The last few years have brought about several changes to the laws surrounding pretrial release. Before many of these changes, there was a general rule that a defendant charged with a noncapital offense was entitled to have conditions of release set by any judicial official. A number of laws have created exceptions to this rule, including the Pretrial Integrity Act (S.L. 2023-75) and Iryna’s law (S.L. 2025-93).
One categorical exception to the general rule that a defendant is entitled to pretrial release is when a rebuttable presumption applies. Rebuttable presumptions against pretrial release provide that no condition of release will reasonably assure (i) the appearance of the person as required and (ii) the safety of the community. Generally, what this means is that conditions of release should be denied unless the presumption is overcome.
There are several statutes related to pretrial release that establish rebuttable presumptions. This post reviews those statutes, describes the limitations on judicial authority, and highlights intersections with other rules.
Certain drug trafficking offenses.
G.S. 15A-533(d) establishes a rebuttable presumption against release for certain drug trafficking offenses. The presumption applies if a judicial official finds all of the following:
- There is reasonable cause to believe that the person committed an offense involving trafficking in a controlled substance;
- The drug trafficking offense was committed while the person was on pretrial release for another offense; and
- The person has been previously convicted of a Class A through E felony or an offense involving trafficking in a controlled substance and not more than five years has elapsed since the date of conviction or the person’s release from prison for the offense, whichever is later.
If all of these findings are made at the initial appearance, then a magistrate may not authorize the defendant’s release from custody. Under G.S. 15A-533(g), only a district or superior court judge may find that the presumption is overcome and set conditions of release. There is no specific statutory language instructing judicial officials how the presumption may be overcome, but G.S. 15A-533(g) requires the judge to find “that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community” prior to releasing the defendant.
Certain gang offenses.
G.S. 15A-533(e) establishes a rebuttable presumption against release for certain gang-related offenses. The presumption applies if a judicial official finds all of the following:
- There is reasonable cause to believe that the person committed an offense for the benefit of, at the direction of, or in association with, any criminal gang, as defined in G.S. 14‑50.16A(1).
- The offense was committed while the person was on pretrial release for another offense.
- The person (i) has been previously convicted of an offense described in G.S. 14‑50.16 through G.S. 14‑50.20 or (ii) has been convicted of a criminal offense and received an enhanced sentence for that offense pursuant to G.S. 15A‑1340.16E, and not more than five years has elapsed since the date of conviction or the person’s release for the offense, whichever is later.
If all of these findings are made at the initial appearance, then a magistrate may not authorize the defendant’s release from custody. Under G.S. 15A-533(g), only a district or superior court judge may find that the presumption is overcome and set conditions of release. There is no specific statutory language instructing judicial officials how the presumption may be overcome, but G.S. 15A-533(g) requires the judge to find “that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community” prior to releasing the defendant.
Certain firearm offenses.
G.S. 15A-533(f) establishes a rebuttable presumption against release for certain firearm offenses. The presumption applies if a judicial official finds there is reasonable cause to believe that the person committed a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm, and at least one of the following:
- The offense was committed while the person was on pretrial release for another felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm.
- The person has previously been convicted of a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm and not more than five years have elapsed since the date of conviction or the person’s release for the offense, whichever is later.
If the relevant findings are made at the initial appearance, then a magistrate may not authorize the defendant’s release from custody. Under G.S. 15A-533(g), only a district or superior court judge may find that the presumption is overcome and set conditions of release. There is no specific statutory language instructing judicial officials how the presumption may be overcome, but G.S. 15A-533(g) requires the judge to find “that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community” prior to releasing the defendant.
Violent offenses under G.S. 15A-531(9).
G.S. 15A-534(b1) establishes a rebuttable presumption against release for a defendant charged with a violent offense as defined by G.S. 15A-531(9). Unlike the offenses mentioned in the sections above, the rebuttable presumption applies solely based on the charging of the offense—a judicial official does not need to make any additional findings. Thus, the default for a magistrate at the initial appearance is to deny conditions of release for a violent offense.
The provision governing violent offenses does not include language that limits the setting of release conditions to judges. In other words, it is reasonable to interpret the provision as allowing magistrates to set conditions if the presumption is overcome, though there is no specific statutory language instructing judicial officials how the presumption may be rebutted. The standard set forth in G.S. 15A-533(g) does not expressly apply to the rebuttable presumption for violent offenses. However, judicial officials might consider using the provision as a guidepost in finding a presumption overcome in those cases.
Pretrial Integrity Act high-level felonies.
The Pretrial Integrity Act, enacted under S.L. 2023-75, took effect on October 1, 2023. The law amended G.S. 15A-533(b) to expand the list of offenses for which only a judge may consider conditions of pretrial release. Previously, this provision applied only to first-degree murder cases. It now applies to several other felonies, including kidnapping, rape, sexual offenses, and robbery.
Effective December 1, 2025, G.S. 15A-533(b) establishes a rebuttable presumption against release for the offenses listed in that subsection. The list of offenses is encompassed by the “violent offense” category as described above, so the same rules apply. The only exception is that a magistrate is not able to set conditions of release for these offenses because they are subject to the preexisting limiting rule that only a judge may do so.
Intersection of violent offenses and other rules.
Regardless of whether the rebuttable presumption for a violent offense is overcome at the initial appearance, if any of the violent offenses are subject to other special rules that limit magistrates’ authority, then those special rules control. For example, as mentioned in the section above, offenses listed under G.S. 15A-533(b) are violent offenses subject to a rebuttable presumption, and those offenses remain subject to the rule that only judge may authorize the defendant’s release.
Some violent offenses may also be subject to existing rules that delay a magistrate’s authority to set conditions of release. A common example is stalking under G.S. 14-277.3A. Stalking is a violent offense and is therefore subject to a rebuttable presumption. If stalking is committed in the domestic violence context, then it would also be subject to the 48-hour rule under G.S. 15A-534.1, meaning that within the first 48 hours after arrest, only a judge may find that the presumption is overcome and set conditions of release. After the 48-hour window has expired, a magistrate is authorized to do so.
Additionally, it may be possible for more than one rebuttable presumption to apply. Consider possession of a firearm by a felon under G.S. 14-415.1, which is a violent offense and is therefore subject to the rebuttable presumption applicable to violent offenses. It is also possible for the offense to be subject to the rebuttable presumption for firearm offenses if the relevant factors are met. If both presumptions apply, then a magistrate’s authority will be limited by the most restrictive of the two, meaning that the magistrate cannot find the presumption overcome at the initial appearance, and only a judge may act pursuant to G.S. 15A-533(g).
