Pretrial Release — Part 3: Limits on When and What Conditions May Be Imposed

As a general rule, and subject to local bond policy, the law gives judicial officials a great deal of discretion to determine the appropriate conditions of pretrial release. In some situations, however, the law limits that discretion. In my first post in this series I discussed situations where a defendant is not entitled to conditions. This post discusses situations where a defendant is entitled to conditions but the judicial official’s discretion as to when and what conditions may be imposed is limited in some way.

• Probationers. As discussed in my first post, special pretrial release provisions apply when a probationer is arrested for violating probation and either has a pending felony charge or has been convicted of an offense that requires registration under the sex offender registration statutes or that would have required registration but for the effective date of the registration program. In certain circumstances, such a defendant is not entitled to release; in other circumstances such a defendant must be held for a period pending receipt of relevant information. Also, G.S. 15A-534(d2) provides that when conditions of pretrial release are being determined for a defendant who is charged with a felony while on probation for an earlier offense, the judicial official must determine whether the defendant poses a danger to the public before imposing conditions of pretrial release. If the defendant does not pose such a danger, he or she is entitled to release as in all cases. Id. If the defendant poses such a danger, the judicial official must impose a secured bond or a secured bond with electronic house arrest. Id.

• Forty-Eight-Hour Rule Domestic Violence Cases. In certain domestic violence cases, only a judge can determine the conditions of pretrial release in the first forty-eight hours after arrest. G.S. 15A-534.1(a), (b). If a judge does not act within forty-eight hours, conditions must be set by a magistrate. G.S. 15A-534.1(b). This rule is known as the “Forty-Eight-Hour Rule.” A chart listing the offenses covered by the rule is available here. When conditions are set by a judge within the forty-eight hour period or by a magistrate after expiration of that period, the magistrate or judge must obtain and consider the defendant’s criminal history when setting conditions. Upon a determination that the defendant’s immediate release will pose a danger of injury to the alleged victim or another person or is likely to result in intimidation of the alleged victim and that the execution of an appearance bond will not reasonably assure that such injury or intimidation will not occur, a judicial official may retain the defendant in custody for a reasonable period of time while determining conditions of pretrial release. G.S. 15A-534.1(a)(1). Finally, G.S. 15A-534.1(a)(2) sets out special restrictions that may be imposed on defendants charged with the specified domestic violence crimes.

• Cases Involving Child Victims. G.S. 15A-534.4 sets out conditions that must be imposed on defendants charged with certain sex offenses or crimes of violence against child victims.
• Prior Failures to Appear and Bond Doubling. Special provisions apply when a defendant has been surrendered by a surety after a failure to appear (FTA) or arrested on an order for arrest (OFA) after a FTA. G.S. 15A-534(d1) provides if a defendant has failed to appear one or more times on the charges, the judicial official must, at a minimum, impose the conditions recommended in the OFA. If the OFA does not recommend conditions, the judicial official must set a secured bond of at least double the amount of the most recent bond (regardless of whether it was secured or unsecured). G.S. 15A-534(d1). If no bond was in place, the judicial official must set a secured bond of at least $500.00. Id. The judicial official also must impose restrictions on the defendant’s travel, associations, conduct, or place of abode to ensure that the defendant appears as required. Id.
• Communicable Disease Holds. G.S. 15A-534.3 provides that if the judicial official finds probable cause to believe that a person was exposed to the defendant in a manner that poses a significant risk, through a nonsexual contact, of transmission of the AIDS virus or Hepatitis B, the judicial official must order the defendant detained for a reasonable period, not to exceed twenty-four hours, for investigation by public health officials and testing, if required by those officials.
• Impaired Driving Holds. G.S. 15A-534.2 contains a special detention provision that applies during the initial appearance in impaired driving cases. The procedures for implementing such holds are complicated and I won’t summarize them here. If you’re interested in a detailed discussion, see my publication posted here.
• Infractions. A person charged with an infraction may be required to post a bond to secure his or her appearance in court. G.S. 15A-1113(c). However, three exceptions virtually swallow this rule. First, a North Carolina resident charged with an infraction cannot be required to post bond. Id. Second, a person charged with an infraction cannot be required to post a bond if the person is licensed to drive by a state that is a member of the motor vehicle nonresident violator compact, the charged infraction is subject to the compact, and the person executes a personal recognizance required by the compact. Id. Third, certain individuals charged with infractions subject to the Interstate Wildlife Violator Compact cannot be required to post a bond. G.S. 113-300.6. If none of these exceptions apply, a person charged with an infraction can be required to post a bond. G.S. 15A-1113(c). However, if a judicial official finds that the person is unable to post a secured bond, the judicial official must allow the person to be released by executing an unsecured bond. Id.

• Fugitives. A fugitive charged in another state with an offense punishable by death or life imprisonment has no right to pretrial release. Other such fugitives are entitled to “bail by bond, with sufficient sureties.” G.S. 15A-736. Thus, it appears that no other form of release is authorized for these defendants.