Pretrial release is generally set by magistrates at a defendant’s initial appearance. As a special approach to setting conditions of pretrial release, the “48-hour rule,” as it is known in domestic violence cases, shifts that responsibility to judges. The rule comes from G.S. 15A-534.1, which provides that a judge rather than a magistrate must set a defendant’s pretrial release conditions during the first 48 hours after arrest for certain offenses. The 48-hour rule generates a lot of questions. Below, I have answered some fundamental questions that have arisen with this rule.
What offenses under G.S. 15A-534.1 are subject to the 48-hour rule? G.S. 15A-534.1 lists the offenses subject to the 48-hour rule. Some offenses are subject to the rule based on the offense alone. Those are domestic criminal trespass and violation of a domestic violence protective order. A greater number of offenses are subject to the rule only if the defendant is charged with an offense listed in the statute and the defendant and victim are or have been in a relationship described in the statute. The covered offenses in this category are assault, stalking, communicating a threat, and the felonies proscribed by Articles 7B, 8, 10, or 15 of Chapter 14 of the General Statutes, such as rape, kidnapping, and arson. The requirement of a covered relationship is met if the offense is against “a spouse or former spouse, a person with whom the defendant lives or has lived as if married, or a person with whom the defendant is or has been in a dating relationship.”
This list of covered offenses is exclusive. I often get questions about other offenses that occur in domestic situations, like interfering with emergency communications in violation of G.S. 14-286.2. Some conduct could be so egregious that it seems as though it should be subject to the 48-hour rule. However, if the offense is not specifically listed in G.S. 15A-534.1, it is not within the scope of the rule.
Is the “48-hour rule” different than a “48-hour hold”? The 48-hour rule is sometimes erroneously referred to as a “48-hour hold.” This misnomer suggests that the defendant should always be held without conditions being set, by a judge or magistrate, for 48 hours. This interpretation is incorrect. My colleague Jeff Welty, summarized the distinction well in a blog several years ago:
[T]he rule doesn’t authorize a hold for any reason other than the unavailability of a judge. If a judge is available — basically, if court is in session — then the defendant should not be held. He or she should be taken promptly before the judge. If a defendant is held for 48 hours even though a judge has been available in the interim, dismissal of the charges is warranted. [State v. Thompson, 349 N.C. 483 (1998)]. See also State v. Clegg, 142 N.C. App. 35. But cf. State v. Jenkins, 137 N.C. App. 367 (2000) (although there was a session of court at 9:30 a.m. and the defendant was not taken before a judge until 1:30 p.m., the defendant’s bond hearing took place within a “reasonably feasible” period of time and dismissal was not required).
It is often the case that no judge may be available for a defendant who has the misfortune of being arrested on a Friday evening. In that instance, the defendant will be held in jail until a magistrate sets conditions 48 hours later on Sunday evening. This result may have caused some people mistakenly to treat the 48-hour rule as imposing a 48-hour hold in all cases.
When can a magistrate act? Magistrates frequently remain tasked with setting pretrial release conditions for defendants subject to the 48-hour rule. However, the magistrate’s authority does not take effect until the defendant has been in custody for more than 48 hours without conditions having been set by a judge. The period runs from the time of arrest (not the later time of when the defendant initially appears before the magistrate). G.S. 15A-534.1(b).
In some situations, it is evident that a judge will not be available for 48 hours, such as when a defendant is arrested on Friday evening. I have been asked whether it is permissible in that instance for a magistrate to set pretrial release conditions to take effect immediately. Even then, the statute does not allow a magistrate to do so.
A different question is whether a magistrate may set conditions of confinement, rather than conditions of release, to take effect immediately. This approach finds some support in State v. Mitchell, 259 N.C. App. 866 (2018). In Mitchell, the court determined that a condition of no contact with the victim, imposed by the magistrate at the start of the 48-hour period, was immediately binding on the defendant even though the defendant remained in jail. (For more on the court’s ruling and analysis, see Shea Denning’s blog about Mitchell.).
As always, if you have additional thoughts or questions, please feel free to email me at email@example.com.