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Interviewer: What about with drug charges? What would justify making a drug offense a felony?
AZ Criminal Law Team Lawyer: Again, we’re getting into threshold amounts. It will depend on what the drugs are and how it’s going to be charged. It involves a huge range again. It will depend if it was manufacturing of a dangerous drug, possession or use of a dangerous drug, possession of marijuana, possession of drug paraphernalia.
Those will all be treated differently. Then it will depend on what the drug is and how much of it the person had.
Possession of a Small Amount of Marijuana Can Be Charged as a Felony
Interviewer: Are there any crimes that people typically think are not felonies that people commit?
AZ Criminal Law Team Lawyer: Some people think that if you’re driving with marijuana in your system that’s not a felony. Even personal possession of a small amount of marijuana can result in a felony.
A lot of people think that those cases would simply be misdemeanors. Or having any sort of drug paraphernalia—that could also be charged as a felony. A drug possession with intent to sell charge is much more serious than people anticipate. Those are always charged as felony.
An Initial Appearance in 24 Hours Follows Felony Charges
Interviewer: Let’s talk about the process itself. What’s the process going to be like with a felony charge, step by step?
AZ Criminal Law Team Lawyer: Well, if someone is going to be charged with a felony, they’re going to initially have their IA Hearing. If someone is arrested, they’ll have to have their initial appearance within 24 hours of being arrested. That will be where the judge will set the release conditions and they’ll let them know their next court date.
For persons out of custody, it’s usually set for the arraignment and they’ll go in front of the judge. The judge will enter a Not Guilty on their behalf and this will get set for a hearing at a later date, usually in about two weeks.
Before that, again, we get to what we were talking about before, which is whether the state is going to actually file the charges. They’ll do that through either a direct complaint, or for more serious charges, they’ll go through the grand jury.
Filing Charges through a Direct Complaint or a Case Presented to a Grand Jury
Interviewer: What are the differences between a direct complaint and a grand jury decision? What are the differences between that for someone who has never been in that situation?
Grand Jury’s Decide on Whether Probable Cause Exists Based on Evidence Presented by the Prosecution
AZ Criminal Law Team Lawyer: Grand jury is another method for initiating charges against a defendant. It’s considered a grand jury indictment, and the grand jury is comprised of 16 jurors. They determine whether probable cause exists based on evidence presented by the prosecutor. Grand jury proceedings are in secret, and their actions become public only through indictment if one is granted.
Now, if you have a private attorney, a private attorney can send a letter to the prosecuting attorney in what’s called a Trevis Letter. A Trevis Letter would detail any exculpatory evidence that might be present in a case.
If there’s any exculpatory evidence, the prosecutor has a duty to present that to the grand jury. Before a grand jury indictment happens, a private attorney or an attorney can send that Trevis Letter to that prosecutor so it could be presented to the grand jury.
But just to go through the process again, the initial appearance is the first time the person would appear in court, that’s going to be 24 hours after the arrest. That’s where they’ll tell them of the felony allegations, if they’re advised of the right to an attorney, the conditions of the release are established, and then another court date is set.
A Grand Jury Indictment Initiates the Filing of Felony Charges
Then the filing of charges is initiated by a complaint or an indictment. The prosecutor files a direct complaint in court citing which crimes were allegedly committed, and then an indictment is issued by a grand jury, which determines from evidence that the crime was committed and then the person should stand trial.
Both the direct complaint and the indictment define alleged crimes and will cite the date of offense for what laws were violated.
When Felony Charges Are Initiated by a Direct Complaint, a Preliminary Hearing Will Be Held
They can do what’s called the preliminary hearing. This is required when a felony case is initiated by a direct complaint, and the prosecutor presents evidence and witnesses to try to establish probable cause the crime was committed. The other way of initiating it, again, is the grand jury.
Then the person can have an arraignment, and this is a brief superior court hearing and it’s the defendant’s opportunity to enter a plea to the charges. Then if a defendant enters a Not Guilty, the next court date will be set.