RULES OF CRIMINAL PROCEDURE FOR MAGISTRATE COURTS
RULE 1.  SCOPE
These rules govern the procedure in all criminal proceedings
 in the magistrate courts of the State of West Virginia.  These
 rules supplement, and in designated instances supersede, the
 statutory procedures set forth in Chapter 50 and Chapter 62 of the
 West Virginia Code.
[Effective July 1, 1988.]
RULE 2.  PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination
 of every criminal proceeding.  They shall be construed to secure
 simplicity in procedure, fairness in administration, and the
 elimination of unjustifiable expense and delay.
[Effective July 1, 1988.]
RULE 3.  COMPLAINT
The complaint is a written statement of the essential facts
 constituting the offense charged.  The complaint shall be presented
 to and sworn or affirmed before a magistrate in the county where
 the offense is alleged to have occurred.  Unless otherwise provided
 by statute, the presentation and oath or affirmation shall be made
 by a prosecuting attorney or a law enforcement officer showing
 reason to have reliable information and belief.  If from the facts stated in the complaint the magistrate finds probable cause, the
 complaint becomes the charging instrument initiating a criminal
 proceeding.
[Effective July 1, 1988; amended effective August 1, 1991; April 1,
 1993.]
RULE 4.  ARREST WARRANT OR SUMMONS UPON COMPLAINT
(a) Issuance.  If it appears from the complaint, or from an
 affidavit or affidavits filed with the complaint, that there is
 probable cause to believe that an offense has been committed and
 that the defendant has committed it, a warrant for the arrest of
 the defendant shall issue to any officer authorized by law to
 execute it.  The magistrate may restrict the execution of the
 warrant to times during which a magistrate is available to conduct
 the initial appearance.  Within the discretion of the magistrate a
 summons instead of a warrant may issue.  More than one warrant or
 summons may issue on the same complaint.  If a defendant fails to
 appear in response to the summons, a warrant shall issue.
(b) Probable Cause.  The finding of probable cause may be
 based upon hearsay evidence in whole or in part.
(c) Form.
(1) Warrant.  The warrant shall be signed by the magistrate
 and shall contain the name of the defendant or, if the defendant's
 name is unknown, any name or description by which the defendant can be identified with reasonable certainty.  It shall describe the
 offense charged in the complaint.  It shall command that the
 defendant be arrested and brought before the nearest available
 magistrate of the county in which the warrant is executed.
(2) Summons.  The summons shall be in the same form as the
 warrant except that it shall summon the defendant to appear before
 a magistrate at a stated time and place.
(d) Execution or Service; and Return.
(1) By Whom.  The warrant shall be executed by any officer
 authorized by law to arrest persons charged with offenses against
 the state.  The summons may be served by any person authorized to
 serve a summons in a civil action.
(2) Territorial Limits.  The warrant may be executed or the
 summons may be served at any place within the state.
(3) Manner.  The warrant shall be executed by the arrest of
 the defendant.  The officer need not have the warrant at the time
 of the arrest, but upon request the officer shall show the warrant
 to the defendant as soon as possible.  If the officer does not have
 the warrant at the time of the arrest, the officer shall then
 inform the defendant of the offense charged and of the fact that a
 warrant has been issued.  The summons shall be served upon a
 defendant by delivering a copy to the defendant personally, or by
 leaving it at the defendant's dwelling house or usual place of
 abode with some person of suitable age and discretion then residing
 therein and by mailing a copy of the summons to the defendant's last known address.
(4) Return.  The officer executing a warrant shall make return
 thereof to the magistrate or other officer before whom the
 defendant is brought pursuant to Rule 5.  At the request of the
 attorney for the state any unexecuted warrant shall be returned to
 and canceled by the magistrate by whom it was issued.  On or before
 the return day the person to whom a summons was delivered for
 service shall make return thereof to the magistrate before whom the
 summons is returnable.  At the request of the attorney for the
 state, made at any time while the complaint is pending, a warrant
 returned unexecuted and not canceled or a summons returned unserved
 or a duplicate thereof may be delivered by the magistrate to an
 authorized person for execution or service.
[Effective July 1, 1988; amended effective January 1, 1990;
 September 1, 1995.]
RULE 5.  INITIAL APPEARANCE BEFORE THE MAGISTRATE; BAIL
(a) In General.  An officer making an arrest under a warrant
 issued upon a complaint or any person making an arrest without a
 warrant shall take the arrested person without unnecessary delay
 before a magistrate within the county where the arrest is made.  If
 a person arrested without a warrant is brought before a magistrate,
 a complaint shall be filed forthwith which shall comply with the
 requirements of Rule 4(a) with respect to the showing of probable cause.  When a person, arrested with or without a warrant or given
 a summons, appears initially before the magistrate, the magistrate
 shall proceed in accordance with the applicable subdivision of this
 rule.
(b) Misdemeanor Offense Triable Before a Magistrate.  If the
 charge against the defendant is an offense triable by a magistrate,
 unless the defendant waives the right to a trial on the merits, the
 magistrate shall proceed in accordance with the rules of procedure
 set forth herein.  The magistrate shall inform the defendant of the
 complaint and any affidavit filed therewith, of the right to retain
 counsel, of the right to request the assignment of counsel if the
 defendant is unable to obtain counsel, of the right to demand a
 jury trial, and of the general circumstances under which the
 defendant may secure pretrial release.  The magistrate shall inform
 the defendant that he or she is not required to make a statement
 and that any statement made by the defendant may be used against
 him or her.  The magistrate shall allow the defendant reasonable
 time and opportunity to consult with counsel or with at least one
 relative or other person for the purpose of obtaining counsel or
 arranging bail as provided by statute or in these rules.
(c) Demand for Jury Trial.  When a magistrate informs a
 defendant of the right to demand a jury trial, the defendant shall
 also be informed that the demand must be made to the court in
 writing either within 20 days after the initial appearance or 20
 days after an attorney is appointed by the circuit court, whichever applies, or the right will be waived and the trial will be before
 the magistrate without a jury.  The magistrate shall further inform
 the defendant that if a jury trial is demanded, the demand may not
 be withdrawn if the prosecuting attorney objects to the withdrawal.
(d) Offenses Not Triable by the Magistrate.  If the charge
 against the defendant is to be presented for indictment, the
 defendant shall not be called upon to plead.  The magistrate shall
 inform the defendant of the complaint and any affidavit filed
 therewith, of the right to retain counsel, of the right to request
 the assignment of counsel, of the right to request the 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 magistrate shall inform the defendant that he or she
 is not required to make a statement and that any statement made by
 the defendant may be used against him or her.  The magistrate shall
 also inform the defendant of the right to a preliminary
 examination.  The magistrate shall allow the defendant reasonable
 time and opportunity to consult with counsel or with at least one
 relative or other person for the purpose of obtaining counsel or
 arranging bail as provided by statute or in these rules and shall
 admit the defendant to bail as provided by statute or in these
 rules.
If the offense is to be presented for indictment, a defendant
 is entitled to a preliminary examination unless waived.  If the
 defendant waives preliminary examination, the magistrate clerk shall transmit forthwith to the clerk of the circuit court all
 papers in the proceeding.  The magistrate court clerk shall also
 transmit to the prosecuting attorney a copy of the criminal case
 history sheet.  Thereafter, the proceeding shall remain within the
 jurisdiction of the circuit court and shall not be remanded to the
 magistrate.  If the defendant does not waive the preliminary
 examination, the magistrate shall schedule a preliminary
 examination.  Such examination shall be held within a reasonable
 time but in any event not later than 10 days following the initial
 appearance if the defendant is in custody and no later than 20 days
 if the defendant is not in custody; provided, however, that the
 preliminary examination shall not be held if the defendant is
 indicted or if an information against the defendant is filed in
 circuit court before the date set for the preliminary examination.
 With the consent of the defendant and upon a showing of good cause,
 taking into account the public interest in the prompt disposition
 of criminal cases, time limits specified in this subdivision may be
 extended one or more times by a magistrate.  In the absence of such
 consent by the defendant, time limits may be extended by a judge of
 the circuit court only upon a showing that extraordinary
 circumstances exist and that delay is indispensable to the
 interests of justice.
(e) Bail.
(1) The magistrate who originally sets bail retains
 jurisdiction with respect to bail only until the case is assigned. The assigned magistrate shall then have jurisdiction until the
 preliminary examination is held or waived, until the trial is held,
 or until the case is otherwise disposed of, subject to the proviso
 of Rule 2(a) of the Administrative Rules for the Magistrate Courts.
(2) A third party may secure pretrial release in the absence
 of a defendant who is in custody when the record contains a written
 acknowledgment of the terms and conditions of pretrial release
 signed by a magistrate and the defendant.  Any magistrate may
 accept bail in the absence of the defendant provided that the third
 party reviews and agrees to the same terms and conditions of
 pretrial release by executing a separate written acknowledgment
 before the magistrate.  No change may be made in the terms and
 conditions of pretrial release between the acknowledgment executed
 by the defendant and magistrate and the acknowledgment executed by
 the third party.
(3) Except as provided by Rule 5.2(d) of these rules, a
 magistrate may grant or deny a motion for change of bail or bond
 only after due notice to both the defendant and the attorney for
 the state and upon hearing, which shall be held within 5 days of
 the date the motion is filed.
[Effective July 1, 1988; amended effective August 1, 1991; January
 1, 1993; July 1, 1994; September 1, 1995; September 1, 1996.]
RULE 5.1  PRELIMINARY EXAMINATIONS
(a) Probable Cause Finding.  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 magistrate shall
 forthwith hold the defendant to answer in circuit court.  The state
 shall be represented by the prosecuting attorney at the preliminary
 examination.  Witnesses shall be examined and evidence introduced
 for the state under the rules of evidence prevailing in criminal
 trials generally except that hearsay evidence may be received, if
 there is a substantial basis for believing:
(1) That the source of the hearsay is credible;
(2) That there is a factual basis for the information
 furnished; and
(3) That it would impose an unreasonable burden on one of the
 parties or on a witness to require that the primary source of the
 evidence be produced at the hearing.
The defendant may cross-examine adverse witnesses and may
 introduce evidence.  Objections to evidence on the ground that it
 was acquired by unlawful means are not properly made at the
 preliminary examination.  Motions to suppress must be made to the
 trial court as provided in Rule 12 of the Rules of Criminal
 Procedure applicable to circuit courts.  On motion of either the
 state or the defendant, witnesses shall be separated and not
 permitted in the hearing room except when called to testify.
(b) Discharge of Defendant.  If from the evidence it appears
 that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the magistrate shall
 dismiss the complaint and discharge the defendant.  The discharge
 of the defendant shall not preclude the state from instituting a
 subsequent prosecution for the same offense.
(c) Records.
(1) A magistrate shall record electronically every preliminary
 examination conducted.  If by reason of unavoidable cause it is
 impossible to record all or part of a preliminary examination
 electronically, a magistrate may proceed with the hearing but shall
 make a written record of the failure to do so and of the cause
 thereof.
A magnetic tape or other electronic recording medium on which
 a preliminary examination is recorded shall be indexed and securely
 preserved by the magistrate court clerk or, as assigned by the
 clerk, by the magistrate assistant.
For evidentiary purposes, a duplicate of such electronic
 recording prepared by the clerk of the magistrate or of the circuit
 court shall be a "writing" or "recording" as those terms are
 defined in Rule 1001 of the West Virginia Rules of Evidence , and
 unless the duplicate is shown not to reflect the contents
 accurately, it shall be treated as an original in the same manner
 that data stored in a computer or similar data is regarded as an
 "original" under such rule.
When requested by the state, the defendant, or any interested
 person, the clerk of the magistrate or of the circuit court shall provide a duplicate copy of the tape or other electronic recording
 medium of any preliminary examination held.  Any defendant
 requesting the copy who has not been permitted to proceed with
 appointed counsel, any prosecutor who does not supply a blank tape,
 and any other person shall pay to the magistrate court an amount
 equal to the actual cost of the tape or other medium or the sum of
 five dollars, whichever is greater.
Preparation of a transcript of the record or any designated
 portions thereof shall be the responsibility of the party desiring
 such transcript.
(2) If probable cause is found at the conclusion of a
 preliminary examination in magistrate court:  (i) the magistrate
 clerk shall transmit to the prosecuting attorney a copy of the
 criminal case history sheet; (ii) when the proceeding is recorded
 electronically, the magistrate clerk shall transmit forthwith to
 the clerk of the circuit court all papers and electronic records of
 the proceeding; if for unavoidable cause the proceeding or part
 thereof has not been recorded electronically, the magistrate shall
 promptly make or cause to be made a summary written record of the
 proceeding, and the magistrate clerk shall transmit forthwith to
 the clerk of the circuit court such record and all other papers of
 the proceeding.  Once the records of the proceeding are transmitted
 to the clerk of the circuit court, the felony charge shall remain
 within the sole jurisdiction of the circuit court and shall not be
 remanded to the magistrate for any purpose.
[Effective July 1, 1988; amended effective January 1, 1993; July 1,
 1994; September 1, 1995.]
RULE 5.2  OFFENSE ARISING IN ANOTHER COUNTY
(a) Appearance Before Magistrate.  If a person is arrested on
 a warrant issued upon a complaint, information or indictment, or
 without a warrant for an offense alleged to have been committed in
 a county other than the county of arrest, all papers in the
 proceeding shall be promptly transmitted to a magistrate or circuit
 court of the county having jurisdiction of the offense for
 preliminary examination or trial.  If the defendant is unable to
 provide bail in the county of arrest, he or she shall be committed
 to the custody of an officer who shall take the defendant without
 unnecessary delay before a magistrate or judge of a circuit court
 wherein the examination or trial is to be held, there to be dealt
 with as provided by these rules.
(b) Arrest of Probationer.  If a person is arrested for a
 violation of probation in a county other than the county of
 supervision, such person shall be taken without unnecessary delay
 before the nearest available magistrate and then processed in
 accordance with the provisions of subdivision (a) of this rule upon
 the production of certified copies of the probation order, the
 warrant, the application for the warrant and upon a finding that
 the person before the magistrate is the person named in the
 warrant.
(c) Arrest for Failure to Appear.  If a person is arrested on
 a warrant in a county other than that in which the warrant was
 issued, and the warrant was issued because of the failure of the
 person named therein to appear as required pursuant to subpoena or
 the terms of that person's release, the person arrested shall be
 taken without unnecessary delay before the nearest available
 magistrate.  Upon production of the warrant or a certified copy
 thereof and upon a finding that the person before the magistrate is
 the person named in the warrant, the magistrate shall hold the
 person to answer in the county in which the warrant was issued.
(d) Bail.  If bail was previously fixed in another county
 where a warrant, information or indictment issued, the magistrate
 shall take into account the amount of bail previously fixed and the
 reasons set forth therefor, if any, but will not be bound by the
 amount of bail previously fixed.  If the magistrate fixes bail
 different from that previously fixed, he or she shall set forth the
 reasons for such action in writing.
[Adopted effective January 1, 1989; amended effective September 1,
 1995.]
RULE 5.3  FAILURE TO APPEAR UPON A SUMMONS
The magistrate court clerk shall notify the prosecuting
 attorney on a regular basis when a defendant fails to answer or
 appear in response to a summons.  The magistrate court clerk shall notify the Division of Motor Vehicles of such failure to answer or
 appear in cases involving violations of any provision of Chapter
 17, 17A, 17B, 17C or 17D of the West Virginia Code, and for any
 criminal violation charged on or after July 9, 1993, with the
 exception of parking violations or other unattended vehicle
 violations.  Notification shall be in the same form as that
 provided by Rule 22 and Rule 7(e) of these Rules and shall be sent
 within 15 days from the scheduled date to appear unless the
 defendant answers or appears within that time.
Upon a motion by the prosecuting attorney, the magistrate may
 issue a warrant for arrest of a defendant who without providing
 good cause has failed to answer or appear at any stage of a
 proceeding in response to a summons.
[Adopted effective September 1, 1993.]
RULE 6.  AMENDMENT OF COMPLAINT, WARRANT, AND SUMMONS; HARMLESS
 ERROR
(a) Amendment.  Upon motion, the magistrate shall permit the
 complaint, warrant, summons or any other document to be amended at
 any time before verdict if no additional or different offense is
 charged and if substantial rights of the defendant are not
 prejudiced.
(b) Harmless Error.  Error in the citation of the statute or
 rule or regulation which the defendant is alleged to have violated, or the omission of the citation shall not be ground for dismissal
 or for reversal of a conviction if the error or omission did not
 mislead the defendant to his or her prejudice.
[Effective July 1, 1988; amended effective August 1, 1991.]
RULE 7.  CITATION FOR TRAFFIC AND NATURAL RESOURCES OFFENSES
(a) Citation.  In lieu of the procedures set forth in Rules 3
 and 4 of these rules, a law enforcement officer may prepare and
 serve a citation as the instrument charging a misdemeanor violation
 of Chapter 17, 17A, 17B, or 17C, except as provided by West
 Virginia Code §17C-19-3, 17D, or 20 of the West Virginia Code.  The
 citation must state the offense charged and notify the defendant of
 the requirement to answer or appear in response to the charge, by
 a date certain, in the magistrate court of the county where the
 offense occurred.
(b) Pleas of Guilty or No Contest.  The citation shall be a
 sufficient document to which the defendant may plead guilty or no
 contest.  Before accepting a plea of guilty or no contest, the
 magistrate shall inform the defendant of the charge and the
 penalties the court may impose.  The magistrate shall also advise
 that the defendant has the right to be represented by an attorney,
 that the defendant may plead not guilty to the charge and demand a
 trial by jury in accordance with the time limits set forth in Rule
 5(c) of these rules, and that by pleading guilty the defendant waives all of these rights.
(1) For violations of West Virginia Code §17B-4-3 (driving
 while license suspended or revoked), West Virginia Code §17C-5-1
 (negligent homicide), West Virginia Code §17C-5-2 (DUI), West
 Virginia Code §17C-5-3 (reckless driving) and West Virginia Code
 Chapter 20 offenses involving injury to the person, a plea of
 guilty or no contest shall be made in person before a magistrate in
 the county where the offense occurred.
(2) For all other citations such pleas of guilty or no contest
 may also be made by telephone to a magistrate in the county where
 the offense occurred.  In such instances the magistrate, upon
 advising the defendant, accepting the plea, and imposing the fine
 and costs, shall direct the defendant to complete the guilty plea
 form on the citation and to deliver by mail to the magistrate court
 the citation and all fines and costs assessed.
(c) Plea of Not Guilty.  A plea of not guilty to a traffic or
 natural resources citation may be made in person before a
 magistrate in the county in which the offense was charged, or by
 mail to the magistrate court of such county.  In such instances, a
 complaint must be filed at or prior to trial which complies with
 the probable cause requirements of Rule 4 and an initial appearance
 conducted pursuant to the procedures set forth in Rule 5 of these
 rules.  Upon motion of the defendant, a continuance may be granted
 if necessary to provide time to meet any new information set forth
 in the complaint and if the refusal to grant such continuance would substantially prejudice the rights of the defendant.
(d) Motion to Dismiss.  A defendant may seek dismissal of a
 traffic or natural resources citation prior to trial by filing, on
 a form provided by the magistrate court, a motion to dismiss.  Such
 motion shall state with particularity the grounds upon which
 dismissal is sought.  Upon receipt of such motion, the magistrate
 court shall promptly forward a copy of such motion to the
 prosecuting attorney.  If upon 10 days from the date of delivery of
 such motion to the prosecuting attorney no objection is made, the
 magistrate may dismiss the citation.  If within 10 days from the
 date of delivery the prosecuting attorney objects to such motion,
 the case shall proceed to hearing or trial.
(e) Failure to Appear.  The magistrate court clerk on a
 regular basis shall notify the prosecuting attorney of citations
 for which the defendant failed to answer or appear.  The magistrate
 court clerk shall notify the Division of Motor Vehicles of all such
 instances involving a failure to answer or appear in response to a
 citation charging a violation of any provision of Chapter 17, 17A,
 17B, 17C, or 17D of the West Virginia Code, and for any criminal
 violation charged on or after July 9, 1993, with the exception of
 parking violations and other violations for which a citation may be
 issued to an unattended vehicle.  Such notification shall be
 provided in the same form as that provided by Rule 5.3 and Rule 22
 of these Rules and shall be sent within 15 days from the scheduled
 date to answer or appear unless the defendant answers or appears within that time.
Upon motion by the prosecuting attorney, the magistrate may
 issue a warrant for the arrest of a defendant who without showing
 good cause has failed to answer or appear at any stage of a
 proceeding in response to a citation.
[Effective July 1, 1988; amended effective August 1, 1991;
 September 1, 1993; July 1, 1994.]
RULE 8.  CITATION FOR OTHER OFFENSES
In lieu of the procedures set forth in Rules 3 and 4 of these
 Rules, a law enforcement officer may issue a citation for any
 offense for which a citation in lieu of an arrest is authorized by
 W.Va. Code §62-1-5a.  For such citations, the procedures set forth
 in Rules 7(a), 7(b)(1), 7(c), and 7(e) shall apply.
[Effective July 1, 1988; amended effective September 1, 1993.]
RULE 9.  PLEA PROCEEDING
Except as otherwise provided by Rule 7(b), the plea proceeding
 shall be conducted in open court and shall consist of reading the
 complaint to the defendant or stating to the defendant the
 substance of the charge and calling on the defendant to plead
 thereto.  The reading of the complaint may be waived by the defendant in open court.  The defendant shall be given a copy of
 the complaint before being called upon to plead.
[Effective July 1, 1988; amended effective September 1, 1993.]