THE FIRST CHANCE TO FACE A JUDGE AFTER ARREST
The first appearance hearing (often incorrectly referred to as a preliminary hearing or probable cause hearing) in a criminal case is typically the first chance for an inmate to appear before a judge after he’s been arrested. Uniform Superior Court Rule 26.1 provides that an inmate arrested on criminal charges must be brought before a magistrate court judge within 72 hours of his arrest on a warrant or within 48 hours of an arrest without a warrant. The purpose of the hearing is to advise the defendant as to the charges he has pending against him, to advise him of his rights including the right to remain silent, to advise him of the need for an attorney and to make a determination as to whether the defendant qualifies for appointed counsel, set bond (not in all jurisdictions) if it is the offense bondable by magistrate and not superior court, make a determination of probable cause in cases of a warrantless arrest, advise him of the right to grand jury indictment in certain cases, and advise him about the right to a commitment hearing where bond will be set if legally possible.
FAILURE TO HOLD FIRST APPEARANCE HEARING IN THE RIGHT TIME
Interestingly enough the failure of the state to properly comply with the time requirements provided for by law can result in serious consequences against the state. A few years ago I represented a young man charged with trafficking in cocaine. He was arrested in Gwinnett then shipped to DeKalb. More than a week had passed and he had not been taken before a judge for his first appearance hearing. I filed a special motion and brought the matter before a judge who granted my motion and actually dismissed the charges against my client. Which is one of the reasons why the state rarely fails to have a first appearance hearing within the time proscribed by law. I’ve been asked many times about what can be done if the state hasn’t provided a defendant with a commitment (aka probable cause or preliminary hearing) within 48 or 72 hours and the answer really is nothing. There is no time requirement for a probable cause/commitment/preliminary hearing. I will explain more about commitment hearings in my next blog.
If you or someone you love has been arrested for any crime recently, please give me a call immediately for a free and confidential consultation. 404-474-2531.