Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 10. PRELIMINARY EXAMINATION · Part 1. General Provisions
Montana Code Annotated

Mont. Code Ann. § 46-10-105 (2026)

Preliminary Examination -- When Held

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 10
  4. Part 1
  5. 46-10-105 Preliminary examination -- when held

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 10. PRELIMINARY EXAMINATION

Part 1. General Provisions

Preliminary Examination -- When Held

46-10-105. Preliminary examination -- when held. After the initial appearance, in all cases in which the charge is triable in district court, the justice's court shall, within a reasonable time, hold a preliminary examination unless:

(1) the defendant waives a preliminary examination;

(2) the district court has granted leave to file an information;

(3) an indictment has been returned; or

(4) the case is triable in justice's court.

History: En. 95-902 by Sec. 1, Ch. 196, L. 1967; R.C.M. 1947, 95-902(part); amd. Sec. 89, Ch. 800, L. 1991; Sec. 46-7-103, MCA 1989; redes. 46-10-105 by Code Commissioner, 1991.

Notes of Decisions
Cited in 12 cases (3 in the last 5 years), 1997–2025 · leading case: State v. McElderry, 944 P.2d 230 (Mont. 1997).
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State v. McElderry, 944 P.2d 230 (Mont. 1997). · cites it 23× “We vacate the District Court’s judgment and remand this case for further consideration consistent with this opinion.”
State v. Haller, 2013 MT 199 (Mont. 2013). · cites it 9× “We review a district court’s determination of what constitutes a reasonable time under §46-10-105, MCA, for an abuse of discretion.”
State v. Gatlin, 2009 MT 348 (Mont. 2009). · cites it 8× “¶ 12 Gatlin filed a motion to dismiss the Information because there was no preliminary examination and the Information was not filed within a reasonable time, as is required by § 46-10-105, MCA. Gatlin also moved to dismiss the Information because he was not informed of his…”
State v. Robison, 2003 MT 198 (Mont. 2003). · cites it 11× “The District Court continued bail in the amount of $10,000 and scheduled an arraignment for December 19, 2001. At that time, Robison moved to dismiss the information, arguing that the eleven days which had elapsed between his initial appearance and the filing of the information…”
State v. David Zimmerman, 2014 MT 173 (Mont. 2014). · cites it 5× “The Justice Court scheduled a preliminary hearing under § 46-10-105, MCA, for August 3. Zimmerman retained counsel, who filed a notice of appearance on July 31 and requested that the preliminary hearing be continued due to a scheduling conflict.”
Montgomery v. State, 2015 MT 151 (Mont. 2015). · cites it 2× “T Haller, ¶ 8; § 46-10-105, MCA. “[A] defendant is not entitled to any specific procedure.”
State v. Brown, 1999 MT 339 (Mont. 1999). · cites it 2× “See §§ 46-10-105(2), 46-11-110, and 46-11-201(2), MCA.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). · cites it 17× “Vaska timely appeals, arguing the twenty-one-day delay between his initial appearance and the probable cause determination was not “within a reasonable time” as required by § 46-10-105, MCA, and abandoning his speedy trial claim.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). · cites it 17× “3 Department of Corrections for five years, none suspended; fined him $5,000 pursuant to § 61-8-731(3), MCA (2019)2 (without considering his ability to pay the fine although it determined he was unable to pay the public defender fee or the trial expense fee incurred by the…”
Clary v. State of Montana (Mont. 2020). · cites it 2× “Section 46-22-101(2), MCA. Clary's issue challenging a probable cause determination could have been raised in his initial appeal.”
Blackcrow v. Salmonsen (Mont. 2022). · cites it 2× “Blackcrow provides that on February 17, 2022, the Lake County District Court held a hearing on his counsel's motion to dismiss, alleging a violation of § 46-10-105, MCA. Blackcrow includes a copy of the court's order, dismissing his underlying criminal case because no…”
State v. Wing, 2008 MT 366 (Mont. 2008). · cites it 2× “WILLIAM LEAPHART, JIM RICE Concur: NOTES [1] The correct citation for this proposition is § 46-10-105, MCA.”
Mont. Code Ann. § 46-10-105(1): 3 cases
State v. Haller, 2013 MT 199 (Mont. 2013). “We review a district court’s determination of what constitutes a reasonable time under §46-10-105, MCA, for an abuse of discretion.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). “Vaska timely appeals, arguing the twenty-one-day delay between his initial appearance and the probable cause determination was not “within a reasonable time” as required by § 46-10-105, MCA, and abandoning his speedy trial claim.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). “3 Department of Corrections for five years, none suspended; fined him $5,000 pursuant to § 61-8-731(3), MCA (2019)2 (without considering his ability to pay the fine although it determined he was unable to pay the public defender fee or the trial expense fee incurred by the…”
Mont. Code Ann. § 46-10-105(2): 5 cases
State v. David Zimmerman, 2014 MT 173 (Mont. 2014). “The Justice Court scheduled a preliminary hearing under § 46-10-105, MCA, for August 3. Zimmerman retained counsel, who filed a notice of appearance on July 31 and requested that the preliminary hearing be continued due to a scheduling conflict.”
State v. Brown, 1999 MT 339 (Mont. 1999). “See §§ 46-10-105(2), 46-11-110, and 46-11-201(2), MCA.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). “Vaska timely appeals, arguing the twenty-one-day delay between his initial appearance and the probable cause determination was not “within a reasonable time” as required by § 46-10-105, MCA, and abandoning his speedy trial claim.”
State v. H. Vaska, 2025 MT 168 (Mont. 2025). “3 Department of Corrections for five years, none suspended; fined him $5,000 pursuant to § 61-8-731(3), MCA (2019)2 (without considering his ability to pay the fine although it determined he was unable to pay the public defender fee or the trial expense fee incurred by the…”
Clary v. State of Montana (Mont. 2020). “Section 46-22-101(2), MCA. Clary's issue challenging a probable cause determination could have been raised in his initial appeal.”
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