One of the projects that I wanted to finish before I go was updating my old paper on the 48-hour rule of G.S. 15A-534.1. I just completed the update. The new paper is available here. It is more comprehensive than before, but in a different format that is a little longer and less handy. It is meant mainly for magistrates but may occasionally be useful for others. If anyone sees errors or problems in it, please let me know. I hope that it is useful.
Tag Archives: 48 hour rule
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session, the General Assembly made two significant changes to the pretrial release statutes: (1) it effectively repealed a “bond doubling” provision for defendants rearrested while on pretrial release, and (2) it expanded the scope of the 48-hour rule for domestic violence cases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. Continue reading →
Same sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the Administrative Office of the Courts, that magistrates could be charged criminally for refusing to marry same-sex couples. As noted in this recent news article, a number of magistrates have resigned as a result. But the issue I’ve been asked most about is how same-sex marriage relates to our domestic violence laws.
G.S. 14-196.3 prohibits “cyberstalking,” which the statute generally defines to mean using electronic communications to threaten, extort, make an abusive or embarrassing false statement about, or repeatedly harass another person. As Jessie noted in this prior post, cyberstalking has become a frequently charged offense. It can be committed by text message, email, Facebook, and other means.
I’ve been asked several times recently whether the so-called 48 hour rule, set forth in G.S. 15A-534.1, applies to cyberstalking. That statute provides that for certain domestic violence crimes, bond must normally be set by a judge rather than a magistrate. The statute allows a defendant to be held for up to 48 hours if a judge is not immediately available. I’ve previously written about the 48 hour rule here.
The 48 hour rule applies to “all cases in which the defendant is charged with assault on, stalking, communicating a threat to, or committing [certain felonies] upon a spouse or former spouse or a person with whom the defendant lives or has lived as if married, with domestic criminal trespass, or with violation of [a DVPO].”
Does the statute’s reference to “stalking” include cyberstalking? I don’t think so, for two reasons.
- First, although the 48 hour rule has been around since 1995, S.L. 1995-527, “stalking” was only added to the statute in 2007, S.L. 2007-14. Both the original stalking statute, G.S. 14-277 (enacted by S.L. 2001-518), and the cyberstalking statute (enacted by S.L. 2000-125) existed at that time. The General Assembly’s decision to add the term “stalking” but not the term “cyberstalking” to G.S. 15A-534.1 may have been a deliberate choice. To the extent that the statutory language is ambiguous, the rule of lenity suggests that the term “stalking” should be strictly construed not to include cyberstalking.
- Second, the cyberstalking statute is clearly patterned on the harassing phone calls statute, G.S. 14-196, not on the “regular” stalking statute, and the General Assembly chose not to include harassing phone calls in the 48 hour law.
Based on the foregoing, I don’t think that the 48 hour rule generally applies to cyberstalking charges. However, there’s one possible limited exception. The cyberstalking statute encompasses certain threatening communications. One could argue that the 48 hour rule should apply to cases of cyberstalking that involve threats based on the provision in G.S. 15A-534.1 regarding “communicating a threat.” (The same argument could be made for harassing phone calls that involve threats.)
I’ve always thought of the reference in G.S. 15A-534.1 to communicating threats to mean simply that the 48 hour rule applies to charges under G.S. 14-277.1, the communicating threats statute. And I’ve always thought of the 48 hour rule as binary – either it applies to all the charges under a certain statute or it doesn’t apply to that statute at all. But I can see a contrary argument, and I don’t think that there’s a case that squarely addresses the issue.
I’d be interested in feedback about whether, in practice, the 48 hour rule is ever being applied to harassing phone calls or to cyberstalking. But the issue may not arise very often, because in most cases, a phone call or an electronic communication that includes a threat would likely be charged under G.S. 14-277.1, a Class 1 misdemeanor to which the 48 hour rule clearly does apply, instead of or in addition to being charged as a harassing phone call or cyberstalking (both Class 2 misdemeanors).
It is also worth noting that some conduct that violates the cyberstalking statute will also violate the current “normal” stalking statute, G.S. 14-277.3A, to which the 48 hour rule also clearly applies.
In my first post in this series, I addressed the issue of who is entitled to conditions of pretrial release. In this post, I’ll address who can set conditions and what pretrial release options are available.
Who Sets Conditions
Conditions of pretrial release are set by a judicial official G.S. 15A-532(a). Typically, conditions are set by a magistrate or a district or superior court judge, but the term judicial official also includes clerks and appellate judges and justices. G.S. 15A-101(5). However, there are certain situations when only a specific judicial official is authorized to set conditions. Those situations include:
- Forty-Eight-Hour Rule Cases. As Jeff noted in a previous post here, only a judge can set conditions of release for a defendant charged with certain domestic violence crimes in the first forty-eight hours after arrest.
- Capital Offenses. It is within the discretion of a judge (and only a judge) to decide whether a defendant charged with a capital offense will be released before trial. G.S. 15A-533(c). If a person brought before a magistrate is charged with a capital offense, the magistrate must commit the person to jail for a judge to determine the conditions of release at the first appearance.
- Certain Drug Trafficking Offenses. As noted in my first post in this series, G.S. 15A-533(d) provides a rebuttable presumption of no release for drug trafficking offenders if certain findings are made. If the relevant findings are made, only a district or superior court judge may set pretrial release conditions after finding that there is a reasonable assurance that the defendant will appear and that the release does not pose an unreasonable risk of harm to the community. G.S. 15A-533(e).
- Certain Gang Offenses. As noted in my first post in this series, G.S. 15A-533(e) provides a rebuttable presumption of no release for gang-related offenders if certain findings are made. If the relevant findings are made, only a district or superior court judge may set pretrial release conditions after finding that there is a reasonable assurance that the defendant will appear and that the release does not pose an unreasonable risk of harm to the community. G.S. 15A-533(e).
Pretrial Release Options
G.S. 15A-534 provides that in determining conditions of pretrial release, a judicial official must impose at least one of the following five conditions listed immediately below. Because that statute authorizes imposition of at least one of these conditions, multiple conditions may be imposed.
- Release on written promise to appear. This release involves no money. The defendant simply is released on his or her written promise to appear in court. G.S. 15A-534(a)(1).
- Custody release. A custody release is a release to a designated person who or organization that agrees to supervise the defendant. G.S. 15A-534(a)(3). Like a release on a written promise to appear, no money secures this condition of release. G.S. 15A-534(a) provides that if this condition is imposed, the defendant may elect to execute a secured appearance bond instead.
- Release on unsecured appearance bond. G.S. 15A-534(a)(2). An unsecured bond is one that is backed only by the integrity of the defendant; it is not backed by assets or collateral.
- Release on secured appearance bond. A secured appearance bond is one that is backed by a cash deposit in the full amount of the bond, by a mortgage, or by at least one solvent surety. G.S. 15A-534(a)(4).
- House arrest with electronic monitoring. In this form of pretrial release, the defendant is required to remain at his or her residence unless the court authorizes departure for employment, counseling, a course of study, or vocational training. G.S. 15A-531(5a). The defendant must be required to wear a device which permits the supervising agency to electronically monitor compliance with the condition. Id. If this condition is imposed, the judicial official also must impose a secured appearance bond. G.S. 15A-534(a).
Effective February 1, 2011, see S.L. 2010-94, G.S. 15A-534 provides that if a defendant is required to provide fingerprints pursuant to G.S. 15A‑502(a1) or (a2), or a DNA sample pursuant to new G.S. 15A‑266.3A or revised G.S. 15A‑266.4, and (i) the fingerprints or DNA sample have not yet been taken or (ii) the defendant has refused to provide the fingerprints or DNA sample, the judicial official must make the collection of the fingerprints or DNA sample a condition of pretrial release.
Effective December 1, 2011, and applying to offenses committed on or after that date, S.L. 2011-191 added a new subsection to G.S. 15A-534 providing that in addition to any other condition of pretrial release, a judicial official may order a defendant (i) charged with an offense involving impaired driving (as defined by G.S. 20‑4.01(24a)), and (ii) having a prior conviction for an offense involving impaired driving that occurred within seven years before the date of the offense for which the defendant is being placed on pretrial release to abstain from alcohol consumption as verified by an approved continuous alcohol monitoring system for the period of pretrial release or until the condition is removed.
In addition to the forms of release specified above, G.S. 15A-535(b) provides that in any county in which there is a pretrial release program, the senior resident superior court judge may, after consultation with the chief district court judge, order that defendants accepted by such programs for supervision must, with their consent, be released by judicial officials to supervision of such programs, and subject to their rules and regulations, as an alternative to release on a written promise, unsecured bond, or a custody release.
Under G.S. 15A-534.1, when a defendant is charged with assault, stalking, communicating threats, or certain other crimes against “a spouse or former spouse or a person with whom the defendant lives or has lived as if married,” a judge, rather than a magistrate, must set the defendant’s bond. The same rule applies when a defendant is charged with domestic criminal trespass or with violating a domestic violence protective order. If, after 48 hours, a judge hasn’t yet set the defendant’s bond, a magistrate acquires the power to set the bond. For example, if a defendant is arrested on Friday night, normally no judge will be available until Monday. Therefore, on Sunday night, after 48 hours have elapsed, a magistrate should set a bond for the defendant.
The constitutionality of the statute was generally upheld in State v. Thompson, 349 N.C. 483 (1998), which concluded that the statute was regulatory, rather than punitive, and “serves the General Assembly’s legitimate interest in ensuring that a judge, rather than a magistrate, consider[s] the terms of a domestic-violence offender’s pretrial release.” Note that the purpose of the 48 hour rule is not to allow the defendant to cool down. Id. If the defendant needs to cool down, the judge may detain the defendant for a “reasonable period of time,” with proper findings, to allow for that. G.S. 15A-543.1(a)(1). But that period of time transpires after the bond hearing, not before.
There are a few recurrent issues that arise with respect to the 48 hour rule.
First, the rule is sometimes called a “48 hour hold.” I don’t like that description, because it suggests that the defendant should always be held without bond for 48 hours. In fact, the rule doesn’t authorize a hold for any reason other than the unavailability of a judge. If a judge is available — basically, if court is in session — then the defendant should not be held. He or she should be taken promptly before the judge. If a defendant is held for 48 hours even though a judge has been available in the interim, dismissal of the charges is warranted. Id. See also State v. Clegg, 142 N.C. App. 35. But cf. State v. Jenkins, 137 N.C. App. 367 (2000) (although there was a session of court at 9:30 a.m. and the defendant was not taken before a judge until 1:30 p.m., the defendant’s bond hearing took place within a “reasonably feasible” period of time and dismissal was not required).
Second, the extent to which the rule applies to same-sex couples isn’t clear. It certainly does when one member of a same-sex couple is charged with violating a domestic violence protective order obtained by the other. (Such orders can be issued to “current or former household members,” which obviously encompasses some same-sex couples. G.S. 50B-1(b)(5).) But what about when the charge is assault, or one of the other crimes for which the rule applies only to “a spouse or former spouse or a person with whom the defendant lives or has lived as if married”? Can a same-sex couple in North Carolina live together “as if married,” given that state law precludes same-sex marriage? If a same-sex couple marries in another state, then moves to North Carolina, are the members of the couple “spouses” for this purpose? There’s no case on point, and the criminal law faculty here at the School of Government disagree about the right answer and about the best practice given the uncertainty in this area. My own view is that the rule does apply to same-sex couples, based in part on the contrast between G.S. 50B-1(b)(2) (which specifies “persons of opposite sex who live together or have lived together,” when defining the relationships that can support a domestic violence protective order) and G.S. 15A-534.1(a) (which says nothing about “opposite sex” when defining the relationships that trigger the 48 hour rule). But let me repeat that others here disagree, and more importantly, that the courts haven’t spoken. I’d be very interested to know what the practice is out there, and whether any counties have a written or unwritten policy about this issue.
Third, I was recently asked whether the rule applies to opposite-sex relationships in which a legal marriage is impossible, such as between first cousins, [update: first cousins can marry in North Carolina but not double first cousins, G.S. 51-3] or between people who are already married to others. I think so. The purpose of the law is to ensure that domestic violence cases are handled carefully, by legally-trained judicial officials, presumably because of the risks of repeat violence inherent in such cases. That purpose is served by interpreting “as if married” to mean “romantic, not just roommates,” rather than as requiring a careful inquiry into the defendant’s eligibility to marry the alleged victim.