The Pretrial Integrity Act has been in effect for one month now and has generated several questions about the implications of the new provisions. Some of the most frequently asked questions stem from probation violations, particularly how arrests for probation violations are treated under the new law. This post briefly addresses the two most common questions in this context.
Probation violation as “new offense.”
Under new G.S. 15A-533(h), if a defendant is arrested for a new offense allegedly committed while the defendant was on pretrial release for another pending proceeding, the judge must be the official to set pretrial release conditions within the first 48 hours. One recurring question is whether a probation violation constitutes a “new offense” within the meaning of G.S. 15A-533(h).
The short answer is that it probably does not because a probation violation, in and of itself, is not a new offense. The one type of probation violation that perhaps raises a closer call is one based on the “commit no criminal offense” condition. Even if the probation violation is based on the commission of a new crime, it is an open question as to whether the probation violation itself would trigger G.S. 15A-533(h), or whether the offense that the probation violation is based on has to be charged separately to trigger the statute. It seems to be the more reasonable interpretation that unless the latter has occurred, a probation violation will not subject a case to G.S. 15A-533(h). In other words, if a defendant who is out on pretrial release for a pending proceeding is arrested on an order for arrest for a probation violation, the magistrate will likely have the immediate authority to set release conditions at the initial appearance. If, however, charges are filed and the defendant is arrested on a warrant that was issued for the underlying offense, then G.S. 15A-533(h) applies, and the conditions of release for the new offense must be set by a judge within the first 48 hours after arrest.
Pre-hearing release for probation violation as “pretrial release.”
Another common question is whether G.S. 15A-533(h) applies to a person with conditions of release for a probation violation who gets a new charge. The short answer is that it does apply because “pretrial release” probably includes pre-hearing conditions of release for probation violation proceedings.
G.S. 15A-1345(b) provides that when a probationer is arrested for a probation violation, conditions of release are “set in the same manner as provided in G.S. 15A-534”—the statute detailing the procedure for determining conditions of pretrial release. Similarly, if conditions of release are set for a probationer subject to the “danger to the public” review under 15A-1345(b1), the conditions are “imposed as otherwise provided in Article 26.” Given the language in these probation-related statues, it seems that a defendant with pre-hearing conditions of release for a probation violation proceeding is on “pretrial release” for the purposes of G.S. 15A-533(h). Thus, if a defendant is out on bond for a probation violation and is arrested for another new offense allegedly committed during this time, G.S. 15A-533(h) applies, and the conditions of release for the new offense must be set by a judge within the first 48 hours after arrest. Note that this analysis applies regardless of underlying condition of probation.