
That's how a lot of DUIs. The second chapter of my book focuses on the stop. And so what is the reason someone is stopped? What does law enforcement have to witness? What do they have to see? Well, basically all the United States Supreme court and our Supreme court has said that law enforcement needs reasonable suspicion to pull someone over for any traffic violation.
Now, oftentimes we hear probable cause and that's what usually an officer has to initiate a traffic stop. If they witnessed someone violate a traffic ordinance or a traffic violation, some type of statute, that's probable cause to pull the vehicle over now probable cause is higher than reasonable suspicion.
So if an officer has reasonable suspicion, they can pull a vehicle over now, what is reasonable suspicion? Well, every case is different. There are a lot of facts that will go into that to determine but our Supreme Court and the United States Supreme. Have given a lot of case law, a lot of scenarios that show what it takes and the other book I've written search and seizure in South Carolina, we go through in much more detail.
What is reasonable suspicion and what is probable cause, but when it starts, when it comes to a DUI, the first case first issue you're looking for is, was there reasonable suspicion or probable cause that's going to take a lot of experience to determine what issues are there what's missing. What did they do right? What did they do wrong? But the most important thing is understanding the Fourth amendment protection. When someone's vehicle gets pulled over that there must be at least reasonable suspicion. And sometimes that's not even enough, it depends on what the officer was, pulling him over for what they're testifying to, what they witnessed and what they saw depending exactly what standard is.
DUI: Breath Test
Daniel: now what happens after the incident site? Well, most often defendants are taken to their local jail where they have a breathalyzer site test. That's where you blow to see what you have, what your alcohol content is. Some people do, some people don't they refuse to blow and their consequences that.
But law enforcement has certain requirements about what they have to videotape at the breath test site. It's very similar to the previous to the incident site. And again, if there isn't the video of this 2953(B) those exceptions apply as well. They're going to be a little bit different since it's not on the incident site and the 2953(B) is kind of written towards incident site, but it can, it can fit with the breath test sites.
You needed to determine if there is a video or not a video, if it's not in compliance, does the exception apply? And if an exception does not apply then as a dismissal or is just the evidence suppressed or big issue with that is 2953 versus 2950, which is implied consent. And the breath test site implied consent is different than the breath test site.
There's similar requirements about what the state must do. If someone is pulled over and charged with DUI implied consent, essentially, when you were driving, when you got your driver's license, you have given consent that if you are pulled over and there's probable cause that you are driving under the influence, you have given consent by taking that license to give a breath sample or blood sample in certain situations, if you refuse, then there are consequences.
Now the state has certain procedures that they have to follow with implied consent. And if they violate that. Is that the same thing as a breath test site by violation? Well, according to the 2950 and 2953 and the case Suchenski they're different. So that's going to be a big dance between suppression and dismissal.
When I was a magistrate judge, a lot of times those issues got conflated. That was another big motivation in writing this book to was help to explain that there are differences between these statutes that they're not the exact same, even though they have very similar. You need to find out which section you're in which statute you're in to determine what happens.
If there is a violation. If law enforcement did not comply now, on the other hand, if they did comply, which they're trained to do, they go through lots and lots of training and they have technical equipment elk kind of make it run as smooth as possible. Then you need to move on to the next step. Because that means that could mean your case will end up in front of a jury and need to be prepared to try the case.
DUI: Warrantless Searches
Daniel: over the past decade or two, the United States Supreme court has discussed several DUI cases and these cases usually have to do with the Fourth amendment. So a blood draw or a breath test. Those are searches under the Fourth amendment. So if someone refuses, then the Fourth amendment is going to come into play about whether they gave consent.
Whether it exception applied, whether a warrant was needed. The United States Supreme court has ruled on this frequently. And so I want to read from my book just recently, some of the updates that they've given chapter five discusses, warrantless searches. So this often arises when law enforcement arrives on the scene and there's a car accident and the driver's either unconscious semi-conscious or a refusing, a blood test or, or breath.
That's where the Fourth amendment comes into play. And there's usually not a warrant. Usually law enforcement does it right then and there or the hospital and they don't go and get a warrant. The Supreme Court has held several cases on this. I just want to read briefly the cause there's several important ones that that can affect every case.
First is Missouri, Missouri vs. McNeely. This held at warrantless blood test. Depends on the totality of the circumstances. All right. Burchfield vs. North Dakota warrantless breath test is okay for search incident to arrest. However, warrantless blood test is not in this case, the Supreme Court differentiated between a breath test and a blood draw.
They talked about how much more evasive and invasive a blood draw was, where they're actually putting a needle into you and removing blood from. It rises to another level, more than a breath test, you have Mitchell vs. Wisconsin which held an unconscious driver qualifies as an egg exigent circumstance to get a warrantless search.
This is a recent case where they talked about a driver when they arrive on scene and they take them to the hospital and the driver's unconscious, they said that his exit circumstance to get a warrantless blood draw. And one of the most well-known cases of the Schmerber vs. California. We see those both in general sessions for DUIs, but for a whole wide range of any type of a buccal swab, DNA, swab, DNA testing and that's warrantless blood taste testing depends on the totality of the circumstances and what you'll see with any Fourth amendment analysis.
Nine times out of 10, the courts are gonna look at totality, the circumstances that's a legal term, that's a legal definition. Which essentially means they're gonna look at the facts. They're going to look at prior case law. If you look at my books, Search and Seizure in South Carolina, I go through a whole lot of South Carolina case law and probable cause totality of the circumstances, reasonable suspicion.
So you can see prior fact cases and how the courts have ruled and the court tries to follow their precedent or follow their prior rulings, so that they're consistent. But when it comes to warrantless search, The United States Supreme Court and our South Carolina Supreme Court, they speak on it often.
And it's a very important issue for any Fourth amendment issue.
DUI: Deconstructing the DUI
Daniel: well, I wrote the first edition of Deconstructing the DUI back in 2018. And the purpose of this book was to give young prosecutors, young defense attorneys, an overall understanding of how a DUI works. Particularly when I was a magistrate judge, what I was saying. Driving under the influence, the charge, the conviction, it's very complicated.
And there are a lot of moving pieces. You have a lot of case law, a lot of statutes and different interpretation of both. So in order to prosecute these cases and defend them, it takes a lot of work, a lot of experience and understanding what the issues are. And there are different books out there, but what I wanted to do with Deconstructing the DUI was just that deconstruct it.
So when a DUI normally takes place, there's an a stop of a vehicle. There's the arrest, there's the breathalyzer, the field sobriety test, implied consent there, different stages throughout the DUI. And so what I've done in this book is break down each stage. I want readers to understand what the law.
What you're looking for as a magistrate judge, I was able to have a bird's eye view to see what the prosecution was doing, what the defense was doing. And most importantly, what the jurors were seeing and hearing and what they really held on to his book. I was proud to write it and I actually updated it just this year.
It's the second edition. There's been some new case law, particularly on Miranda warnings and what is required by law enforcement. And so I'm constantly updating it, keeping it for myself. So I can, I can be ready to go in court and always have the law and authority behind me with the arguments you made, because it's always going to be fact specific. Every case is different, but it's important to be prepared and know what the law is. So you can give your best case to the judge.
Bond Court Videos
Bond Court Settings in Columbia and Richland County, South Carolina
Daniel: the question that often comes up is what type of bond can a bond court judge set and what charges can a magistrate or municipal judge not set by? So there's a handful of charges that if a defendant is charged with these crimes of magistrate judge or municipal cannot set that bond, they have to send it up to general sessions in a circuit court circuit court.
Judge must set that bond. That is anything that carries a life sentence or punishment by death. So murder criminal sexual conduct in the first degree with a minor and sometimes burglary first. If you're charged with that, then you're going to have your bond set by a circuit court judge. Whenever that may be, it might take some time.
You've got to file the appropriate motion. Now there is an exception with burglary. First degree, burglary first carries a maximum of life in prison, 15 to life. And if a solicitor wants it set by the bond court judge at a summary level, that it may be set there. However, the solicitor's office requests that it'd be sent up to general sessions and a certain court judge.
Then a magistrate judge, we would have no choice, but to send it up and just tell the defendant their rights. And the case goes on up in a circuit court, judge has to S set that bond now. So what goes into a solicitors through their mind as they decide whether or not it should be set up or, or a magistrate judge had said it?
Well, there gonna be a lot of factors when I was an assistant solicitor at bond court, we often saw burglary. There's different fact scenarios and a lot of different input and thinking goes into whether it's victim input, law enforcement prior record, a lot of factors go into deciding whether burglary first should be set up in a bond set at general sessions, or just go ahead and have a magistrate judge set that bond.
And that's going to be a big, a big impact on the defendant because if if a bond is set by the magistrate judge and their bond is set right then and there within 24 hours. And if their bond isn't denied, then they could potentially make that bond to get out. But if it's sent up to the circuit court, then it's going to take some time, whether that's a few weeks or few months before a circuit court judge sets that bond a lot will depend on the facts and the circumstances.
When I was a magistrate judge, whether I denied bond or set bond there's a lot of factors that come into play and it's not an easy decision, you know, it's something a lot of input goes into and you got to think really hard about. But it's important that you understand what can and cannot happen if you're charged with a crime that carries life in prison, including burglary first .
well, bond court and bond settings moved quickly. This is the first step in the process and the bond court judge only wants to know a few things. They're not going to want to know the entire story, all the evidence, all the issues they're looking for. Essentially two factors, flight risk and danger to the community.
Now at this hearing, the defendant is allowed to speak. But when I was a magistrate judge, I always warned them. I said, remember that everything you say is, can be used against you. Everything's being recorded. There's likely an assistant solicitor right there in courtroom, listening to everything you say.
So I'll always give him a heads up, not to say anything that could damage their case. All I's a magistrate judge wanted to know was danger to the community and flight risk. Now, a lot of factors go in to determine that besides just saying, I'm not a flight risk, I'm not a day. The judge is going to want to know something more specific, something to set their teeth in.
So they feel comfortable setting a proper bond. The victim will have a chance to speak. Now, a lot of times victims would like to speak a lot and say everything on their mind. They give the entire history, but as a bog court judge, we don't want to know everything we want to know about this case specifically, and about the flight risk and danger to the community.
The assistant solicitor will give their opinion and that carries a heavy. Well, the assistant solicitor asked for a certain bond. The judge is going to give that a lot of credence and a lot of authority. So it's important that if you have a defense attorney or, or someone on your behalf, if they can speak to the assistant solicitor, likely they might not be able to, but if they can to get an idea to gauge where the assistant solicitor is.
I know when I was at assistant solicitor, I would talk with defense attorneys and you know, try to get some input. We might disagree, but it kind of set the standard about what I was looking for. To get an idea as a bond court judge, when I hear law enforcement or the solicitor's office, what their input is it gives a good marker about where I might set that bond.
So you want to make sure that on the front end, that whatever they say is lines up with what you're, you're ready to present. This is the first time the solicitor's office is going to lay eyes on you as a defendant in this case. So you want to make sure that everything is presented, correct. You want to make sure that the victim what they're saying is appropriate, that, that what the judge hears is the best picture of you as a person.
So a lot of factors go into deciding throughout this process, it can be quick. It can be informal. You can feel like you aren't getting your voice out, but there's a reason for that. And that's what I would say as a magistrate judge, we're here just for those two factors. So it's, it's what you want to expect at your bond set.
And you want to make sure that you get everything out that you want to .
all right. So there's some charges that a bond court judge may deny bond Dorn, or they may set bond, or they have discretion. These are called violent crimes. They're found under South Carolina statute, 16 dash one dash 60. There are whole host on there. Dozens of them where a magistrate judge may say.
I'm not sending bottle this, I want a circuit court judge to set bond on this, or they may say I under the facts and the circumstances I'll go ahead and set bond. Now that's going to be a big difference between how long someone has to sit in jail. They can either have their bond set within 24 hours or they have to wait until the next time the general sessions is, is in session and a circuit court judge sets that bond.
So what are these crimes? So they include. Assault and battery high and aggravated nature, burglary, second degree domestic violence in the first degree and many others, but there's a specific list. So if you're, if the crime that you were charged with is a violent crime, there's a chance that you might have bond denied.
Now, why would a judge either set bond or not set bond? Why would they say, I don't want to set it. I'm gonna let a surrogate court judge. Well, when I was a magistrate judge, I would look at a lot of things. A lot of factors come into play through my head, as I was deciding whether or not to set bond on the violent crimes.
This includes prior record victim impact victim input the law enforcement statements, their input, as well as the solicitor. You know, oftentimes when I was an assistant solicitor, I would make a recommendation to the judge about whether bond should be set or not. And how highest. I would often confer with defense attorneys as well about what my thinking was about why I wanted bond to be denied or why I was okay with it being set down and magistrate level.
It would be a lot of factors that come into play with whether or not a bond is set. And it takes experience to understand when you, when you pick up that file to see where the weaknesses are, where the appropriate arguments are, so that bond can be set. But it's going to come down to every individual case.
And the fact that. To determine whether or not a violent crime will have their bond set or denied. .
well, the bond court process always starts with an arrest or whether that's on a uniform, traffic ticket or an arrest warrant. The law enforcement officer will take the defendant to the local jail. Now here in Richland county, we have Alvin S Glenn detention center, and that takes anyone charged by a state official.
They come down to Alvin escalated detention. And they wait for their bond to be set. So what to expect during this process? Well, it, whether it's a uniform traffic ticket, which is where they just fill out the basic information or an arrest warrant, where they get a judge to actually sign it before they serve it on you that you'll be given that information.
You'll be handed that piece of paper and you'll be most likely taken it. Alvin S Glenn, with that information. Now, sometimes if you are arrested right away, The officer will arrest. You, read you your rights, take you into Alvin escalation had the arrest warrant typed up there and signed by a judge. And then your bond is set.
The bond process could take awhile. If you are arrested by Richard county, Sheriff's deputy or another law enforcement agency that falls within the county of Richland county magistrate was set your bond. Now I said hundreds of bonds before if not thousands. If it was a law enforcement agency under the, the county Sheriff's department, Benedict USC Columbia police department, they have had their own separate bond court until recently the Sheriff's department and the magistrate judges have taken over that for now.
It could change, it could go back to two separate bond courts, but as, as of now a Richland county magistrate judge will set your bond. You'll have to wait a while. You might have to dress out, which means put on a uniform. Or you might be in your regular clothes that you were came in on. It would depend what time your bond is set.
Now your bond could get set overnight. You could be held over til the next day. The bond must be set within 24 hours. Now, are there some exceptions of that? Yes. If there can't be contact with the victim, if there are other pending charges and the hold is put on you, it can be dragged out. It shouldn't happen.
And you should have an attorney to make sure to call and make sure your bond is set within the appropriate amount of time. After your bond is set, you don't immediately get out. Whether it's a surety bond or a PR bond they still have to file the paperwork and process all the paperwork, not just for you, but for all the other defendants who are had their bond set as well, that can take awhile.
It shouldn't take over four hours according to the statute. Now again, does it sometimes take longer than that? It can having an attorney call to make sure that the paperwork is properly processed is important to your case. Being an Alvin S Glenn detention center, isn't a easy situation, but the most important thing is that you get the appropriate bond set.
Preferably if you can get a PR bond set, if it's appropriate in your case, that way you can just sign your name to the paperwork and just promise to show up your court date. If you're going to get a surety bond, you want to make sure you can afford it. Whether it's $5,000, $50,000 or 500,000. You want to make sure it's affordable and you can talk with an attorney or the bail bonds, bail bondsman company about that, about that process for making sure you can get a bond you can afford, but there's also the chance that bond could be denied.
Under the South Carolina law, some, some violent crimes can have bond completely denied. That means a magistrate judge will not set a bond. They'll read you your rights, give you your paperwork, lets you sign some stuff. But you'll go back to jail back to the cell and you'll wait until your bond can be set by a general session circuit court judge.
Now, when will that be? If your bond is denied? Well, that's going to depend on when you can get in front of that judge and that motion be filed by an attorney. It's all gonna depend on a lot of circumstances and it can take some time. It's important to understand that that this process is not easy.
It's not quick, but you want to do it the right way so that you can get the most appropriate bond set for your case.
what's the difference between a PR bond and a surety bond? Well, a PR bond also called a personal real cognizance is essentially where you sign your name and you promise to show up to court. Now, under state law, everyone is entitled automatically to a PR bond unless certain factors come into play danger, the community.
That's what, we're also what the judge is going to look for. And flight risk is the defendant a flight risk, or they're going to show up to their court date. So as an attorney, we have to be ready to argue to the judge and explain to the judge, you know, why the client is not a flight risk. You know, how long have they lived there?
A lot of different other issues that come up, things you can present to the judge to, to help explain your case. Why the defendant is not a flight risk. Also while they're not a danger to the community. That's the big one. When I was a magistrate judge setting bonds, it was always, is this person a danger to the community?
Are they going to get rearrested and reflect poorly on the bond? I've set? So determining whether to set a surety bond or PR bond, many factors will come into play. And it's important to get those to the judge and in front of the judge in the most coherent and appropriate fashion. So that that judge is comfortable either setting a PR bond or setting a low surety bond, because at some point, if the judge doesn't decide to deny bond, they're going to set bond.
You know, if they set $150,000, 250,000, sometimes that is essentially bond denial for some defendants because they can't afford that. So you want to make sure that that all the factors, all the history, all the appropriate shoes are presented to that judge so that they can make the best determination. In setting the bond.
Now there's no guarantee about what they're going to set. It might depend on the day. It might depend on other factors that come before them, but it's the most important thing that you have the proper representation so that you can please present your case right then. And there is your first interaction with the criminal justice system, put your best foot forward and try to get the best and most appropriate bond in your case.
Preliminary Hearings Videos
Preliminary Hearings in Columbia and Richland County, South Carolina
Daniel: at the preliminary hearing. The state has the burden. That means they have to bring the witness to testify about the probable cause much like an arrest warrant. The officer takes a stand is sworn it gives an oath to tell the truth. Now, which officer is this? Well under 17-23-162. It's either the affiant of the arrest.
Or the chief investigating officer, they're the ones who have to testify. If they don't show up, then the case will either be continued or dismissed. Now it will depend on who the judge is and how that argument is made to the judge about whether or not the case is dismissed or continued. But assuming it is not dismissed the next time that officer has to show up.
Now, the question will be is first off, who is the. Now, if you look at the arrest warrant and you'll see the API its name, where they signed, where they swore probable cause, or you could see their name typed in there and scratched out in someone else's name written on there. Now this happened all the time.
When I was a magistrate judge where the transport officer would swear an oath to the probable cause. It is hearsay, but an arrest warrant is allowed to have here say just like a preliminary hearing, they're allowed to testify to hearsay. So the affiant will likely be the person whose name is written on that warrant.
Now what if they don't show up? Well, then it has to be the chief investigating officer. Now nowhere is that a phrase defined anywhere. So it's going to be up to the magistrate judge or summary court judge, whoever that may be to determine is this the chief investigating officer. There'll be a lot of factors that will go in there for a judge that goes through their head to determine, is this the appropriate officer or the appropriate witness?
I remember when I was presiding or a preliminary hearings as a magistrate judge, it's not always clear. Sometimes it's a gray area, but those arguments had to be made so that the proper witness is there to testify to make sure that there is probable calls.
what should you expect at your preliminary hearing? Well, a prelim is just like any other court hearing. There'll be a judge prosecutor, defense attorney, other people in the courtroom. But it's a little different because at a preliminary hearing, it's just the state putting up their case. So the prosecutor will call their witness, which is either the affiant on the arrest warrant or the chief investigating officer.
And they'll ask that officer you know, officer Smith, will you please state the probable cause for the arrest of John DOE? At that point, the officer will testify under oath to the facts of the case, to what happened while during his testimony, he would need to not only give the facts. But those would need to line up with the elements of the underlying charge.
So if he misses an element or any part of the jurisdiction the case could have some flaws doesn't mean they're fatal. As judges, when I was a judge, we were look for certain things and some things are forgivable. Some things were fatal to the case, but the officer needs to testify to the elements of the crime.
And those need to line up with the facts presented after the state gives their side of the story. The defense can cross examine. They can ask questions of this witness, the defense doesn't get to put up a witness or get to you know, get into discover evidence. At this point. This point is just for the state to present up, present some of their evidence just enough for probable cause after the state rest, after the defense has done asking any questions at this point, the defense may make a motion to dismiss.
Or motion to remand or motion to to lower the charge. It all depends on the facts and circumstances and quite frankly, who the judge is and which court you're in that all goes into the motions of the end. Every case is fact specific. But what to expect, it's just like a normal court proceeding.
And it's just the beginning of the case.
preliminary hearings. What are they? And what do they mean to your case? Well, a preliminary hearing is a probable cause. Determination whether or not PC exists on the arrest warrant. Now throughout the criminal process, it starts with either uniform, traffic ticket or arrest warrant. Then defendant goes to jail.
Bond is set, and then from that point on the case can get kind of slow. But there, during this process, you have a preliminary hearing where you can request that. And what that means is that a judge will determine and make sure that probable cause exists for your case. The thinking behind this is that.
The criminal justice system, we don't want to keep defendants in jail and detained if there is a PC for their case. And we don't want to have to wait until a jury trial, which could be months, if not years, if there is no PC. So it's a safeguard put in place for summary court judges. Now, whether that's a municipal judge or in my case as a magistrate judge we hear these cases and we we hear from the state, they put up the case.
And they have to present evidence, not all of their case, not all of their evidence, but just enough for probable cause. The defense is allowed to cross examine the state's witness and make arguments to the judge about whether or not there is probable cause the judge will make that determination. If they find that there is not probable cause the case is dismissed.
Doesn't mean it goes away permanently, but it's dismissed at that point. However, if they do find probable cause that the case is bound over and it goes forward.
well, there can be several outcomes to your case at a preliminary hearing first and most likely is that the case we bound over, which means that there is probable cause for the case to go forward. Second, the case could be dismissed a third. The case could be remaining. Down to magistrate or municipal level charge, or it could be reduced to still a general sessions charge, but just a lesser included charge.
Now, how do you get your case dismissed, remanded or reduced? Well, it's a, lot's going to depend on what the testimony was and what the elements of the charged crime are. So if you're charged with burglary first and the state fails to testify about one of those aggravating circumstances. There's a chance.
The case could be dismissed outright. It could be reduced. It wouldn't be remanded in that case because it's a burglary, but there are different issues that can come up. And there's always a question about whether a magistrate or municipal judges even have the authority to reduce, or a man there's some that argue that the only option is either bound over or dismissal.
Now that can have a big effect on your case, because if the case may be, could be removed. But if a judge doesn't believe in that, then it might force their hand to either dismiss or bind it over. If it's bind over then the issue is moot. So you want to be able to evaluate the case to determine not only the facts to see if there is probable cause, but to see if there's a missing element to where the case will either be dismissed, remanded, or reduced.
Now, even if your case is dismissed, that's not really the end of it. It can always be true. And what true build means is that the solicitor took it to a grand jury and they had a grand jury directly indict your case. Now DP, does this happen often? It can when I was an assistant solicitor, we did this quite often with some cases that were dismissed at prelims.
Sometimes we, we didn't bring them back and they didn't come back. So a dismissal doesn't necessarily mean a dismissal forever. Just know there are a lot of options and endings to a case at the prelim.