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

Arizona Revised Statutes AnnotatedRules of Criminal ProcedureEffective: July 1, 2023

Arizona Revised Statutes Annotated
Rules of Criminal Procedure (Refs & Annos)
II. Preliminary Proceedings
Rule 5. Preliminary Hearing (Refs & Annos)
Effective: July 1, 2023
16A A.R.S. Rules Crim.Proc., Rule 5.1
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 and necessary witnesses, and ensure the ability to record a verbatim record of the proceeding.
(v) Victims' Rights.
(1) Upon request by the victim, the State must notify the victim of a preliminary hearing.
(2) Before continuing a preliminary hearing on motion or on its own initiative under (c), a magistrate must also consider the victim's right to a speedy disposition. If the magistrate orders a continuance of the preliminary hearing, the victim, if requested, must be notified of the magistrate's order and the new hearing date under A.R.S. § 13-4409.
(3) If an in-custody defendant demands a preliminary hearing under (d), the hearing date set by the magistrate must allow for sufficient notice to the victim under A.R.S. § 13-4409.


Added Aug. 31, 2017, effective Jan. 1, 2018. Amended Sept. 28, 2017, effective April 2, 2018; amended on an emergency basis, effective Sept. 30, 2021, adopted on a permanent basis effective Jan. 1, 2022. Amended Dec. 8, 2022, effective July 1, 2023.
16A A. R. S. Rules Crim. Proc., Rule 5.1, AZ ST RCRP Rule 5.1
State Court Rules are current with amendments received through May 15, 2024. The Code of Judicial Administration is current with amendments received through May 15, 2024.
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