The “48-hour rule,” as it is known in domestic violence cases, has been covered on this blog numerous times over the years (see here, here, and here). The rule shifts the responsibility of setting conditions of pretrial release from magistrates to judges in certain cases involving allegations of domestic violence. The rule is set out in G.S. 15A-534.1, which provides that a judge—rather than a magistrate—must set a defendant’s pretrial release conditions during the first forty-eight hours after arrest for certain offenses.
Judicial officials and practitioners who handle criminal domestic violence cases should be familiar with both the statute and the long-standing ruling in State v. Thompson, 349 N.C. 483 (1998), that required dismissal of charges where G.S. 15A-534.1 was violated. Last year, the court of appeals decided State v. Tucker, 291 N.C. App. 379 (2023), which takes a different approach to determining the outcome of a domestic violence case that involves a 48-hour violation. This brief post details the facts of both cases and what Tucker suggests for domestic violence cases moving forward.
State v. Thompson
The court in State v. Thompson has held that the defendant must be brought before a judge at the earliest reasonable opportunity under G.S. 15A-534.1. In Thompson, the defendant was arrested on a Saturday at 3:45 p.m. and was not brought before a judge until Monday at 3:45 p.m., even though judges were available to set pretrial release conditions as of 9:00 a.m. on Monday. The state supreme court ruled that a violation of the defendant’s right to procedural due process occurs where the defendant is held without conditions of pretrial release and a judge was available to set them. The court ordered that the charges against Thompson be dismissed.
In ordering dismissal, the court cited G.S. 15A-954(a)(4), which provides for dismissal of charges when a defendant’s “constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant’s preparation of his case that there is no remedy but to dismiss the prosecution.” However, the court did not discuss the issue of prejudice in detail, so the basis for its conclusion that the statute applied is unclear. Since Thompson, judges and lawyers generally have interpreted it to mean that violations of G.S. 15A-534.1 are inherently prejudicial.
State v. Tucker
In November 2023, the court of appeals decided State v. Tucker, which further explores the issue of prejudice in the context of a domestic violence 48-hour rule violation. According to the court, a defendant can demonstrate prejudice by showing (s)he would have been released earlier had (s)he received a pretrial hearing. (Notably, the defendant in Thompson would have met this standard, as he was apparently released on bail immediately after his delayed hearing.)
In Tucker, the defendant was arrested on several assault charges, and a magistrate set conditions of release. The defendant could not satisfy the financial conditions and remained in custody. Later, he was indicted for additional charges, including a kidnapping charge that was subject to the 48-hour rule. A magistrate declined to impose conditions of release on the kidnapping charge and ordered the defendant to be brought before a judge for that purpose. The defendant was not brought before a judge, and no release conditions were set regarding the kidnapping charge. Six months later, the defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. A judge promptly held a hearing and consolidated the kidnapping charge with the other charges into one set of pretrial release conditions and a combined bond of $250,000. The defendant did not post bond and remained in custody. He was convicted at a bench trial and appealed.
On appeal, the court of appeals affirmed the denial of the defendant’s motion to dismiss. It explained that the State’s inadvertent failure to produce the defendant for the pretrial release hearing, and any complications arising from the Covid-19 pandemic, did not excuse the State. Rather, the defendant could not “show irreparable prejudice to the preparation of his case such that the trial court would have been required to dismiss the kidnapping charge.” The court noted that the defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, the defendant would not have been released.”
Implications for future violations
The Thompson court did not explain what, if any, prejudice to preparation of the defendant’s case it perceived. Therefore, it seemed that a mere violation of the requirements of the domestic violence statute supported dismissal. That remained the prevailing view even after a few post-Thompson cases rejected the notion that a deviation from G.S. 15A-534.1 is always a violation of procedural due process that requires a dismissal. See State v. Malette, 350 N.C. 52 (1999) (holding that there was no evidence that the magistrate arbitrarily set a 48-hour limit as in Thompson or that the State did not move expeditiously in bringing defendant before a judge); State v. Jenkins, 137 N.C. App. 367 (2000) (holding that where the delay is short and attributable to the normal pattern of scheduling in the county, the defendant is less likely to prevail on a Thompson claim).
Tucker provides the clearest counter yet to the notion that a violation of G.S. 15A-534.1 necessarily requires a dismissal. While Tucker doesn’t overrule Thompson, it refines (or perhaps alters) the prejudice analysis to require an inquiry into whether a domestic violence defendant who does not have a timely appearance before a judge—or any appearance at all—would have been released earlier had they received a timely pretrial hearing. This showing may be difficult to make in cases in which the defendant has an extremely high bond, as in Tucker.