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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW
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The Oklahoma Legal Group Blog

Recent Victory on Demurrer at Preliminary Hearing

Adam Banner - Friday, July 10, 2015

Recently, we were able to get two counts of "Acquiring Proceeds from Drug Activity" dismissed by demurrer at preliminary hearing. Anyone charged with a crime in Oklahoma needs to be fully aware of his or her rights in regards to a preliminary hearing in Oklahoma, because it is an integral part of a criminal prosecution.

Every person charged with a felony in Oklahoma is constitutionally and statutorily guaranteed a preliminary hearing. A preliminary hearing is an evidentiary hearing wherein the prosecution has the burden of proving by probable cause three issues: 1) a crime was committed, 2) it was committed in the county in which the prosecution is taking place, and 3) the person charged with the crime actually committed the crime.

The most important aspect to keep in mind regarding a preliminary hearing is that the prosecution is only required to prove the above-listed three factors by probable cause. This is an extremely low burden, and it pales in comparison to the burden of "beyond a reasonable doubt" which the prosecution must meet at a criminal jury trial.

For this reason, the majority of counts are "bound over" for trial at preliminary hearing. When a count or charge is bound over, it means that the judge decided that the prosecution presented sufficient evidence to show probable cause that the 3 above-listed issues were satisfied. Such a result makes sense when one realizes that some judge has already determined that there was probable cause to issue the arrest warrant for the individual charged with the crime in the first place. 

Consequently, criminal defense lawyers do not necessarily go into a preliminary hearing hoping to get the counts demurred or dismissed. Often times, the defense lawyer knows there is likely at least probable cause apparent in the case based on the evidence he or she has received prior to the hearing. In that case, the criminal defense attorney will make it his or her mission to find out as much information possible about the allegations and also nail down any witness testimony. For this reason, it is imperative every innocet person invoke his or her right to a preliminary hearing if he or she is seriously contemplating fighting the allegations at a jury trial.

However, a criminal defendant also has a right to waive his or her preliminary hearing. This will usually only happen for the purposes of negotiations between the defense lawyer and the prosecution. Often times the prosecution will pull a potential deal off the table and no longer negotiate for a plea agreement if the criminal defendant pursues a preliminary hearing. In most of these cases though, it does not matter if the prosecution pulls the deal, because the defendant plans on going to trial anyways and does not want to plead guilty.

In regards to the charge of Acquiring Proceeds from Drug Activity, under Oklahoma law:

It is unlawful for any person knowingly or intentionally to receive or acquire proceeds and to conceal such proceeds, or engage in transactions involving proceeds, known to be derived from any violation of the Uniform Controlled Dangerous Substances Act, Section 2-101 et seq. of this title, or of any statute of the United States relating to controlled dangerous substances as defined by the Uniform Controlled Dangerous Substances Act...

As you can tell from the italicized language, the laws dealing with drug proceeds in Oklahoma can be interpreted fairly broadly. Some judges make the mistake of allowing the prosecution to move forward with "drug proceed" allegations if they can show probable cause that the money in question was only in close proximity to drugs. That situation, however, is not sufficient under the law. 

In our client's case, we were thankfully able to argue to a judge who read the law and interpreted it correctly.

 






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