Arrest Warrant Or Summons Upon Complaint

(a) Issuance. (1) Warrant. If it appears from the complaint, or from an affidavit filed with the complaint, or from a written declaration made and subscribed under penalty of perjury, that there is probable cause to believe that a criminal offense has been committed by the defendant, the magistrate must issue an arrest warrant to an officer authorized by law to execute it. [Except as provided in subdivision (a)(2).] The finding of probable cause must be based upon evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the magistrate may examine under oath the complainant and any other witnesses produced, in which case the proceedings must be recorded. A magistrate who has not been admitted to practice law in this state may not issue a warrant until the complaint has been approved by the prosecuting attorney. If it appears to the magistrate from the complaint or other written evidence that the accused is likely to abscond before the prosecuting attorney can approve the complaint, and the magistrate so certifies on the complaint, the magistrate may issue a warrant without approval of the prosecuting attorney. (2) Summons. The magistrate may issue a summons in lieu of a warrant if the magistrate has reason to believe that the defendant will appear in response to it or if the defendant is a corporation. (3) Failure of Defendant to Appear After Summons. If a defendant fails to appear in response to a summons or there is reasonable cause to believe that the defendant will fail to appear, a magistrate must issue an arrest warrant. If a defendant corporation fails to appear in response to a summons, a magistrate who is empowered to try the offense for which the summons was issued must enter a plea of not guilty and may proceed to trial and judgment without further process; a magistrate who is not so empowered must proceed as though the defendant had appeared. (4) Additional Warrants or Summonses. A magistrate may issue more than one warrant or summons on the same complaint. (5) Warrant or Summons by Telephone or Other Reliable Electronic Means. In accordance with Rule 4.1 , the magistrate may issue a warrant or summons based on information communicated by telephone or other reliable electronic means. (b) Form. (1) Warrant. A warrant must: (A) be in writing, in the name of the State of North Dakota; (B) be signed by the issuing magistrate with the title of the magistrate's office; (C) state the date of issuance and the municipality or county where issued; (D) contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty; (E) describe the offense charged against the defendant; and (F) command the defendant be arrested and brought before the nearest available magistrate. The warrant may also have endorsed upon it the recommended or acceptable amount of bail if the offense is bailable. (2) Summons. A summons must be in the same form as the warrant except that it must require the defendant to appear before a magistrate at a stated time and place and must inform the defendant that if the defendant fails to appear, an arrest warrant will issue. (c) Execution; Service. (1) Execution of Warrant. The warrant is directed to all peace officers of this state and may be executed only by a peace officer. It is executed by the arrest of the defendant and may be executed in any county of the state by any peace officer of this state. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant immediately upon request. If the officer does not possess the warrant at the time of the arrest, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request must show the original or a duplicate original warrant or a copy to the defendant as soon as possible. (2) Service of Summons. The summons must be served in the manner provided for service of a summons in a civil action. Any person authorized to serve a summons in a civil action may serve a summons. (d) Return. (1) After executing a warrant, the officer must return it to the magistrate before whom the defendant is brought in accordance with Rule 5 . The officer may do so by reliable electronic means. At the request of the prosecuting attorney, an unexecuted warrant must be returned to and canceled by the magistrate who issued it. (2) The person to whom a summons is delivered for service must return it to the magistrate before whom the summons is returnable on or before the return day. (3) At the request of the prosecuting attorney made while a complaint is pending, a magistrate may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to a peace officer for execution or service. (e) Defective Warrant or Summons; Amendment. No person arrested under a warrant or appearing in response to a summons may be discharged from custody or dismissed because of any informality in the warrant or summons, but the warrant or summons may be amended to remedy the informality.