Initial Appearance Before The Magistrate

(a) General. (1) Appearance Upon an Arrest. An officer or other person making an arrest must take the arrested person without unnecessary delay before the nearest available magistrate. (2) Arrest Without a Warrant. If an arrest is made without a warrant, the magistrate must promptly determine whether probable cause exists under Rule 4(a). If probable cause exists to believe that the arrested person has committed a criminal offense, a complaint or information must be filed in the county where the offense was allegedly committed. A copy of the complaint or information must be given within a reasonable time to the arrested person and to any magistrate before whom the arrested person is brought, if other than the magistrate with whom the complaint or information is filed. (b) Statement by the Magistrate at the Initial Appearance. (1) In All Cases. The magistrate must inform the defendant of the following: (A) the charge against the defendant and any accompanying declaration; (B) the defendant's right to remain silent; that any statement made by the defendant may later be used against the defendant; (C) the defendant's right to the assistance of counsel before making any statement or answering any questions; (D) the defendant's right to be represented by counsel at each and every stage of the proceedings; (E) if the offense charged is one for which counsel is required, the defendant's right to have legal services provided at public expense to the extent that the defendant is unable to pay for the defendant's own defense without undue hardship; and (F) the defendant's right to be admitted to bail under Rule 46. (2) Felonies. If the defendant is charged with a felony, the magistrate must inform the defendant also of: (A) the defendant's right to a preliminary hearing; (B) the defendant's right to the assistance of counsel at the preliminary hearing; (C) that a defendant who is not a United States citizen may request that an attorney for the state or a law enforcement officer notify a consular officer from the defendant's country of nationality that the defendant has been arrested. (3) Misdemeanors. If the defendant is charged with a misdemeanor, the magistrate must inform the defendant also of the defendant's right to trial by jury in all cases as provided by law and of the defendant's right to appear and defend in person or by counsel. (c) Right to Preliminary Hearing. (1) Waiver. (A) If the offense charged is a felony, the defendant has the right to a preliminary hearing. The defendant may waive the right to preliminary hearing at the initial appearance if assisted by counsel. (B) If the defendant is assisted by counsel and waives preliminary hearing and the magistrate is a judge of the district court, the defendant may be permitted to plead to the offense charged in the complaint or information at the initial appearance. (C) If the defendant waives preliminary hearing and does not plead at the initial appearance, an arraignment must be scheduled. (D) The magistrate must admit the defendant to bail under the provisions of Rule 46. (2) Non-waiver. If the defendant does not waive preliminary hearing, the defendant may not be called upon to plead to a felony offense at the initial appearance. A magistrate of the county in which the offense was allegedly committed must conduct the preliminary hearing. The magistrate must admit the defendant to bail under the provisions of Rule 46. (d) Reliable Electronic Means. Contemporaneous audio or audiovisual transmission by reliable electronic means may be used to conduct an appearance under this rule as permitted by N.D. Sup. Ct. Admin. R 52 . (e) Uniform Complaint and Summons. (1) In General. Notwithstanding Rule 5(a), a uniform complaint and summons may be used in lieu of a complaint and appearance before a magistrate, whether an arrest is made or not, for an offense that occurs in an officer's presence or for a motor vehicle or game and fish offense. An individual held in custody must be brought before a magistrate for an initial appearance without unnecessary delay. (2) Duty of Prosecuting Attorney. When a uniform complaint and summons is issued for a felony offense, the prosecuting attorney must also subsequently file a complaint or information that complies with Rule 5(a). If the prosecuting attorney after review declines to prosecute a charge that has been filed with the court on a uniform complaint and summons, a dismissal of the charge must be stated on the complaint or information or filed separately with the court.