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Should i waive my preliminary hearing

Huntsville, AL |

i got caught by the police with some a small amount of weed less than 2 grams but the officer is trying to give me a felony because it was in individual baggies

Attorney Answers 4


  1. That is something you and your attorney should decide. Consider pretrial diversion or drug court. Preliminary hearing won't change much.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Alabama. Responses are based solely on Alabama law unless stated otherwise.


  2. The general response by most criminal defense attorneys is not to waive a preliminary hearing. Since discovery in a criminal case under state rules of procedure is limited, using the preliminary hearing to gain factual information about the case from the arresting or investigating officers is important. The preliminary hearing may be the only real chance to obtain documents and cross-examine the officers concerning the element of probable cause.

    Your best bet is to retain a qualified criminal defense attorney to assist and advise you.


  3. A preliminary hearing is an excellent venue to test the sufficiency of the state's evidence against you. Sometimes, the judge will dismiss a weak case or dismiss the most serious of the charges. It's also an opportunity to work a case out via a plea or get your bond reduced. Your best bet is to hire a great attorney specializing in criminal cases. Richard Jensen in Huntsville and Patrick Tuten come to mind.

    As always, no attorney/client relationship is created by this answer and I recommend that you contact a local, experienced criminal defense lawyer to discuss your particular situation.


  4. That is a very open-ended question. In our jurisdiction (Madison County), the District Attorney's office has a pretty liberal providing Discovery if you waive the preliminary hearing policy. For that reason, if a person is not incarcerated at the time of the hearing, 90%+ get waived. On your case, the Preliminary Hearing won't be much help, as the officer probably won't even be there (it will be an investigator) and Hearsay is admissible. If you have not had a prior misdemeanor for personal use conviction, the State must prove that you possessed the marijuana for "other than personal use". Some officers believe individual baggies is automatic for that. Juries, however, tend to disagree. In all likelihood, a misdemeanor can probably be negotiated for such a small amount, however, discuss with your defense attorney the advantages and disadvantages of waiving the Preliminary Hearing. There may be other factors (such as the validity of the stop, etc.) that need to be addressed at the Preliminary Hearing.

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