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29-07 Preliminary Examinations

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CHAPTER 29-07PRELIMINARY EXAMINATIONS29-07-01.Magistrate's duty - Testimony may be taken.Superseded byN.D.R.Crim.P., Rules 5, 44.29-07-01.1.Payment of expenses for defense of indigents - Reimbursement ofindigent defense costs and expenses - Indigent defense administration fund - Continuing<br>appropriation.1.Lawyers provided to represent indigent persons must be compensated at a<br>reasonable rate to be determined by the commission on legal counsel for indigents.<br>Expenses necessary for the adequate defense of an indigent person prosecuted in<br>district court, other than for a violation of a home rule county's ordinance, when<br>approved by the commission, must be paid by the state. Expenses necessary for<br>the adequate defense of an indigent person prosecuted for violation of a home rule<br>county's ordinance must be paid by the home rule county. Expenses necessary for<br>the adequate defense of an indigent person prosecuted in municipal court, when<br>approved by the judge, must be paid by the city in which the alleged offense took<br>place. The city shall also pay the expenses in any matter transferred to district court<br>pursuant to section 40-18-15.1 and in any appeal taken to district court from a<br>judgment of conviction in municipal court pursuant to section 40-18-19. A defendant<br>requesting representation by counsel at public expense, or for whom counsel<br>provided at public expense without a request is considered appropriate by the court,<br>shall submit an application for indigent defense services.For an application forindigent defense services in the district court, a nonrefundable application fee of<br>twenty-five dollars must be paid at the time the application is submitted. The district<br>court may extend the time for payment of the fee or may waive or reduce the fee if<br>the court determines the defendant is financially unable to pay all or part of the fee.<br>If the application fee is not paid before disposition of the case, the fee amount must<br>be added to the amount to be reimbursed under this section.Application feescollected under this subsection must be forwarded for deposit in the indigent<br>defense administration fund established under subsection 4.2.A defendant for whom counsel is provided at public expense, subject to this<br>subsection, shall reimburse the state, home rule county, or city such sums as the<br>state, home rule county, or city expends on the defendant's behalf.a.At the time counsel is provided for a defendant, the court shall advise the<br>defendant of the defendant's potential obligation to reimburse the appropriate<br>governmental entity the amounts expended on behalf of the defendant.b.Unless it finds that there is no likelihood that the defendant is or will be able to<br>pay attorney's fees and expenses, the court, in its judgment of conviction, and<br>in any order or amended judgment entered following a revocation or other<br>postjudgment proceeding, shall order the defendant to reimburse the presumed<br>amount of indigent defense costs and expenses, as determined by the<br>commission, and shall notify the defendant of the right to a hearing on the<br>reimbursement amount.If the defendant or prosecutor requests a hearingwithin thirty days of receiving notice under this subdivision, the court shall<br>schedule a hearing at which the actual amount of attorney's fees and expenses<br>must be shown. In determining the amount of reimbursement and method of<br>payment, the court shall consider the financial resources of the defendant and<br>the nature of the burden that reimbursement of costs and expenses will<br>impose.c.A defendant who is required to reimburse indigent defense costs and expenses<br>and who is not willfully in default in that reimbursement may at any time petitionPage No. 1the court to waive reimbursement of all or any portion of the attorney's fees and<br>expenses. If the court is satisfied that reimbursement of the amount due will<br>impose undue hardship on the defendant or the defendant's immediate family,<br>the court may waive reimbursement of all or any portion of the amount due or<br>modify the method of payment.3.The attorney general, the state's attorney of the home rule county, or the prosecuting<br>attorney of the city in which the alleged offense took place, if reimbursement has not<br>been received, shall seek civil recovery of any amounts expended on the<br>defendant's behalf anytime the attorney general, state's attorney, or city attorney<br>determines the person for whom counsel was appointed may have funds to repay<br>the state, home rule county, or city within six years of the date such amount was<br>paid on that person's behalf. A person against whom civil recovery is sought under<br>this subsection is entitled to all exemptions accorded to other judgment debtors.<br>The attorney general, state's attorney, or prosecuting attorney may contract with a<br>private sector collection agency for assistance in seeking recovery of such funds.<br>Before referring the matter to a collection agency, the state's attorney shall notify the<br>person who is the subject of the collection action.4.The indigent defense administration fund is a special fund in the state treasury. The<br>state treasurer shall deposit in the fund all application fees collected under<br>subsection 1.All moneys in the indigent defense administration fund areappropriated on a continuing basis to the commission on legal counsel for indigents<br>to be used in the administration of the indigent defense system.29-07-02. Waiver of examination. Superseded by N.D.R.Crim.P., Rule 5.29-07-03. Examination of witnesses. If the accused waives preliminary examination,the state's attorney may cause the testimony of any witness or witnesses to be taken in writing as<br>is provided by law, with the same force and effect as if such examination had not been waived.<br>Such testimony must be returned by the magistrate to the district court of the magistrate's county<br>as in other cases.29-07-04. Magistrate must allow accused counsel. Superseded by N.D.R.Crim.P.,Rules 5, 44.29-07-05. The preliminary examination. Superseded by N.D.R.Crim.P., Rule 5.29-07-06. Change of place of hearing - Procedure. Whenever a person accused of apublic offense is brought before a municipal judge for examination, and, at any time before the<br>examination is commenced, the person files with the municipal judge an affidavit stating that by<br>reason of the bias or prejudice of the municipal judge the person believes a fair or impartial<br>examination cannot be had before the municipal judge, the municipal judge shall transfer the<br>action, and all the papers therein, including a certified copy of the municipal judge's docket<br>entries, to a district judge serving the county. The state's attorney, or assistant state's attorney,<br>in the same manner and for the same reasons as the defendant, may obtain a transfer of the<br>action from the municipal judge before whom the action was commenced, or from the district<br>judge to whom it has been transferred on the application of the state, in which event it must be<br>transferred to another district judge designated by the presiding judge of the judicial district. The<br>place of examination cannot be changed more than once by each party under this section.29-07-07. Adjournment - Three days limit. Superseded by N.D.R.Crim.P., Rule 5.29-07-08. Disposition of accused on adjournment. Superseded by N.D.R.Crim.P.,Rule 5.29-07-09. Commitment for examination. Superseded by N.D.R.Crim.P., Rule 5.29-07-10. Summoning of witnesses. Superseded by N.D.R.Crim.P., Rule 5.Page No. 229-07-11.Procedure on examination - Reading complaint.Superseded byN.D.R.Crim.P., Rule 5.1.29-07-12. How witnesses examined. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-13.Witnesses kept separate - Exclusion during the examination of anywitness.The magistrate may exclude all witnesses who have not been examined.Themagistrate also may cause the witnesses to be kept separate and to be prevented from<br>communicating with each other until all are examined.29-07-14. Persons not excluded. The magistrate holding a preliminary hearing, uponthe request of the defendant, may exclude from the examination every person except the<br>magistrate's clerk, the prosecutor and the prosecutor's counsel, the attorney general of the state,<br>the state's attorney of the county, the defendant and the defendant's counsel, and such other<br>person as the defendant may designate, and the officer having the defendant in custody, but<br>such exclusion, and the extent thereof, is within the discretion of the court.29-07-15. Testimony reduced to writing - Conditions - Payment. Superseded byN.D.R.Crim.P., Rule 5.1.29-07-16.Accused may produce witnesses after state concludes testimony.Superseded by N.D.R.Crim.P., Rule 5.1.29-07-17. Keeping and disposition of depositions - Violation is a misdemeanor.Superseded by N.D.R.Crim.P., Rule 5.1.29-07-18. Procedure - Accused discharged. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-19. Costs taxed when prosecution malicious. Superseded by N.D.R.Crim.P.,Rule 5.1.29-07-20. Accused held to answer. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-21.If offense not bailable defendant committed.Superseded byN.D.R.Crim.P., Rule 5.1.29-07-22. When offense bailable. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-23. When bail not taken. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-24. Commitment - Procedure. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-25. Form of commitment. Superseded by N.D.R.Crim.P., Rules 5.1, 58.29-07-26.Magistrate must deliver papers to district court.Superseded byN.D.R.Crim.P., Rule 5.1.29-07-27. Charge investigated by magistrate if corporation appears. Superseded byN.D.R.Crim.P., Rule 5.1.29-07-28.Appearance by corporation - Hearing - Certificate of magistrate -Procedure. Superseded by N.D.R.Crim.P., Rule 5.1.29-07-29.Return of certificate of probable cause - Procedure.Superseded byN.D.R.Crim.P., Rule 5.1.29-07-30.Information or indictment against corporation without preliminaryhearing. Superseded by N.D.R.Crim.P., Rule 5.1.Page No. 329-07-31.Effect of failure by corporation to answer summons.Superseded byN.D.R.Crim.P., Rule 5.1.29-07-32. Record of magistrate to be kept on docket. Superseded by N.D.R.Crim.P.,Rule 5.1.Page No. 4Document Outlinechapter 29-07 preliminary examinations