CO Code § 16-5-301 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 5 - Commencement of Criminal Action|Part 3 - Preliminary Hearing|§ 16-5-301. Preliminary Hearing or Waiver - Dispositional Hearing

     Every person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by direct information or felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406, C.R.S., or is a sexual offense under part 4 of article 3 of title 18, C.R.S., shall have the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. The procedure to be followed in asserting the right to a preliminary hearing and the time within which demand therefor must be made, as well as the time within which the hearing, if demanded, shall be had, shall be as provided by applicable rule of the supreme court of Colorado. A failure to observe and substantially comply with such rule shall be deemed a waiver of this right to a preliminary hearing.      No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, C.R.S., or which are sexual offenses under part 4 of article 3 of title 18, C.R.S., shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution. (b) (I) No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, C.R.S., or which are sexual offenses under part 4 of article 3 of title 18, C.R.S., shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution.    Any defendant accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony who is not otherwise entitled to a preliminary hearing pursuant to subparagraph (I) of this paragraph (b), may demand and shall receive a preliminary hearing within a reasonable time pursuant to paragraph (a) of this subsection (1), if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing.    The chief justice of the Colorado supreme court is encouraged to promulgate rules defining the term “dispositional hearing” for purposes of this subsection (1)(b), section 18-1-404 (2), and section 19-2.5-609 (2).          If a person is accused of an unlawful sexual offense classified as a felony, upon the request of any party to the proceeding, the court may exclude from the preliminary hearing any member of the general public. In making a ruling for exclusion, the court shall:   Set forth sufficient findings of fact and conclusions of law to support the order; and    Make its order sufficiently narrow to protect the requesting party's compelling interest considering any reasonable alternative to exclusion for the entire hearing of all members of the general public.       The court may exempt a victim's advocate from any order entered pursuant to subsection (2) of this section. For the purposes of this section, “victim's advocate” means any person whose regular or volunteer duties include the support of an alleged victim of physical or sexual abuse or assault.      History. Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-301 . L. 73: P. 499, § 3. L. 87: Entire section amended, p. 603, § 2, effective July 1. L. 92: Entire section amended, p. 321, § 1, effective July 1. L. 98: (1) amended, p. 1272, § 1, effective July 1. L. 2000: (1)(b)(II) amended, p. 454, § 11, effective April 24. L. 2002: (1)(a) and (1)(b)(I) amended, p. 1490, § 133, effective October 1. L. 2013: (1)(a) and (1)(b)(II) amended,(SB 13-250), ch. 333, p. 1929, § 40, effective October 1. L. 2014: (1)(b)(I) amended,(SB 14-163), ch. 391, p. 1979, § 23, effective June 6. L. 2021: (1)(b)(III) amended,(SB 21-059), ch. 136, p. 712, § 21, effective October 1.    Cross references:   For the legislative declaration contained in the 2002 act amending subsections (1)(a) and (1)(b)(I), see section 1 of chapter 318, Session Laws of Colorado 2002.   ANNOTATION   Law reviews. For article, “By Leave of Court First Had”, see 8 Dicta 10 (June 1931). For article, “Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement”, see 22 Rocky Mt. L. Rev. 221 (1950). For note, “Preliminary Hearings -- The Case for Revival”, see U. Colo. L. Rev. 580 (1967). For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a case relating to right of access to criminal proceedings, see 15 Colo. Law. 1563 (1986). For article, “Felony Preliminary Hearings in Colorado”, see 17 Colo. Law. 1085 (1988).   Annotator's note. Since § 16-5-301 is similar to repealed § 39-5-1 , C.R.S. 1963, CSA, C. 48, § 461, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   Right to preliminary hearing has constitutional foundation. Defendant in requesting and obtaining a preliminary hearing is exercising a right that is not only guaranteed him by statute and rule of court, but also one that has a constitutional foundation. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).   There is no constitutional requirement making a preliminary hearing a prerequisite to a prosecution by information. Holt v. People, 23 Colo. 1 , 45 P. 374 (1896).   There is no federal constitutional requirement of a preliminary hearing before proceeding by information. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969); People v. Moody, 630 P.2d 74 (Colo. 1981).   The primary purpose of the preliminary hearing is to determine whether probable cause exists to support the prosecution's charge that the accused committed a specific crime. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973); People v. Lancaster, 683 P.2d 1202 (Colo. 1984); People v. District Court, 779 P.2d 385 (Colo. 1989); People v. Sutherland, 886 P.2d 681 (Colo. 1994).   The preliminary hearing is held for the limited purpose of determining if probable cause exists to believe that the crime or crimes charged were committed by the defendant. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).   The sole issue at the preliminary hearing is probable cause. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).   The preliminary hearing is a screening device to determine whether probable cause exists. People v. Weaver, 182 Colo. 221 , 511 P.2d 908 (1973).   A preliminary hearing is a screening device and does not require that the prosecution lay out for inspection and for full examination all witnesses and evidence. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).   Evidence to support a conviction is not required at a preliminary hearing. People v. Brisbin, 727 P.2d 374 (Colo. 1986); People v. District Court, 779 P.2d 385 (Colo. 1989).   The preliminary hearing was created as a screening device to afford the defendant an opportunity to challenge the sufficiency of the prosecution's evidence to establish probable cause before an impartial judge. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).   Because the preliminary hearing is a screening device, much latitude is accorded the prosecution at this stage, and the trial court is obligated to view the evidence presented in the light most favorable to the prosecution. People v. District Court, 803 P.2d 193 (Colo. 1990).   Trial court did not have the authority to dismiss defendant's felony charge on the basis that defendant had not received a timely preliminary hearing. Because defendant was not in the custody of the county charging him with the felony, he was not legally entitled to a preliminary hearing. People v. Pena, 250 P.3d 592 (Colo. App. 2009), overruled in People v. Subjack, 2021 CO 10, 480 P.3d 114.   Preliminary hearing does not alter proposition that accused entitled to one trial on merits. Although a preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits of the charge. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).   Standards for determining probable cause at preliminary hearing are: (1) Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged; (2) the evidence presented must be viewed in the light most favorable to the prosecution; (3) if testimony conflicts, the trial court must draw an inference for the prosecution; and (4) the preliminary hearing is a screening device and not a trial. People v. Williams, 628 P.2d 1011 (Colo. 1981); Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).   Judge without jurisdiction to adjudge ultimate guilt. In a preliminary hearing of one charged with the commission of a crime, the judge is without jurisdiction to adjudge the ultimate guilt or innocence of the accused. Ex parte Snyder, 110 Colo. 35 , 129 P.2d 672 (1942).   Judging the merits of a case is for the trier of facts at trial and not for the trial judge at a preliminary hearing. People v. District Court, 779 P.2d 385 (Colo. 1989).   Hearsay and other evidence may be bulk of evidence at hearing. Hearsay and other evidence, which would be incompetent if offered at the time of trial, may be the bulk of evidence at a preliminary hearing. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).   Hearsay evidence considered to establish probable cause. Hearsay evidence, which would otherwise be inadmissible at the trial, may be considered for purposes of establishing probable cause. People v. Williams, 628 P.2d 1011 (Colo. 1981).   Prosecution satisfies minimum requirements for use of hearsay at preliminary hearing if it: (1) Presents some competent nonhearsay evidence that addresses an essential element of the offense; and (2) presents the hearsay evidence through a witness who is connected to the offense or its investigation rather than someone merely reading from a report. In this case, the prosecution satisfied the status elements of the offense through nonhearsay testimony and produced the victim's testimony (hearsay) through the investigating officer who was familiar with the case. People v. Huggins, 220 P.3d 977 (Colo. App. 2009).   Court's failure to apply correct standard for use of hearsay at preliminary hearing was abuse of discretion. Applying the correct standard, the evidence presented at the preliminary hearing established probable cause to believe the defendant committed the charged offenses. People v. Huggins, 220 P.3d 977 (Colo. App. 2009).   Resolving admissibility of such evidence. The admissibility at a preliminary hearing of a confession which is alleged to be involuntary or the admissibility of evidence that may have been seized in violation of the fourth amendment to the United States Constitution need not be resolved on the same basis that would be required when such motion is properly before the trial court or at the time of the trial. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).   Failure to establish an articulable suspicion for stopping defendant or probable cause for arrest at preliminary hearing is not grounds for dismissal of charges. People v. Brisbin, 727 P.2d 374 (Colo. 1986).   Probable cause finding may be based largely on hearsay testimony. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).   However reliance on hearsay evidence must not be abused. Maestas v. District Ct., 541 P.2d 889 (Colo. 1975); Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).   Preliminary hearing deemed waived if not demanded. The statutory right to receive a preliminary hearing is not absolute and requires that either the defendant or his attorney, or the prosecuting attorney, file a written motion demanding the preliminary hearing; if the defendant fails to file a written motion for a preliminary hearing, he is deemed to have waived his right to demand one. People v. Moody, 630 P.2d 74 (Colo. 1981).   A defendant charged with a class four felony is entitled to a preliminary hearing on an offense so long as the defendant is in custody for that offense. A defendant who is in custody for an unrelated conviction is still in custody for the offense for which the preliminary hearing is requested if the defendant has not posted bond on those charges. People v. Subjack, 2021 CO 10, 480 P.3d 114 (overruling People v. Taylor, 104 P.3d 269 (Colo. App. 2004), and People v. Pena, 250 P.3d 592 (Colo. App. 2009)).   A defendant, charged with a class five felony is conferred the right to a preliminary hearing only if that defendant is in custody for the offense for which the preliminary hearing is requested. The defendant's right to a preliminary hearing is lost under the circumstance that he or she is in custody for an offense other than that for which the preliminary hearing is requested. People v. Taylor, 104 P.3d 269 (Colo. App. 2004), overruled in People v. Subjack, 2021 CO 10, 480 P.3d 114.   Refusal to appear constitutes waiver. In addition to an express written waiver, refusal by a defendant to appear at a scheduled preliminary hearing where the county judge had advised the defendant's attorney that the defendant's presence was required constitutes an implied waiver and extinguishes the defendant's right to a preliminary hearing in county court. People v. Abbott, 638 P.2d 781 (Colo. 1981).   As does failure to appear. Where it is clear that a defendant was apprised of his right to a hearing and of the date on which he was required to appear, the failure of both the defendant and his attorney to appear constitutes an implied waiver of the preliminary hearing. People v. Abbott, 638 P.2d 781 (Colo. 1981).   Application for deferred sentencing does not constitute waiver of right to preliminary hearing. Celestine v. District Court, 199 Colo. 514 , 610 P.2d 1342 (1980).   Effect of waiver of preliminary hearing. If the defendant elects to waive the preliminary hearing and to proceed to trial, the waiver operates as an admission by the defendant that sufficient evidence does exist to establish probable cause that the defendant committed the crimes charged. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).   An express written waiver by a defendant of his right to a preliminary hearing operates identically to a failure to file within the time limit prescribed by Crim. P. 5(a)(5), both requiring the defendant's case to be bound over for trial. People v. Abbot, 638 P.2d 781 (Colo. 1981).   Once a county court has bound a defendant over to the district court for trial, the district court is without authority or power to grant the defendant a preliminary hearing. People v. Taylor, 104 P.3d 269 (Colo. App. 2004), overruled in People v. Subjack, 2021 CO 10, 480 P.3d 114.   District court cannot restore waived right. Under the Colorado rules of criminal procedure and the statutes of this state, a district court is not vested with the power to restore a defendant's statutory right to a preliminary hearing once the defendant had waived that right in county court bind-over proceedings. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974); People v. Abbott, 638 P.2d 781 (Colo. 1981); People v. Taylor, 104 P.3d 269 (Colo. App. 2004), overruled in People v. Subjack, 2021 CO 10, 480 P.3d 114.   Where district court finds that defendant's waiver of right to preliminary hearing is ineffective, the district court has the authority to restore defendant's right to a preliminary hearing. People v. Nichelson, 219 P.3d 1064 (Colo. 2009).   Defendant entitled to a preliminary hearing on all class 1, 2, or 3 felonies even when the felony classification results from a sentence enhancer. People v. Simpson, 2012 COA 156 , 292 P.3d 1153.   Defendant entitled to a preliminary hearing pursuant to criteria of subsection (1)(b)(II) for a class 4 felony driving under the influence (DUI). Defendant was charged with a class 4 felony DUI, not a misdemeanor DUI and a separate sentence enhancer. People v. Tafoya, 2019 CO 13, 434 P.3d 1193.   Defendant who is not in custody entitled to a preliminary hearing pursuant to subsection (1)(a) whenever charged with a class 4, 5, or 6 felony when felony charge requires the imposition of a mandatory period of incarceration. People v. Huckabay, 2020 CO 42, 463 P.3d 283.   Court erred in denying preliminary hearing for defendant charged with felony DUI, which requires mandatory sentencing to a period incarceration which could include incarceration either in the department of corrections or in county jail. People v. Huckabay, 2020 CO 42, 463 P.3d 283.   Defendant entitled to a preliminary hearing when special offender allegation affects the level of offense defendant is accused of and charged with, regardless of whether the special offender allegation is deemed an element or a sentence enhancer. But sentence enhancer counts that seek solely to punish a defendant more severely for committing a crime charged in another count do not qualify for a preliminary hearing. People v. Vanness, 2020 CO 18, 458 P.3d 901 (overruling People v. Garcia, 176 P.3d 872 (Colo. App. 2007)).   Defendant not entitled to preliminary hearing because the substantive offense with which defendant was charged was a misdemeanor. People v. Garcia, 176 P.3d 872 (Colo. App. 2007), overruled in People v. Vanness, 2020 CO 18, 458 P.3d 901.   The charge of habitual domestic violence offender is a sentence enhancer which, if proven, would enhance the level of the misdemeanor offense to a class 5 felony and would require mandatory sentencing. People v. Garcia, 176 P.3d 872 (Colo. App. 2007), overruled in People v. Vanness, 2020 CO 18, 458 P.3d 901.   Habitual criminal counts. Inasmuch as habitual criminal counts do not constitute “offenses”, probable cause need not be established in the preliminary hearing to bind these charges over to the district court. Maestas v. District Court, 189 Colo. 443 , 541 P.2d 889 (1975).   Habitual criminal charges are not substantive offense and such a count could be added to a complaint without another preliminary hearing. People v. Hodge, 694 P.2d 1277 (Colo. App. 1984).   Juvenile who was transferred to the district court from the juvenile court, after a transfer hearing where probable cause as to the offenses charged was determined, was not entitled in the district court to another determination of probable cause in the form of a preliminary hearing. People v. Flanigan, 189 Colo. 43 , 536 P.2d 41 (1975).   All evidence presented in a preliminary hearing must be viewed in the light most favorable to the prosecution, and all inferences must be resolved in favor of the prosecution. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).   Where technical difficulties prevented defendant from obtaining a transcript of the preliminary hearing, the judge abused his discretion in denying defendant's motion for a second preliminary hearing. Such motion should have been granted because the testimony presented at the first preliminary hearing was directly relevant and significant to defendant's trial preparation, the prosecution was expected to rely on testimony presented at the preliminary hearing, and there was no alternative method of reconstructing the testimony from the preliminary hearing. Harris v. District Court, 843 P.2d 1316 (Colo. 1993).   District court does not have jurisdiction to review a county court's finding of probable cause pursuant to C.R.C.P. 106. Defendant may seek extraordinary relief under C.A.R. 21. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).   Applied in People v. Boyette, 635 P.2d 552 (Colo. 1981); Chavez v. District Court, 648 P.2d 658 (Colo. 1982); People v. Elmore, 652 P.2d 571 (Colo. 1982).