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Do You Really Have A Right To A Preliminary Hearing?

In Virginia, when you are arrested on a felony warrant you essentially have a right to three hearings.  The first, a few days after your arrest, is an arraignment.  At that hearing, the Judge will advise you of your rights, inform you of exactly what you are charged with, and discussing legal representation with you.  Your next hearing will generally be the preliminary hearing.  This is a hearing that every defendant in this situation has a right to under the Virginia Code.  Section 19.2-218 of the Code of Virginia guarantees that any person arrested for a felony will have a preliminary hearing, which is to be held in either the general district court or the juvenile and domestic relations district court.

This hearing is to determine if there was probable cause to arrest you for the offense that you were arrested for.  It is a low standard and most hearings result in the charges being approved to go the grand jury (a process known as being “certified”).  Probable cause can best be explained as the government having to show that the defendant “probably” did what he or she was arrested for.  The court has no power to convict the defendant of a felony at this stage.  It is meant to protect that defendant by ensuring that there is at least probable cause to move forward with the charges.

However, there is another legal doctrine, known as nolle prosequi (nolle pros, for short), which allows the government to choose to not proceed forward with a charge at a particular time.  Virginia Code Section 19.2-265.3 allows for this, but also requires that the Commonwealth show good cause for the motion.  A practice has been growing for a number of years wherein the Commonwealth’s Attorney uses the nolle prosequi to stop the prosecution prior to the preliminary hearing, and then obtain an indictment from the grand jury directly.  This shields the Commonwealth’s evidence from any disclosure at the preliminary hearing.  This can be used when the Commonwealth wants to protect the identity of a witness, such as an informant.  However, Virginia’s Courts have all but eviscerated that “good cause” requirement and generally allow the Commonwealth to nolle pros a charge at their discretion.  Further, it has been held that this decision cannot be appealed from the general district court.

If a nolle pros is granted, the charge is dismissed, but can be brought back.  Since the charge is gone, the defendant who has been held in jail loses credit for that time if later convicted on the new charge.  If rearrested, then the defendant may have to post a new bond.  There are many negatives to this conduct, and until the courts starts enforcing the “good cause” requirement then these consequences will continue to face defendants.

If you need a felony defense attorney, call The Law Office of Kevin R. Pettrey, PLC, right away.  We know how to handle these cases.