23A-4-1      Arrested person taken before magistrate--Complaint filed on arrest without warrant.
23A-4-2      (Rule 5(b)) Procedure on minor offenses cognizable by magistrate court.
23A-4-3      (Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminary hearing--Charges requiring preliminary hearing--Waiver or scheduling of hearing--Extension of time.
23A-4-4      Advice to defendant and admission to bail when initial appearance before another magistrate--Initial appearance without warrant--Transmittal of files to appropriate court.
23A-4-5      Transfer to magistrate judge or circuit court for preliminary hearing.
23A-4-6      (Rule 5.1(a)) Holding for trial when probable cause shown on preliminary hearing--Evidence received.
23A-4-7      (Rule 5.1(b)) Discharge and dismissal in absence of probable cause--Subsequent prosecution on same offense.
23A-4-8      (Rule 5.1(c)) Record of proceedings on preliminary hearing--Cost--Transmittal of papers to trial court--Limitation of access to record.

23A-4-1. Arrested person taken before magistrate--Complaint filed on arrest without warrant.

A law enforcement officer shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate. Any person, other than a law enforcement officer, making an arrest shall, without unnecessary delay, take the arrested person before the nearest available committing magistrate or deliver him to the nearest available law enforcement officer. If a person arrested without a warrant is brought before a committing magistrate, a complaint shall be filed forthwith. Unless given a court appearance date and released from custody, a person, arrested with or without a warrant or given a summons, shall appear initially before a committing magistrate in person or via ITV, without unnecessary delay, at which time the committing magistrate shall proceed in accordance with the applicable provisions of §§ 23A-4-2 to 23A-4-5, inclusive.

Source: SDC 1939 & Supp 1960, §§ 34.1608, 34.1619, 34.1620; SDCL §§ 23-22-16, 23-22-20, 23-22-22; SL 1978, ch 178, § 36; SL 1989, ch 209; SL 1990, ch 174; SL 2018, ch 301 (Supreme Court Rule 18-10), eff. July 1, 2018.

23A-4-2. (Rule 5(b)) Procedure on minor offenses cognizable by magistrate court.

If the charge against a defendant is cognizable by a magistrate pursuant to § 16-12B-8, the magistrate shall proceed in accordance with that section.

Source: SL 1978, ch 178, § 37.

23A-4-3. (Rule 5(c)) Advice to defendant at initial appearance on charge requiring preliminary hearing--Charges requiring preliminary hearing--Waiver or scheduling of hearing--Extension of time.

If a charge against a defendant requires a preliminary hearing, the defendant may not be called on to plead. The committing magistrate shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant's right to retain counsel and to request assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. The committing magistrate shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The committing magistrate shall also inform the defendant of the defendant's right to a preliminary hearing. The committing magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail in the amount set pursuant to § 23A-2-4 or chapter 23A-43, or as otherwise provided by law. If the offense charged is a Class 1 misdemeanor, and the circuit in which the offense is charged has a magistrate court presided over by a magistrate judge, the defendant shall be held to answer before the magistrate judge or the circuit court.

No defendant is entitled to a preliminary hearing unless charged with an offense punishable as a felony. If the defendant waives the preliminary hearing, the committing magistrate shall forthwith hold the defendant to answer in circuit court if the offense charged is a felony. If the defendant does not waive the preliminary hearing, the committing magistrate shall schedule a preliminary hearing. The hearing shall be held within a reasonable time, but in any event not later than fifteen days following the initial appearance if the defendant is in custody, and not later than forty-five days if the defendant is not in custody. However, the preliminary hearing may not be held if the defendant is indicted before the date set for the preliminary hearing. With the consent of the defendant and with a showing of good cause, taking into account the public interest and the proper disposition of criminal cases, time limits specified in this section may be extended one or more times by the committing magistrate. In the absence of consent by the defendant, time limits may be extended by the committing magistrate only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice.

Source: SDC 1939 & Supp 1960, § 34.1401; SDCL § 23-27-1; SL 1978, ch 178, § 38; SL 1991, ch 187, § 5; SL 2000, ch 263 (Supreme Court Rule 00-9); SL 2007, ch 304 (Supreme Court Amended Rule 06-72), eff. Nov. 1, 2006; SL 2013, ch 101, § 52.

23A-4-4. Advice to defendant and admission to bail when initial appearance before another magistrate--Initial appearance without warrant--Transmittal of files to appropriate court.

Subject to §§ 23A-17-1 to 23A-17-4, inclusive, if a defendant is taken before a committing magistrate who did not issue the warrant, or in case no warrant has been issued, the committing magistrate shall inform him of the matters set out in § 23A-4-3 and admit the defendant to bail as provided by § 23A-2-4 or chapter 23A-43. Within three days thereafter, the committing magistrate shall transmit the minutes of the proceedings and all papers in the case, including bail if posted, to the court which issued the warrant. If no warrant has been issued, the transcript and papers shall be transmitted to the court where the complaint is filed or to the court in which the venue of the offense lies.

Source: SDC 1939 & Supp 1960, §§ 34.1623, 34.1624; SDCL, §§ 23-22-27 to 23-22-30; SL 1978, ch 178, § 39.

23A-4-5. Transfer to magistrate judge or circuit court for preliminary hearing.

Either the defendant or the prosecuting attorney may, at any time prior to the commencement of a preliminary hearing before a lay magistrate, make a motion that the proceedings be transferred to a magistrate judge or to the circuit court. Upon such a motion the lay magistrate shall transmit a certified statement of all proceedings and papers connected with the action to the magistrate judge or the circuit court. Thereafter the action shall proceed as if it had been commenced therein before the magistrate judge or a circuit court judge. A preliminary hearing is commenced at the time the first witness is sworn.

Source: SL 1966, ch 118; SL 1976, ch 163, § 1; SDCL Supp, § 23-27-11; SL 1978, ch 178, § 40; SL 1989, ch 205.

23A-4-6. (Rule 5.1(a)) Holding for trial when probable cause shown on preliminary hearing--Evidence received.

If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the committing magistrate shall forthwith hold him to answer in the trial court of the county having jurisdiction of the offense. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. The rules of evidence shall apply, except that an objection to evidence on the ground that it was acquired by unlawful means is not properly made at the preliminary hearing. Motions to suppress such evidence must be made to the trial court as provided in §§ 23A-8-3 to 23A-8-9, inclusive.

Source: SDC 1939 & Supp 1960, §§ 34.1404, 34.1407; SDCL, §§ 23-27-9, 23-27-16; SL 1978, ch 178, § 41; SL 1979, ch 159, § 2.

23A-4-7. (Rule 5.1(b)) Discharge and dismissal in absence of probable cause--Subsequent prosecution on same offense.

If from the evidence it appears that there is not probable cause to believe that an offense has been committed or that the defendant committed it, the committing magistrate shall dismiss the complaint and discharge the defendant. The discharge of a defendant does not preclude a prosecuting attorney from instituting a subsequent prosecution for the same offense.

Source: SDC 1939 & Supp 1960, § 34.1406; SDCL, § 23-27-13; SL 1978, ch 178, § 42.

23A-4-8. (Rule 5.1(c)) Record of proceedings on preliminary hearing--Cost--Transmittal of papers to trial court--Limitation of access to record.

A verbatim record of the proceeding in each preliminary hearing shall be made under the direction of the committing magistrate upon request of either the prosecuting attorney or the defendant. A copy of the transcript of the record of the proceeding shall be furnished to the defendant and to the prosecuting attorney if either requests it. If a transcript is requested by the defendant and the committing magistrate finds that the defendant is indigent, its cost shall be borne by the county where the venue of the alleged offense was originally laid. In such case the committing magistrate shall follow the procedures set forth in chapter 23A-40. At the conclusion of the preliminary hearing the committing magistrate shall forthwith transmit to the clerk of the trial court having jurisdiction of the offense, all papers of the proceeding, any bail taken by him, and all exhibits received in the hearing. The circuit court may, for good cause shown, limit access to the record of the proceeding.

Source: SDC 1939, §§ 34.1405, 34.1409; SL 1957, ch 180; SDCL, §§ 23-27-12, 23-27-21; SL 1978, ch 178, § 43.