Under G.S. 15A-534.1, when a defendant is charged with assault, stalking, communicating threats, or certain other crimes against “a spouse or former spouse or a person with whom the defendant lives or has lived as if married,” a judge, rather than a magistrate, must set the defendant’s bond. The same rule applies when a defendant is charged with domestic criminal trespass or with violating a domestic violence protective order. If, after 48 hours, a judge hasn’t yet set the defendant’s bond, a magistrate acquires the power to set the bond. For example, if a defendant is arrested on Friday night, normally no judge will be available until Monday. Therefore, on Sunday night, after 48 hours have elapsed, a magistrate should set a bond for the defendant.
The constitutionality of the statute was generally upheld in State v. Thompson, 349 N.C. 483 (1998), which concluded that the statute was regulatory, rather than punitive, and “serves the General Assembly’s legitimate interest in ensuring that a judge, rather than a magistrate, consider[s] the terms of a domestic-violence offender’s pretrial release.” Note that the purpose of the 48 hour rule is not to allow the defendant to cool down. Id. If the defendant needs to cool down, the judge may detain the defendant for a “reasonable period of time,” with proper findings, to allow for that. G.S. 15A-543.1(a)(1). But that period of time transpires after the bond hearing, not before.
There are a few recurrent issues that arise with respect to the 48 hour rule.
First, the rule is sometimes called a “48 hour hold.” I don’t like that description, because it suggests that the defendant should always be held without bond for 48 hours. In fact, the 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. Id. 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).
Second, the extent to which the rule applies to same-sex couples isn’t clear. It certainly does when one member of a same-sex couple is charged with violating a domestic violence protective order obtained by the other. (Such orders can be issued to “current or former household members,” which obviously encompasses some same-sex couples. G.S. 50B-1(b)(5).) But what about when the charge is assault, or one of the other crimes for which the rule applies only to “a spouse or former spouse or a person with whom the defendant lives or has lived as if married”? Can a same-sex couple in North Carolina live together “as if married,” given that state law precludes same-sex marriage? If a same-sex couple marries in another state, then moves to North Carolina, are the members of the couple “spouses” for this purpose? There’s no case on point, and the criminal law faculty here at the School of Government disagree about the right answer and about the best practice given the uncertainty in this area. My own view is that the rule does apply to same-sex couples, based in part on the contrast between G.S. 50B-1(b)(2) (which specifies “persons of opposite sex who live together or have lived together,” when defining the relationships that can support a domestic violence protective order) and G.S. 15A-534.1(a) (which says nothing about “opposite sex” when defining the relationships that trigger the 48 hour rule). But let me repeat that others here disagree, and more importantly, that the courts haven’t spoken. I’d be very interested to know what the practice is out there, and whether any counties have a written or unwritten policy about this issue.
Third, I was recently asked whether the rule applies to opposite-sex relationships in which a legal marriage is impossible, such as between first cousins, [update: first cousins can marry in North Carolina but not double first cousins, G.S. 51-3] or between people who are already married to others. I think so. The purpose of the law is to ensure that domestic violence cases are handled carefully, by legally-trained judicial officials, presumably because of the risks of repeat violence inherent in such cases. That purpose is served by interpreting “as if married” to mean “romantic, not just roommates,” rather than as requiring a careful inquiry into the defendant’s eligibility to marry the alleged victim.