Probation Tolling Repealed

I’ve mentioned the big legislative changes pending in HB 642 (the Justice Reinvestment Act, which was discussed in House Appropriations this morning), but I haven’t written about an important criminal bill that’s already been signed into law. It’s Session Law 2011-62 (HB 270), Amend Conditions of Probation, which the Governor signed on May 3.

The law makes multiple changes to the Probation article of Chapter 15A. It amends G.S. 15A-1343(b)(2) (regular condition #5 on the judgment form), which required probationers to “remain within the jurisdiction of the court.” There was always some confusion about what that condition meant by jurisdiction, though case law and Division of Community Corrections (DCC) policy interpreted it to mean the entire State of North Carolina (as I discussed in this post). The new law removes any confusion by striking “jurisdiction of the court” and replacing it with a requirement that probationers remain “accessible to the probation officer by making the defendant’s whereabouts known to the officer,” and that they “not leave the county of residence or the State of North Carolina” unless granted permission by the court or the probation officer. So now all probationers—not just those subject to intermediate punishment and therefore bound by the special intermediate condition set out in G.S. 15A-1343(b4)—are required to remain within their county of residence.

The new law adds new regular condition G.S. 15A-1343(b)(16), requiring all supervised probationers to “[s]upply a breath, urine, or blood specimen for analysis of the possible presence of prohibited drugs or alcohol when instructed by the defendant’s probation officer for purposes directly related to the probation supervision.” You might recognize that as old (as in, pre-2009) special condition #15, which was never codified in the General Statutes but was ordered so frequently that it earned a spot on the judgment form. When warrantless searches were added as default condition special condition #15 dropped off the form, but there was some question (discussed in this post) as to whether random, suspicionless drug screens were covered under the language of the warrantless search condition alone. Under the new law there’s no doubt that a probationer must provide a specimen when instructed.

The new law also adds some special conditions directed at street gangs as they are defined in G.S. 14-50.16(b) and strikes the regular condition in G.S. 15A-1343(b)(11) requiring that all supervised probationers tour a facility maintained by the Division of Prisons. (The bill did not, however, amend G.S. 15-205, which obligates probationer officers to, within the first 30 days of a supervisee’s probation, “take such person to a prison unit maintained by the Department of Correction for a tour thereof so that he may better appreciate the consequences of probation revocation.”)

The biggest change of all, though, is so short and sweet that you might just miss it if you read the bill too quickly. Down at the bottom of Page 3 it says “G.S. 15A-1344(g) is repealed.” What’s G.S. 15A-1344(g)? It’s the probation tolling law—the law that said pending charges for anything other than a Class 3 misdemeanor “toll” a period of probation until the charges are resolved.

Tolling has been a big deal for DCC over the past few years. The law had been on the books since the 1970s, but DCC’s tolling policy changed in late 2008 in response to the way the court of appeals interpreted the law in a couple of cases (as discussed here). It changed again in 2009 when the legislature moved the relevant statutory provision from G.S. 15A-1344(d) to G.S. 15A-1344(g), and also provided that if a probationer’s case was tolled for a new charge that resulted in an acquittal or dismissal, he or she would receive credit for the time spent under supervision during the tolled period. There are over 23,000 probationers in tolled status right now. In other words, 1 out of every 5 probationers has pending charges and is on a treadmill with respect to the length of his or her period of probation.

Tolling sometimes made it difficult for Probation and probationers alike to figure out when a period of supervision would expire. But though it could be a pain administratively, tolling could sometimes be the State’s best friend when questions arose about whether the court still had jurisdiction over a case. For instance, many absconders who have been out of touch for years turned out still to be on probation because a pending charge had tolled their case.

I have heard it said that the new law’s repeal of tolling just gets us back to where we were before DCC changed its operational policies in 2008. I don’t think that’s quite the case. Without tolling, it will be especially important for probation officers to file violation reports before a period of probation expires so the court can have authority over the case under G.S. 15A-1344(f). That’s the provision—sometimes also referred to as tolling, but which I generally refer to as holding open—that gives the court jurisdiction to conduct a hearing after expiration. An important distinction between holding open and tolling, though, is that the former simply gives the court power to act, whereas the latter actually kept the offender under supervision by a probation officer. When a case is held open by the filing of a violation report, supervision must cease when the expiration date arrives.

Tolling was also particularly handy when a person’s only alleged violation was a new criminal offense. In some parts of the state there is a flat-out rule against considering a pending charge as a probation violation before the defendant has had his or her day in court on the charge itself. (I wrote about that issue in this post.) With the tolling law in place, the State could always wait for the new criminal case to run its course without any fear of losing power over the probation matter; as long as the charge remained the probation clock was stopped. Without tolling, probation officers will probably want to go ahead and file a probation violation report so the case can at least be held open under G.S. 15A-1344(f). Otherwise, if the criminal case doesn’t get resolved before the period of probation expires, the court will have lost jurisdiction to do anything at all about the probation—even if the criminal charge results in a conviction.

The new law is effective December 1, 2011, and applies to “persons placed on probation on or after that date.” I’m told that might be changed through a technical correction so I won’t say much else about it for now, but it does appear that the tolling law will still apply to people already under supervision.