What Is a 3.5 Hearing?

What Is a 3.5 Hearing?

As COVID restrictions ease up Jury Trials are starting back up and there is a HUGE backlog of cases in every jurisdiction. As a result I figure it's time to give some brief explanations.


With every charge and possible trial comes pretrial hearings that are different than the standard pretrial "status" type hearings. Though every hearing that is conducted is by definition a pretrial hearing because it comes before a trial, there are significant differences in what they are, what they are for, and the Court Rule that dictates their use and value. 

A motion hearing is a pretrial hearing where a party "moves" the court for some sort of hearing on some sort of issue. The moving party is called the "movant." The party files a motion to suppress evidence, or motion to dismiss, or motion to limit testimony, motion to quash a warrant, these are a few examples. 

Then there are 3.5 hearings which come under Criminal Court Rule 3.5 — CrR for Superior Court and CrRLJ for District and Municipal Court. 

This Rule is regarding statements of the Defendant, while motion hearings, under Rule 3.6, are motions of a constitutional nature are typically seeking a remedy because of a Constitutional violation by a State actor. Other types of hearings and other generic motion hearings are filed under a general rule 104. 

When a defense lawyer demands a hearing on the admissibility of the Defendant’s / Client's statements at trial, the Court MUST hold a hearing before a trial begins.  Although, some courts will begin a trial by picking a jury and then—before testimony phase—hold this hearing, but as long as the hearing is done before the State's case in chief, the Rule is complied with. 

The purpose of this hearing is to determine whether the Defendant's statements are admissible at the trial. This is because a defendant's words are typically used against a person. The hearing revolves around the point of arrest and what was said or done by the police and the Defendant. 

The criminal rule 3.5, regardless of the Court level (Superior vs District / Municipal) obligates the Courts to set this hearing when the Defendant demands such a hearing. A lawyer need not set it specifically, like other motions, because it's a constitutional issue that the Court is responsible for holding, so long as it's demanded.

Most defense lawyers will demand this hearing in their opening pleadings—called a Notice Of Appearance (NOA)—and, as stated above, these hearings must be demanded before there is an obligation to hold the hearing. The diligent and competent lawyer will make this demand early and then rely on the demand after it becomes clear the case is heading to trial.  

Some jurisdictions, Skagit County for instance, will simply set these as a matter of course in order to ensure that the hearing actually happens regardless of the demand because it is the Court that is responsible for ensuring the Defendant’s rights are protected. This appears to be a good way to realize that. 

A good defense lawyer will not rely on the Court to protect citizens accused, but rather will demand in pleadings every time the case comes around for trial to ensure that the parties know what statements are admissible. 

If no hearing is required—because the facts of the case are such that there is no issue—the Defense lawyer can strike it.  

However, even if the report makes it clear that there is no issue, an opportunity to see how the police officer will testify is always a good idea. My personal practice is to never pass up an opportunity to examine police officers prior to trial because it locks them into that testimony.  

But what is a 3.5 Hearing?

It’s a hearing where the arresting officer is called to the stand to give evidence, which comes in the form of oral testimony, as to the circumstances surrounding the arrest and any statements leading up to that, and also after the arrest whether the person was read their rights, their Miranda Rights — you know, the right to remain silent, the right to a lawyer AT THIS time, etc.

When a person is not yet under arrest, nor in custodial circumstances, Miranda is not necessary. In the typical DUI setting, a person is usually stopped by police for some traffic violation, contacted, and questions always follow. In the contact of a brief stop such as this, the driver is not deemed in custody—even if the contact turns into a roadside investigation of DUI where roadside testing is offered and conducted (a driver should always decline these tests and when doing so always cite to the advice of a lawyer — "I read a blog by Jonathan Rands and he wrote that these tests should be politely declined: No Thank You, Officer.")

Once a person is under arrest—which will happen if you do the tests, and even if you do not—or once it is clear you are under arrest, handcuffed, or placed in the police car, or the officer announces the arrest, the Defendant has a right to know the effect of their words. So the case of Miranda v. Arizona dictates that once under arrest the person needs to know their rights, and under Rule 3.5 that means the effect of their statements.

A person has the right to remain silent and this is the greatest right a person has in ensuring their defense is a strong one. While everyone has this Right, only a few  have the ABILITY

Once a police officer makes the decision to arrest for DUI, they will not undo it because a person offers to walk home. Wanting to avoid arrest or undo an arrest is where people do not remain silent, and simply make all sorts of statements that rarely help the case. Most statements after an arrest for DUI only help the prosecution of the person. Apologies are an admission. Offering to walk, an admission. Being angry at the officer—a mood swing used to show under the influence. There is only one thing that can be said after being Mirandized that helps and that is an invoking of your right by asking for "a lawyer."  

I will write another blog on this effect and value later, but for now, the conclusion of the 3.5 hearing. 

Once it is established that an arrest occurred and the person was told or warned of their Miranda Rights, the court has to determine whether the person waived the rights, meaning they wished to speak to police freely without an attorney present, or otherwise known as giving up the right. That is done by the officer stating that the person was asked if they understood the rights and if any threats or promises were made to get the person to not remain silent.

A form to sign on arrest that you understand your constitutional rights

Once a waiver is complete in the DUI process a series of Questions designed to incriminate a person are asked and the prosecution of them only gets stronger. 

ADUI Arrest Report form with 30 questions designed to incriminate

Once it has been determined that the driver was arrested, mirandized and waived properly, ALL statements are usually admissible at trial.