Rule 5 - Initial appearance before the magistrate; bail(a)In General. - An officer making an arrest under a capias or 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 forth with 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)Initial Appearances and Arraignments by Video Conferencing. - If any person is arrested upon a warrant issued upon a complaint or capias, or arrested without a warrant, and if any such person is detained in a regional jail before an initial appearance, or if any person is detained in a regional jail and then served with a criminal complaint or other charging document charging such person with additional charges, the initial appearance on all such charges shall be conducted by video conferencing by a magistrate of the county of the charging jurisdiction. If such initial appearance cannot occur by video conferencing before a magistrate in the county of the charging jurisdiction, such initial appearance shall be conducted by video conferencing by either a magistrate of the county of arrest, if different from the county of the charging jurisdiction, or a magistrate of the county in which the regional jail is located. Provided, arraignments may be conducted by video conferencing only if the plea to be entered is a not guilty plea.(c)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 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.(d)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.(e)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.
(f)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 provision 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(c) 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 a hearing, which shall be held within 5 days of the date the motion is filed.(4) When setting the conditions of bail or bond in any case involving allegations of domestic violence, including, but not limited to, those cases in which West Virginia Code §621C-17 c applies, the magistrate setting the bail or bond shall include a condition that the defendant appear with counsel periodically for a hearing to determine wheter the defendant has been fully compliant with the conditions of bond. Such hearings shall be scheduled at the time the defendant is released on bail or bond and shall occur no less frequently than every sixty days, although the magistrate may schedule such hearings as frequently as the nature of the case may warrant.W. Va. R. Crim. Pro. Magist. Ct. 5
Adopted Effective 7/1/1988.