If you are charged with a crime in General Sessions Court in Horry County, SC, you are entitled to a preliminary hearing.
Preliminary hearings can be an important stage in your case where 1) your case could be dismissed for a lack of probable cause or 2) even if your case is not dismissed, your attorney can get useful information and testimony from the arresting officer under oath.
Below, we will discuss the basics of preliminary hearings in Myrtle Beach and Conway, SC, including:
- What a preliminary hearing is,
- When you are entitled to a preliminary hearing,
- How you request a preliminary hearing in SC,
- What happens if you win your preliminary hearing, and
- What happens if you lose your preliminary hearing.
What is a Preliminary Hearing?
A preliminary hearing in SC is a probable cause hearing.
The arresting officer (or chief investigating officer for the case) testifies as to what their probable cause was for the arrest, you or your attorney cross-examines the officer on the issue of whether there was probable cause for your arrest, and then a magistrate (or municipal judge) decides whether there was probable cause.
If there was no probable cause for the arrest, your case is dismissed (although it can be “revived” with a grand jury indictment).
Should you request a preliminary hearing?
What do you have to lose?
The best-case scenario is your case gets dismissed. The worst-case scenario is your attorney can cross-examine the arresting officer, at a time when they probably have not prepared for their testimony and have not been “prepped” by the prosecutor.
If the testimony is not helpful at all, you’ve lost nothing. If the testimony is helpful, though, your attorney can get a transcript made which could help in negotiations with your prosecutor, and the officer cannot later change their testimony if your case goes to trial…
Who Gets a Preliminary Hearing in SC?
Every person who is charged with a General Sessions level offense in SC is entitled to a preliminary hearing. If your charges are in the magistrate court or the municipal court, however, you are not entitled to a preliminary hearing.
Examples of Cases Where You are Not Entitled to a Preliminary Hearing
- Assault and battery 3rd degree,
- Shoplifting first offense < 2000,
- DUI 1st offense,
- DUS (driving under suspension),
- Public disorderly conduct,
- Minor in possession of alcohol, or
- Any charges in magistrate or municipal court.
Examples of Cases Where You Have a Right to a Preliminary Hearing
- Shoplifting > 2000,
- Assault and battery 2nd degree,
- Domestic violence 2nd degree,
- Breach of trust with fraudulent intent > 2000,
- Grand larceny,
- PWID marijuana, or
- Any charges in General Sessions court.
How Do You Request a Preliminary Hearing in Myrtle Beach or Conway, SC?
SC Code § 17-23-160 requires the magistrate to inform you of your right to a preliminary hearing at your bond hearing and provide you with a form you can use to request the hearing.
You should bring this form to your defense lawyer immediately or send in the form yourself if you do not have an attorney – if you do not request the preliminary hearing within the time limit, you will lose your right to a hearing.
Who Testifies at a Preliminary Hearing in SC?
Someone with personal knowledge of the facts of your case must testify at your preliminary hearing – this means the arresting officer, the “affiant” on your arrest warrant, or the “chief investigating officer” on your case:
The affiant listed on an arrest warrant or the chief investigating officer for the case must be present to testify at the preliminary hearing of the person arrested pursuant to the warrant.
If the affiant or chief investigating officer is not present to testify, your case should be 1) dismissed for failure to prosecute or 2) continued to allow the state to get the right person there.
What Happens if You Win Your Preliminary Hearing?
If you win your preliminary hearing, your case is dismissed for lack of probable cause (or for the state’s failure to provide a witness who can testify as to the probable cause for your arrest).
That doesn’t necessarily mean that your case is over, though.
The prosecutor can still have your case indicted by a grand jury – if this happens, the court will need to reinstate your bond from the original charges, and you will still have to fight the charges in court if the prosecutor doesn’t dismiss them.
What Happens if You Lose Your Preliminary Hearing?
If you lose your preliminary hearing, you lose nothing. There is no penalty, and there may be a benefit if the officer made any statements that were helpful during his or her testimony.
Should You Ever Waive Your Preliminary Hearing?
This is a question that must be answered by your defense lawyer based on your situation and the unique circumstances of your case.
Can I be Indicted by the Grand Jury Before My Preliminary Hearing?
Although your case should not be sent to the grand jury before your preliminary hearing, it does happen, especially if your case has been continued a few times.
When you are indicted by the grand jury, you lose your right to a preliminary hearing and there is nothing that can be done about it.
Questions About Preliminary Hearings in Myrtle Beach or Conway, SC?
If you have been charged with a criminal offense in Horry County, Georgetown County, or the surrounding area, the Myrtle Beach criminal defense lawyers at Coastal Law may be able to help you.
Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.
