Pretrial Release – Part 4: Refusal to Provide Identification & Noncitizens

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In the last in this series of posts on pretrial release I’ll address two issues that continue to create problems for judicial officials: defendants who refuse to identify themselves and setting conditions for noncitizens.

Defendants Who Refuse to Identify Themselves

Sometimes defendants refuse to identify themselves. Without knowing a defendant’s identity, it is almost impossible for a judicial official to determine what conditions of pretrial release should be imposed. The judicial official will not be able to determine, among other things, whether the defendant has a record, has previously failed to appear, or what connections the defendant has with the community that are relevant to flight risk.

If the relevant local policy does not address the situation, a judicial official probably may delay the initial appearance while a law enforcement officer completes an investigation into the defendant’s identity. Such an investigation may not be feasible in all cases, particularly when the crime is not a serious one. Note, however, that if a person (1) is charged with an offense involving impaired driving, as defined in G.S. 20-4.01(24a), or driving while license revoked when the revocation is for an impaired driving revocation, as defined in G.S. 20-28.2, and (2) cannot be identified by a valid form of identification, then the arresting officer must have the person fingerprinted and photographed. G.S. 15A-502(a2). This requirement does not necessarily result in an identification of the person, but it does impose additional duties on law enforcement. If the judicial official delays the initial appearance to allow the officer to investigate and the officer’s investigation is unsuccessful or cannot be done quickly, the judicial official should consider the other option set out below; a judicial official should not allow an indefinite delay of the initial appearance.

A second option for dealing with a defendant who refuses to identify himself or herself is to hold the initial appearance, set conditions in light of the potential flight risk associated with a person who will not identify himself or herself, and include as a condition of pretrial release that either the defendant adequately identify himself or herself or that there is an adequate identification of the defendant.

Regardless of which procedure is used, it is probably not permissible and it is not advisable to require a defendant to produce a United States government-issued picture identification. Also, any reasonable form of identification may be satisfactory even if the defendant does not have any written form of identification—for example, when a responsible member of the community vouches for the defendant’s identity.

Noncitizens and Pretrial Release

A judicial official has no authority to hold an arrestee simply because he or she is not a United States citizen. G.S. 162-62 (as amended by S.L. 2010-97) provides that whenever a person charged with a felony or an impaired driving offense is confined to a jail or a local confinement facility, the person in charge of the facility must attempt to determine if the prisoner is a legal resident of the United States by questioning the person and/or examining documents. If the prisoner’s status cannot be determined, the person in charge must, if possible, make an inquiry to the Immigration and Customs Enforcement of the United States Department of Homeland Security (ICE). However, G.S. 162-62 also provides that it cannot be construed to deny bond to a prisoner or prevent the prisoner from being released from confinement when the prisoner is otherwise eligible for release. Of course, citizenship status may be relevant in determining conditions of pretrial release, such as when the arrestee has no contacts in the community and was planning on returning to his or her home country shortly, thus creating a flight risk.

Another immigration issue sometimes arises when the arresting officers informs a judicial official that there is an ICE detainer or that ICE is “interested” in the defendant. One of ICE’s responsibilities is detaining and removing noncitizens who are not legally present in the country. An ICE detainer refers to a document issued by ICE, frequently to a local jail, asking the jailer to hold a person for up to forty-eight hours so that ICE can take custody of that person. For example, suppose a defendant is in jail on a $5,000 secured bond. Normally, when the defendant is able to make that bond, he or she must be released. However, if an ICE detainer is in place, the jailer will hold the defendant for up to forty-eight hours after the defendant makes bond so that ICE can take custody. When an officer brings a defendant to a judicial official and an ICE detainer is in place, the judicial official should follow the normal procedure for conducting the initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the judicial official is not authorized to hold the defendant. The detainer is in place, and if the defendant meets his or her conditions of pretrial release, the jail will hold the defendant per the detainer. However, the fact that a detainer is in place may affect the judicial official’s decision about appropriate conditions. For example, if the defendant is facing deportation, there may be an elevated flight risk.

Likewise, when an officer brings a defendant to a judicial official and informs the official that ICE is “interested” or is “investigating whether a detainer should issue,” the official should follow the normal procedure for conducting an initial appearance and setting conditions of pretrial release. There is no special hold to implement, and the official is not authorized to hold the defendant for this purpose. However, in this situation the official may learn of facts that will be relevant to the determination regarding the appropriate conditions of pretrial release.

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