Colo. R. Crim. P. 5
Colo. R. Crim. P. 5
Annotation I. General Consideration. Law reviews. For article, "Police Interrogation in Colorado: The Implementation of Miranda", see 47 Den. L.J. 1 (1970). For article, "Hearsay in Criminal Cases Under the Colorado Rules of Evidence: An Overview", see 50 U. Colo. L. Rev. 277 (1979). For article, "Felony Preliminary Hearings in Colorado", see 17 Colo. Law. 1085 (1988). For article, "The Use of 'No Bond' Holds in Colorado", see 32 Colo. Law. 81 (November 2003). Purpose of this rule is to furnish a prophylaxis against abuses in the detention process and, more importantly, to place the accused in early contact with a judicial officer so that the right to counsel may not only be explained clearly but also be implemented upon the accused's request. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980). Limited extraterritorial effect of rule. There is limited extraterritorial effect which the procedural rules of this jurisdiction can generally be given, absent denial of constitutional rights. People v. Robinson, 192 Colo. 48, 556 P.2d 466 (1976). Statements were improperly suppressed when there wasn't an arrest. Defendant was held for the purpose of taking blood samples only. A reasonable person would understand he or she was being detained for that limited purpose and not being arrested. People v. Turtura, 921 P.2d 40 (Colo. 1996). Psychiatric examination of unconsenting party unauthorized. There is no authority in the Rules of Criminal Procedure nor in the statutes for ordering an unconsenting third party to submit to a psychiatric examination. People v. La Plant, 670 P.2d 802 (Colo. App. 1983). Applied in People v. York, 189 Colo. 16, 537 P.2d 294 (1975); People v. Salazar, 189 Colo. 429, 541 P.2d 676 (1975); People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978); People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); People v. Boyette, 635 P.2d 552 (Colo. 1981); Corr v. District Court, 661 P.2d 668 (Colo. 1983). II. Procedure Following Arrest. Purpose of subsection (a)(1) is to insure that the defendant is adequately informed of his rights. People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974). One of the central purposes of restricting unnecessary delay in bringing an arrested person before a judge is to insure that he will be fully informed of the offense involved and of his constitutional rights. People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972). See People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972). This rule was not designed to prevent incriminating statements willingly made during an unnecessary delay where there were no abuses in the detention process. People v. Roybal, 55 P.3d 144 (Colo. App. 2001). Person arrested must be taken before a county judge within a reasonable time and without unnecessary delay. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966); England v. People, 175 Colo. 236, 486 P.2d 1055 (1971). "Necessary delay". A "necessary delay" is one reasonably related to the administrative process attendant upon the arrest of the accused, viz., delays associated with fingerprinting, photographing, taking inventory of personal belongings, preparation of necessary charging documents and reports, and other legitimate administrative procedures. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980); People v. Raymer, 662 P.2d 1066 (Colo. 1983). Inadvertent delay unnecessary. Where prolonged inadvertence is the only basis for the delay, that delay is unnecessary. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980). But where arresting authorities delay the accused's judicial advisement on charges from a foreign jurisdiction until after the local charges are completely resolved, delay is unnecessary. People v. Garcia, 746 P.2d 560 (Colo. 1987). Failure to comply with this rule does not automatically invalidate a confession. Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972); People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972); People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976). Nor require granting motion to dismiss. A violation of Crim. P. 5(a) and 5(c) does not of itself automatically operate to equire the granting of a motion to dismiss charges. People v. Wiedemer, 180 Colo. 265, 504 P.2d 667 (1972). As each case must be considered on its own facts where a defendant argues that he was not taken before a county judge within the time required by this rule. Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968); Jaggers v. People, 174 Colo. 430, 484 P.2d 796 (1971); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972). Admissibility of confession dependent on compliance with Miranda. If a statement is admissible as being in compliance with "Miranda", it should not be invalidated because of noncompliance with this rule if there was no studied attempt to avoid taking the defendant before a county judge. Jaggers v. People, 174 Colo. 430, 484 P.2d 796 (1971); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972). Where defendant was in custody for at least 18 hours before subsection (a)(1) was complied with, and where during this period he was interrogated on two occasions and made incriminating statements during the interrogations, the 18-hour delay neither unfairly prejudiced the defendant nor denied him any basic constitutional right, since prior to both interrogations the defendant was properly advised as required by the Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3d 974 (1966) decision, and only thereafter did the defendant choose to give the incriminating statements. People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974). Failure to comply with this rule did not result in prejudice to the defendant, where the defendant was properly advised as required by Miranda, and thereafter chose to make incriminating statements rather than to remain silent. People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973). Where the statement was voluntarily made and the defendant was several times fully advised of his Miranda rights, any violation of this rule constituted harmless error and the trial court correctly refused to suppress the defendant's statement on this ground. People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976). And inability of defendant to show prejudice. In the absence of a factual showing of prejudice, the failure to comply with this rule does not require suppression of voluntary statements. People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976); People v. Robinson, 192 Colo. 48, 556 P.2d 466 (1976). Defendant must prove both unnecessary delay and prejudice to establish a right to relief for a violation of this rule. People v. Johnson, 653 P.2d 737 (Colo. 1982). Violation of subsection (a)(1) does not per se require suppression; rather, the defendant must show prejudice as a result of the delay. People v. La Plant, 670 P.2d 802 (Colo. App. 1983). Showing of prejudice required on motion to dismiss. And before one may prevail on a motion to dismiss charges, he must show that he would be unfairly prejudiced or would be denied some basic rights at trial because of the Crim. P. 5(a)(1) and 5(c) violation. People v. Wiedemer, 180 Colo. 265, 504 P.2d 667 (1972). In the absence of a factual showing of prejudice, the failure to comply with subsection (a)(1) does not require dismissal of a criminal charge. People v. Edwards, 183 Colo. 210, 515 P.2d 1243 (1973). Before a violation of subsection (a)(1) may be grounds for reversal, it must be shown that the defendant was unfairly prejudiced or denied some basic constitutional rights by reason of the failure to comply with the rule. People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973); People v. Hosier, 186 Colo. 116, 525 P.2d 1161 (1974). Test for prejudice. In determining the existence of prejudice the proper inquiry is whether the unnecessary delay reasonably contributed to the acquisition of the challenged evidence. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980); People v. Raymer, 626 P.2d 705 (Colo. App. 1980). To establish prejudice, a defendant must show a nexus between the unnecessary delay and the challenged evidence. In other words, a defendant must establish that the delay induced, caused, or was used to extract a confession. People v. Roybal, 55 P.3d 144 (Colo. App. 2001). In view of the important role played by this rule in speedily implementing the right to counsel especially for an indigent defendant, some important considerations on the issue of prejudice are: whether an attorney had already been retained by, or had been made available to, the defendant during the period of unnecessary delay; whether that attorney was accessible to the defendant prior to the challenged statement; and whether the defendant freely and knowingly waived the presence of the attorney in making the challenged statement to the police. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980). In determining the existence of prejudice, the appropriate inquiry is whether unnecessary delay reasonably contributed to the acquisition of any challenged evidence. The relevant time period which must be examined is the time between the arrest and the acquisition of the challenged evidence. People v. Raymer, 662 P.2d 1066 (Colo. 1983). Sufficiency of evidence showing prejudice and nature of prejudice suffered by defendant should be considered by trial court in fashioning sanction, if any, to be imposed for violation and such drastic sanction as dismissal should be imposed only when violation has rendered accused unable to fairly defend against the charges. People v. Garcia, 746 P.2d 560 (Colo. 1987). Prosecution for a misdemeanor charge was properly initiated in accordance with this rule when the defendant posted bail and executed his appearance bond, thereby waiving service of the complaint on him until his appearance date. This procedure also complies with § 16-2-112 and related rules, which do not require that a person charged with a misdemeanor be given a copy of the complaint until at or before the time he is arraigned. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991). The statutes and procedural rules do not require that a person charged with a misdemeanor be given a copy of the complaint prior to being released on bail. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991). No prejudice held shown by delay in presenting defendant before judge. Gottfried v. People, 158 Colo. 510, 408 P.2d 431 (1965); Hubbard v. Patterson, 374 F.2d 856 (10th Cir.), cert. denied, 389 U.S. 868, 88 S. Ct. 142, 19 L. Ed. 2d 144 (1967). Delay to conduct custodial interrogation is not "necessary". Where delay is occasioned by the decision of law enforcement officers to conduct a custodial interrogation of the defendant before presenting him to a judicial officer for a proper advisement of rights, then clearly such a delay is not "necessary". People v. Raymer, 662 P.2d 1066 (Colo. 1983). Presumption of regularity of proceedings. Where it is alleged prejudice resulted from noncompliance with this rule, every presumption is indulged in favor of regularity of the proceedings in the trial court, and the burden of showing error is on the party asserting it. Gottfried v. People, 158 Colo. 510, 408 P.2d 431 (1965). But interview of defendant in sheriff's office over 24 hours after arrest does not fulfill requirements of this rule. People v. Kelley, 172 Colo. 39, 470 P.2d 32 (1970). Confession during six-day delay inadmissible. Where there was a delay of six days between the time a defendant was first questioned and the time he was finally brought before a judge and advised of his rights, any statements made prior to compliance with this rule were inadmissible. Hervey v. People, 178 Colo. 38, 495 P.2d 204 (1972). Where delay not unreasonable. Where the defendant was taken before a judge on the afternoon following the evening of his arrest, this is not an unreasonable delay. People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974). Where most of delay in taking defendant before a judge was necessitated by treatment of defendant's wounds, such a delay was not unreasonable, particularly since the delay did not appear to result in coercion or in contributing to defendant's desire to talk. People v. Valencia, 181 Colo. 36, 506 P.2d 743 (1973). Noncompliance with rule may be waived by defendant. Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966). Justifiable excuse needed to bring defendant before out-of-county judge. A justifiable excuse must be shown to warrant the removal of defendant to a county seat, other than the one in which the alleged offense was committed, where a county judge is available in that county. Aragon v. People, 166 Colo. 172, 442 P.2d 397 (1968). Prosecution's remedies when case dismissed. The prosecution has one of two remedies available to it when a case is dismissed in the county court. If the case is dismissed before a preliminary hearing is held, the prosecution may appeal the order of dismissal to the district court. If the county court dismisses a charge after holding a preliminary hearing under subsection (a)(4), the exclusive remedy available to the prosecution is to request leave to file a direct information in the district court. People v. Freiman, 657 P.2d 452 (Colo. 1983). Colorado rule not applicable to defendant arrested in another state by federal agents, and federal rules of criminal procedure control. People v. Porter, 742 P.2d 922 (Colo. 1987). Posting of officers outside defendant's hospital door for the purpose of effecting an arrest upon his release from medical care not an arrest requiring compliance with this rule. People v. MacCallum, 925 P.2d 758 (Colo. 1996). III. Appearance Before Court. Judges' duties upon first appearance. Subsection (a)(2) of this rule imposes on the judge at the accused's first appearance the duty to inform him of, and to make certain that he understands, those basic rights applicable upon the initiation of formal criminal proceedings, especially his privilege against self-incrimination and his right to the appointment of an attorney at state expense if he is financially unable to retain one. People v. Heintze, 200 Colo. 248, 614 P.2d 367 (1980); Washington v. People, 158 Colo. 115, 405 P.2d 735 (1965), cert. denied, 383 U.S. 953, 86 S. Ct. 1217, 16 L. Ed. 2d 215 (1966); England v. People, 175 Colo. 236, 486 P.2d 1055 (1971). Right to counsel need not be advised where defendant already represented. When accepting a plea of guilty, the trial court is not necessarily required to advise a defendant of his right to counsel when the defendant is represented by counsel at the providency hearing. People v. Derrerra, 667 P.2d 1363 (Colo. 1983). Court may properly allow testimony concerning defendant's pre-advisement silence concerning failure to contact authorities to correct discrepancies in documents if defendant testified and the evidence of defendant's pre-advisement silence was elicited in the cross-examination of defendant for credibility purposes. People v. Taylor, 159 P.3d 730 (Colo. App. 2006). IV. Preliminary Hearing. Primary purpose of preliminary hearing is to determine whether probable cause exists to support the prosecution's charge that the accused committed a specific crime. People v. Weaver, 182 Colo. 221, 511 P.2d 908 (1973); People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973); People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). The rules of criminal procedure relating to a preliminary hearing are intended to create a preliminary screening device by affording a defendant an opportunity, at an early stage of the criminal proceedings, to challenge the sufficiency of the prosecution's evidence before an impartial judge. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974); People v. District Court, 652 P.2d 582 (Colo. 1982). A preliminary hearing provides the accused with an opportunity to challenge the sufficiency of the people's evidence at an early stage in the proceedings. The preliminary hearing is designed to weed out groundless or unsupported charges and to relieve the accused of the degradation and expense of a criminal trial. Holmes v. District Court, 668 P.2d 11 (Colo. 1983). Level of proof required. It is not necessary to introduce evidence sufficient to prove defendant's guilt beyond a reasonable doubt but evidence sufficient to permit a person of ordinary prudence to reasonably believe in defendant's guilt. People v. Walker, 675 P.2d 304 (Colo. 1984). Preliminary hearing presents forum for the presentation and assessment of evidence of probable cause and if prosecuting attorney fails to establish probable cause at a preliminary hearing, the county court is empowered to dismiss the complaint. Gallagher v. County Court, 759 P.2d 859 (Colo. App. 1988). There is no procedure for dismissing a felony complaint without prejudice. Once the filing of a felony complaint in county court is dismissed, the prosecution must either obtain a grand jury indictment or file an information directly in the district court. People v. Williams, 987 P.2d 232 (Colo. 1999). "The offense charged," within subsection (a)(4)(IV), encompasses any lesser included offense of the offense charged. Hunter v. District Court, 184 Colo. 238, 519 P.2d 941 (1974). Defendant's request for preliminary hearing after indictment has been returned is not authorized where such a request, or motion, cannot provide a foundation for the trial court's order for delivery of a requested transcript of the colloquy between the grand jury and the district attorney. People v. District Court, 199 Colo. 398, 610 P.2d 490 (1980). Demand for hearing to be by written motion. The statutory right to receive a preliminary hearing is not absolute and requires that either the defendant or his attorney, or the prosecuting attorney, file a written motion demanding the preliminary hearing. People v. Moody, 630 P.2d 74 (Colo. 1981). Although oral request may be treated as written motion. A court may treat a defendant's oral request for a preliminary hearing, as a written motion as required by this rule. People v. Driscoll, 200 Colo. 410, 615 P.2d 696 (1980). When juvenile entitled to preliminary hearing. Juveniles charged in delinquency proceedings with crimes (felonies and class 1 misdemeanors) subject to this rule and Crim. P. 7 are entitled to a preliminary hearing. Juveniles held on lesser charges are not granted a right to a preliminary hearing by statute or by rule. J.T. v. O'Rourke ex rel. Tenth Judicial Dist., 651 P.2d 407 (Colo. 1982). Prosecution not to present all evidences and witnesses. A preliminary hearing does not require that the prosecution lay out for inspection and for full examination all witnesses and evidence. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). It is unnecessary at a preliminary hearing for the prosecution to show beyond a reasonable doubt that the defendant committed the crime, or even the probability of the defendant's conviction. Instead, the trial court is obligated at the preliminary hearing to view the evidence in the light most favorable to the prosecution and the prosecution therefore is accorded latitude at the preliminary hearing to establish probable cause that the defendant committed the crime charged. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996); People v. Hall, 999 P.2d 207 (Colo. 2000). Preliminary hearing is not intended to be a mandatory procedural step in every criminal prosecution. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). And does not alter proposition that accused entitled to trial on merits. Although a preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits of the charge. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). Defendant to appear at requested preliminary hearing. When a defendant requests a preliminary hearing, he has not only the constitutional right to be present, but is under an affirmative obligation and duty to appear at the hearing. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Unless court permits defendant to waive his presence. The court may, when a timely request is made, permit the defendant to waive his presence at the preliminary hearing if the ends of justice would not be frustrated, but the tactical ploy of refusing to produce a defendant at the preliminary hearing to frustrate the prosecution's case should not be tolerated. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). Refusal to appear may constitute implied waiver of hearing. Where the judge of the county court advised counsel that the failure of the defendant to appear would constitute a waiver, the defendant's subsequent refusal to appear constituted an implied waiver and extinguished the defendant's right to a preliminary hearing in the county court. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974); People v. Abbott, 638 P.2d 781 (Colo. 1981). Right to counsel at preliminary hearing reaches constitutional proportions. Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970). Where the case against the defendant is overwhelming, the absence of counsel at the preliminary hearing is harmless error. People v. Gallegos, 680 P.2d 1294 (Colo. App. 1983). Authority to bind over on lesser included offense. The trial court which holds the preliminary hearing has the authority to bind over the defendant on a lesser included offense. People v. Hrapski, 658 P.2d 1367 (Colo. 1983). Hearing may be set beyond 30-day period. The absence of open court dates within 30-day period prescribed by this rule constitute good cause for setting a preliminary hearing for a date outside that period. People v. Hogland, 37 Colo. App. 34, 543 P.2d 1298 (1975). Evidence need not be admissible at trial. Hearsay evidence, and other evidence, which would be incompetent if offered at the time of trial, may be the bulk of evidence at a preliminary hearing. People v. Quinn, 183 Colo. 245, 516 P.2d 420 (1973). Preliminary hearing in district court after such hearing in county court. After the filing of a direct information in the district court, either the people or the defendant may demand a preliminary hearing in that court even where there has been a dismissal of a felony complaint by the county court following a preliminary hearing on the same charge. People v. Burggraf, 36 Colo. App. 137, 536 P.2d 48 (1975). The purpose of a Crim. P. 5 proceeding is to furnish a prophylaxis against abuses in the detention process and, more importantly, to place the accused in early contact with a judicial officer so that the right to counsel may not only be clearly explained but also be implemented upon the accused's request. People v. Heintze, 614 P.2d 367 (Colo. 1980); People v. Vigoa, 841 P.2d 311 (Colo. 1992). Defendant waived showing of good cause necessary to continue preliminary hearing by failing to object to setting of preliminary hearing beyond statutory time requirement. People v. Thompson, 736 P.2d 423 (Colo. App. 1987). Court has jurisdiction to dismiss charges pursuant to this rule after denying continuance where prosecution failed to demonstrate adequate, timely efforts to secure witness' attendance and such dismissal was not an abuse of discretion. Gallagher v. County Court, 759 P.2d 859 (Colo. App. 1988). District court may not review county court's probable cause finding. It is not proper for the district court to review the county court's finding of probable cause. People v. District Court, 652 P.2d 582 (Colo. 1982); People v. Atkin, 680 P.2d 1277 (Colo. App. 1984); White v. MacFarlane, 713 P.2d 366 (Colo. 1986); Blevins v. Tihonovich, 728 P.2d 732 (Colo. 1986). Direct information not available after discharge for failure to gain hearing within 30 days. Crim. P. 7(c), does not allow the filing of a direct information in the district court if the charges, first filed in county court, are dismissed before a preliminary hearing for failure of the prosecution to comply with the 30-day rule in this rule. Chavez v. District Court, 648 P.2d 658 (Colo. 1982). Factors considered when direct filing of information requested. While under Crim. P. 7(c)(2) the district attorney, with the consent of the court, may file a direct information in the district court if a preliminary hearing was held on the same charge in the county court and the accused was discharged, before the district court may properly exercise its discretion, there must be a sufficient evidentiary disclosure by the prosecution to apprise the district court of the earlier dismissal of the identical charges in the county court and the reasons for the requested refiling. When exercising its discretion in deciding whether to permit the direct filing of an information, the district court is required to balance the right of the district attorney to prosecute criminal cases against the need to protect the accused from discrimination and oppression. Holmes v. District Court, 668 P.2d 11 (Colo. 1983). No probable cause necessary to bind over habitual criminal charges. Inasmuch as habitual criminal counts do not constitute "offenses", probable cause need not be established in the preliminary hearing to bind these charges over to the district court. Maestas v. District Court, 189 Colo. 443, 541 P.2d 889 (1975). Where technical difficulties prevented defendant from obtaining a transcript of the preliminary hearing, the judge abused his discretion in denying defendant's motion for a second preliminary hearing. Such motion should have been granted because the testimony presented at the first preliminary hearing was directly relevant and significant to defendant's trial preparation, the prosecution was expected to rely on testimony presented at the preliminary hearing, and there was no alternative method of reconstructing the testimony from the preliminary hearing. Harris v. District Court, 843 P.2d 1316 (Colo. 1993). Prosecution may seek a grand jury indictment after dismissal by a county court on a preliminary hearing for lack of probable cause as an alternative to appealing to or filing a direct information in the district court. People v. Noline, 917 P.2d 1256 (Colo. 1996). Because district court applied a flawed interpretation of the law during the preliminary hearing, assessment of probable cause was in error and review requires the court to determine whether the facts, when viewed in the light most favorable to the prosecution, would induce a reasonably prudent and cautious person to entertain the belief that the defendant committed the crime charged. People v. Hall, 999 P.2d 207 (Colo. 2000). When court applies an erroneous legal standard or bases its ruling on erroneous conclusions of law at preliminary hearing, the proper standard of review is de novo, not abuse of discretion. Reviewing court must review the evidence in the light most favorable to prosecution to determine if a reasonably prudent and cautious person could entertain the belief that defendant committed the crime charged. People v. Beck, 187 P.3d 1125 (Colo. App. 2008). Where district court finds that defendant's waiver of right to preliminary hearing is ineffective, the district court has the authority to restore defendant's right to a preliminary hearing. People v. Nichelson, 219 P.3d 1064 (Colo. 2009). V. Failure to File for Preliminary Hearing. Waiver occurs when defendant fails to request preliminary hearing. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974); People ex rel. Farina v. District Court, 185 Colo. 188, 522 P.2d 589 (1974); People v. Moody, 630 P.2d 74 (Colo. 1981). And affirmative waiver not necessary. Subsection (a)(4)(I), when construed with subsection (a)(5), establishes that an affirmative waiver is not necessary to cause a defendant to lose his right to demand a preliminary hearing. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). Effect of waiver. If the defendant waives a preliminary hearing in the county court, he must be bound over for trial, and not for a subsequent preliminary hearing in the district court. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974). If the defendant elects to waive the preliminary hearing and to proceed to trial, the waiver operates as an admission by the defendant that sufficient evidence does exist to establish probable cause that the defendant committed the crimes charged. People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974); People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974). An express written waiver by a defendant of his right to a preliminary hearing operates identically to a failure to file within the time limit prescribed by this rule; both requiring the defendant's case to be bound over for trial. People v. Abbott, 638 P.2d 781 (Colo. 1981). Right not restorable by district court after waiver in county court. A defendant is not entitled to a preliminary hearing in the district court if he has previously waived a preliminary hearing in the county court. People ex rel. Farina v. District Court, 185 Colo. 18, 521 P.2d 780 (1974); People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974); People v. Abbott, 638 P.2d 781 (Colo. 1981).