(1) The district attorney or a juvenile who is accused in a petition of a delinquent act that constitutes a class 1, 2, or 3 felony may demand and receive a preliminary hearing to determine if there is probable cause to believe that the delinquent act alleged in the petition was committed by the juvenile. In addition, the district attorney or a juvenile who is accused in a petition of only those delinquent acts that constitute class 4, 5, or 6 felonies which felonies require mandatory sentencing or which constitute crimes of violence as defined in section 18-1.3-406, C.R.S., or which constitute sexual offenses under part 4 of article 3 of title 18, C.R.S., may demand and receive a preliminary hearing to determine if there is probable cause to believe that the delinquent act alleged in the petition was committed by the juvenile. A preliminary hearing may be heard by a judge of the juvenile court or by a magistrate and shall be conducted as follows:
At the juvenile's advisement hearing and after the filing of the delinquency petition,the prosecution shall make available to the juvenile the discovery material required by the
Colorado rules of juvenile procedure. The juvenile or the prosecution may file a written motion for a preliminary hearing, stating the basis therefor. Upon the filing of the motion, the court shall forthwith set the matter for a hearing. The juvenile or the prosecution shall file a written motion for a preliminary hearing not later than ten days after the advisement hearing.
If the juvenile is being detained because of the delinquent act alleged in the petition,the preliminary hearing shall be held within thirty days of the filing of the motion, unless good cause for continuing the hearing beyond that time is shown to the court. If the juvenile is not being detained, it shall be held as promptly as the calendar of the court permits.
At the preliminary hearing, the juvenile shall not be called upon to plead, althoughthe juvenile may cross-examine the prosecution witnesses and may introduce evidence in his or her own behalf. The prosecution shall have the burden of establishing probable cause. The court at the hearing may temper the rules of evidence in the exercise of sound judicial discretion.
If the court determines that probable cause exists, it shall enter a finding to that effectand shall schedule an adjudicatory trial. If from the evidence it appears to the court that probable cause does not exist, it shall dismiss the delinquency petition, and the juvenile shall be discharged from any restriction or other previous temporary order stemming from the petition.
(1.5) (a) The district attorney and the juvenile who is accused in a petition of a delinquent act that constitutes a class 4, 5, or 6 felony, except those that require mandatory sentencing or which constitute crimes of violence as defined in section 18-1.3-406, C.R.S., or which constitute sexual offenses under part 4 of article 3 of title 18, C.R.S., shall not have the right to demand or receive a preliminary hearing but shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution. Such dispositional hearing may be heard by a judge of the juvenile court or by a magistrate.
(b) Any juvenile accused of a class 4, 5, or 6 felony who is not otherwise entitled to a preliminary hearing pursuant to paragraph (a) of this subsection (1.5), may demand and shall receive a preliminary hearing within a reasonable time pursuant to subsection (1) of this section, if the juvenile is in custody; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the juvenile has been released from custody prior to the preliminary hearing.
A request for review of a preliminary hearing finding entered by a magistrate shall befiled pursuant to section 19-1-108 (5.5), and review shall be conducted pursuant to said section.
The prosecution may file a motion to refile the petition in delinquency, which motionshall be accompanied by a verified affidavit stating the grounds therefor.
Source: L. 96: Entire article amended with relocations, p. 1652, § 1, effective January 1, 1997. L. 98: IP(1) amended and (1.5) added, p. 1274, § 3, effective July 1. L. 2002: IP(1) and (1.5)(a) amended, p. 1527, § 230, effective October 1. L. 2007: (2) amended, p. 2029, § 37, effective July 1.
Editor's note: (1) This section was formerly numbered as 19-2-404. Prior to relocation in 1996, the said section 19-2-404 was contained in a title that was repealed and reenacted in 1987. Provisions of that section, as it existed in 1987, are similar to those contained in 19-3102.1 as said section existed in 1986, the year prior to the repeal and reenactment of this title.
(2) The former section 19-2-705 was relocated to section 19-2-925 when this article was amended with relocations in 1996.
Cross references: For the legislative declaration contained in the 2002 act amending the introductory portion to subsection (1) and subsection (1.5)(a), see section 1 of chapter 318, Session Laws of Colorado 2002.