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While you may get out of a speeding ticket or even a simple marijuana possession charge with nothing more than a citation, more serious charges may result in your arrest. If you are arrested, you must be processed, and conditions of pretrial release must be addressed.

This October, the North Carolina Legislature passed the North Carolina Pretrial Integrity Act. In short, this act greatly decreases the amount of cases for which a magistrate can set bond, and increases the amount of cases for which an accused person could find themselves in jail for up to 48 hours.

Reduction of a Magistrate’s Power to Set Bond

Prior to the change in law, a magistrate could generally set the bond for serious offenses other than capital cases (first degree murder). The new act drastically reduces a magistrate’s ability to set conditions of pretrial release on serious charges. As it stands now, A judge shall determine in the judge’s discretion whether a defendant charged with any of the following crimes may be released before trial:

  •  G.S. 14‑17 (First or second degree murder) or an attempt to commit first or second degree murder.
  • G.S. 14‑39 (First or second degree kidnapping).
  •  G.S. 14‑27.21 (First degree forcible rape).
  • G.S. 14‑27.22 (Second degree forcible rape).
  • G.S. 14‑27.23 (Statutory rape of a child by an adult).
  • G.S. 14‑27.24 (First degree statutory rape).
  • G.S. 14‑27.25 (Statutory rape of person who is 15 years of age or younger).
  • G.S. 14‑27.26 (First degree forcible sexual offense).
  • G.S. 14‑27.27 (Second degree forcible sexual offense).
  • G.S. 14‑27.28 (Statutory sexual offense with a child by an adult).
  • G.S. 14‑27.29 (First degree statutory sexual offense).
  • G.S. 14‑27.30 (Statutory sexual offense with a person who is 15 years of age or younger).
  • G.S. 14‑43.11 (Human trafficking).
  • G.S. 14‑32(a) (Assault with a deadly weapon with intent to kill inflicting serious injury).
  • G.S. 14‑34.1 (Discharging certain barreled weapons or a firearm into occupied property).
  • G.S. 14‑51 (First degree burglary).
  • G.S. 14‑58 (First degree arson).
  • G.S. 14‑87 (Robbery with firearms or other dangerous weapons).

If you are now charged with any of the aforementioned charges, your bond cannot be set by a magistrate, and you must await your time in court for your case to be addressed by a judge.

Expansion of the 48 Hour Hold

Unlike the more serious charges outlines above, conditions of pretrial release for lower-level offenses are generally set by a magistrate. For a long time in North Carolina, there were only a few specific circumstances where the ability of a magistrate to set the terms of pretrial release was restricted. For example, in domestic violence cases the conditions of pretrial release must be set by a district court judge. However, if no judge is available, a magistrate may set conditions of pretrial release after a period of 48 hours.

This new act greatly expands the circumstances for which an accused person may find themselves in a 48-hour hold as follows:

  • If a defendant is arrested for a new offense allegedly committed while the defendant was on pretrial release for another pending proceeding, the judicial official who determines the conditions of pretrial release for the new offense shall be a judge…Notwithstanding the provisions of this subsection, a magistrate may set the conditions of pretrial release at any time if the new offense is a violation of Chapter 20 of the General Statutes, other than a violation of G.S. 20‑138.1, 20‑138.2, 20‑138.2A, 20‑138.2B, 20‑138.5, or 20‑141.4. A defendant may be retained in custody pursuant to this subsection not more than 48 hours from the time of arrest without a judge making a determination of conditions of pretrial release. If a judge has not acted pursuant to this subsection within 48 hours from the time of arrest of the defendant, the magistrate shall set conditions of pretrial release in accordance with G.S. 15A‑534.

Put another way, if you have a pending charge for which you have been placed on pretrial release, except for traffic tickets, you must now also have your bond set by a judge.

That means that if you get a DWI on a Friday night, and you are already out on either a written promise to appear or a bond for some other charge, you are going to be in jail until Sunday night at a minimum.

Issues with the Law

While certainly well intentioned, this law presents great issues for those it affects. First, by expanding the amount of time one must spend in pretrial detention without a hearing, the State may run into an issue under United States v. Salerno, which requires that defendants held in pretrial detention must be afforded specific constitutional and procedural protections. Second, in the case of Driving While Impaired charges, the new statutory scheme may run afoul of State v. Knoll, which addresses a DWI defendant’s right to collect evidence in his or her own defense. A violation of a defendant’s constitutional rights under either Salerno or Knoll may be the basis of a dismissal of a defendant’s charges.

Finally, this Act poses a general problem for judicial efficiency. District court judges now must spend more time setting bonds for detained individuals where the magistrates previously could have. This additional time spent setting bonds will inevitably decrease the time available for judges to address cases scheduled for hearings, resulting in decreased overall productivity in court.

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Robert C. DiDomenico III

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