Recent Changes to the Pretrial Release Statutes

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In the 2015 legislative session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases to include dating couples.Bond doubling. In 2013, the General Assembly enacted G.S. 15A-534(d3), which provided: “When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars.” S.L. 2013-298. As discussed in detail in this prior post, the provision proved difficult for magistrates to apply (because it is not easy to determine what a defendant’s most recent bond is when the clerk’s office is closed) and created problems when a defendant was released under a high bond for a serious offense, then was rearrested for a minor offense (with the statute mandating double the original high bond for the minor charge).

This session, the legislature effectively reversed course. S.L. 2015-247 amended the provision so that a judicial official “may,” rather than “shall,” double the defendant’s bond. (A judicial official always had the option of imposing a double bond, or any other bond, so this amendment effectively restores the pre-2013 law.) The new law became effective October 1.

Expansion of 48-hour rule. As most readers know, G.S. 15A-534.1 is the statute that governs pretrial release in domestic violence cases. It provides that, for certain covered offenses, within the first 48 hours following arrest, only a judge may set conditions of release. I discussed the rule in some detail here.

The rule has applied to assaults and certain other offenses where the victim is the defendant’s spouse, former spouse, or a person with whom the defendant lives or has lived “as if married.” Effective December 1, S.L. 2015-62 expands the law to apply to covered offenses involving victims “with whom the defendant is or has been in a dating relationship as defined in G.S. 50B‑1(b)(6).”

Per the statue, a dating relationship “is one wherein the parties are romantically involved over time and on a continuous basis during the course of the relationship. A casual acquaintance or ordinary fraternization between persons in a business or social context is not a dating relationship.” There’s quite a bit of gray area there, for “friends with benefits” and other arrangements. One thing that I think is clear is that a dating relationship is not limited to heterosexual couples. Although G.S. 50B-1 defines “dating relationship” in the context of “persons of the opposite sex,” the definition itself does not refer to the sexes of the people in the relationship. In any event, including opposite-sex couples under the 48-hour rule but excluding same-sex couples could raise significant constitutional questions.

As always, questions, comments, and concerns are welcome.

3 comments on “Recent Changes to the Pretrial Release Statutes

  1. […] Does it apply to same-sex relationships? Yes. The victim must be the defendant’s “spouse, former spouse, a person with whom the defendant lives or has lived as if married, a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B‑1(b)(6), or a person with whom the defendant shares a child in common.” This is similar to the list of relationships that trigger the 48-hour rule regarding pretrial release in domestic violence cases, see G.S. 15A-534.1, with the addition of the “child in common” provision. Same-sex marriage is the law of the land so the references to spouses and people who live together “as if married” clearly apply equally to same-sex and opposite-sex couples. The reference to “a person with whom the defendant is or has been in a dating relationship as defined in G.S. 50B‑1(b)(6)” is trickier because that provision states that a “personal relationship” includes “persons of the opposite sex who are in a dating relationship or have been in a dating relationship,” which is then further defined in the statute as an ongoing romantic relationship. As far as Britny’s Law goes, though, the reference to “persons of the opposite sex” is a red herring, because Britny’s Law only requires a “dating relationship,” not a “personal relationship,” and so is not specific to opposite-sex couples. I discussed this issue in the pretrial release context here. […]

  2. […] to cover additional offenses and relationships, such as dating relationships. See Jeff Welty, Recent Changes to the Pretrial Release Statutes, N.C. Crim. L. Blog (Nov. 19, […]

  3. […] to cover additional offenses and relationships, such as dating relationships. See Jeff Welty, Recent Changes to the Pretrial Release Statutes, N.C. Crim. L. Blog (Nov. 19, […]

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