After law enforcement arrests someone, they must take that person before a judicial official “without unnecessary delay” pursuant to G.S. 15A-501(2). This is for the judicial official—often a magistrate—to conduct an initial appearance. During an initial appearance, magistrates review the validity of the arrest, issue charging documents, inform the arrested person of their rights, and set pretrial release conditions (if the person is eligible). Considering these essential tasks, when may law enforcement or magistrates delay an initial appearance? And how would a delay affect a magistrate’s decision to impose an impaired driver hold under G.S. 15A-534.2, or vice versa? Read on to find out.
Delaying the initial appearance. There are a few circumstances where law enforcement or magistrates may delay conducting an initial appearance. Sometimes, it is clear immediately upon arrest that a person’s initial appearance will need to be delayed, and sometimes, a magistrate will only realize an initial appearance will need to be delayed after it has begun. In these circumstances, a magistrate may pause the initial appearance and impose a delay until the initial appearance can be resumed. Three circumstances where an initial appearance may be delayed or paused include: (1) when a person requires hospital treatment; (2) when a person refuses to be identified; and (3) when a person is unruly, unconscious, or intoxicated to the extent that it would impede the proceedings or the person would not understand their procedural rights.
Hospital trips. There are times that a person will require hospital care after they have been arrested. Because law enforcement and the arrested person have not appeared before the magistrate yet, this delay is often based on a law enforcement officer or first responder’s assessment. That said, in some circumstances, it will be the sheriff’s department or magistrate that may first determine that a person needs medical assistance. Even after a person has been brought to a detention facility or before a magistrate, they may be taken to the hospital instead and the initial appearance may be paused and resumed later if needed. While the initial appearance may be delayed for hospital care, G.S. 15A-511 still requires an initial appearance after a person is arrested. Practically speaking, this means law enforcement may not decide to terminate the arrest and provide the person with a citation—they must still comply with G.S. 15A-501 and take the arrested person before a judicial official after the necessary health care has concluded.
Refusing to be identified. Sometimes, individuals will refuse to identify themselves after they have been arrested. G.S. 15A-501(4) permits law enforcement to take an arrested person to another location before the initial appearance for the purpose of having that person identified. Without knowing a person’s identity, it is impossible for law enforcement to check for other outstanding process and impossible for magistrates to fully determine whether the person is eligible for pretrial release conditions (and if they are eligible, what conditions to impose). This is because a person’s identity aids the magistrate in providing what a person’s prior criminal history may be, what connections that person has to their community, and whether they have previously failed to appear for court. One response in this circumstance may be to delay the initial appearance under G.S. 15A-501(4) so that law enforcement can investigate the defendant’s identity. Another option available to magistrates is to proceed with conducting the initial appearance and take the person’s refusal to identify themselves into account when setting pretrial release conditions-for example, including a condition that the defendant adequately identify themselves or that an identification of the defendant be determined before permitting release.
Unruly, unconscious, or intoxicated. In some instances, a magistrate may delay the initial appearance when the person arrested is so unruly that they disrupt and impede the proceeding, when the person becomes unconscious, or when the person is so intoxicated that they are otherwise unable to understand their procedural rights. This delay, authorized by G.S. 15A-511(a)(3), also permits delaying an initial appearance so an interpreter can be provided to interpret the proceedings for the defendant. An important note about this delay is that the discretion to begin the initial appearance should remain with the magistrate and not be transferred to a deputy or jailer. This is best accomplished by having frequent check-ins with the defendant and by setting an outer limit to the delay. As soon as the person can understand the proceedings and their procedural rights, the magistrate should conduct their initial appearance. Delaying a person’s initial appearance due to their intoxication operates the same without regard to what they are being charged with. This is in contrast with the detention of impaired drivers under G.S. 15A-534.2.
Detention of impaired drivers. Imposing an impaired driver hold pursuant to G.S. 15A-534.2 shares a few similarities with delaying an initial appearance. Namely, it is an imposition largely caused by a person’s intoxication, and it results in a delay where one otherwise would not exist. But that is where the similarities end.
The first notable distinction about impaired driver holds is that they only apply when a person is charged with “an offense involving impaired driving” as defined in G.S. 20-4.01(24a). Secondly, the triggering condition for an impaired driver hold is not whether a person is incapable of understanding the proceedings, but rather whether a person’s impairment presents a danger to themselves, others, or property if they are released. This brings us to the third distinction—the delay. Impaired driver holds are imposed after initial appearances and after the regular conditions of pretrial release have been set. They are holds that keep a person in custody until their impairment no longer presents a danger, until a qualifying sober adult arrives to take responsibility for them, or until 24 hours have passed (whichever occurs first). As a result, the effectiveness of the person’s release conditions is delayed until one of these three conditions is met. This means that even after the impaired driver hold has been lifted, a defendant is not automatically released from custody—they must still satisfy their conditions of release.
A final note: magistrates must make specific, detailed findings about the defendant’s behavior that support their conclusion that the hold is necessary. Otherwise, the imposition of an impaired driver hold may violate the defendant’s statutory and constitutional rights and result in dismissal of the impaired driving charge.
Delaying and detaining. When a person is being charged with an offense involving impaired driving, delaying the initial appearance and imposing an impaired driver hold are both available to the presiding magistrate. Depending on the circumstances, a magistrate may also impose neither one, or one or the other. A person’s intoxication may be an impediment to an initial appearance, requiring a delay, and even after they can understand the proceeding, if that person remains a danger to themselves, others, or property, an impaired driver hold may still be necessary. A person may be so intoxicated upon arrest that the initial appearance must be delayed, but by the time the delay is resolved and the initial appearance is complete, they do not present a danger to themselves, others, or property and an impaired driver hold is not necessary. Further, a person may be capable of understanding and proceeding with an initial appearance but nonetheless be intoxicated to the extent that they still pose a danger to themselves, others, or property. In that circumstance, a magistrate would be authorized to impose an impaired driver hold. Finally, it is also possible that a person charged with an offense involving impaired driving can understand and proceed with the initial appearance without delay, and not require an impaired driver hold post initial appearance based on their level of intoxication and behavior.