Sometimes a defendant is injured prior to or during arrest. When the injury is serious, the defendant may need to go directly to the hospital. May a judicial official, such as a magistrate, come to the hospital to conduct the defendant’s initial appearance? A federal magistrate judge did just that for Dzokhar Tsarnaev, the Boston Marathon bomber, and I’m told that some North Carolina magistrates have occasionally done the same. Continue reading
Tag Archives: Initial appearance
[Author’s Note: This post has been substantively edited to make corrections in response to helpful comments from readers.]
A person generally may not lawfully be arrested unless there is probable cause to believe he has committed a crime. But there are several exceptions to this rule. Most involve arrests made pursuant to an order for arrest issued by a judicial official. A judicial official may, for example, issue an order for the arrest of a defendant who fails to appear in court or who violates conditions of probation. See G.S. 15A-305(b). And there is one circumstance in which a law enforcement officer may, without a judicial order or warrant for the defendant’s arrest and without probable cause to believe a crime has been committed, arrest a defendant. That’s when the officer has probable cause to believe the defendant has violated a condition of pretrial release. G.S. 15A-401(b)(1),(b)(2)(f.). Continue reading →
Category: Procedure | Tags: arrest, conditions of release, domestic violence, Initial appearance, pretrial release
[Author’s note: State v. Townsend was withdrawn and replaced by a subsequent opinion, available here. The portion of the opinion discussed below was unchanged by the subsequent opinion.]
No one gets relief any more under State v. Knoll—at least not from the court of appeals. State v. Townsend, decided today, is the latest in a series of post-Knoll cases in which the defendant failed to establish that he was prejudiced by a magistrate’s alleged statutory violations in setting conditions of pre-trial release, and, thus, failed to establish a basis for dismissal of the charges.
Facts. The defendant in Townsend was arrested at a DWI checkpoint in Charlotte around 11:30 p.m. Forty-five minutes later, he submitted to breath testing in the Breath Alcohol Testing vehicle located at the scene, registering a 0.10 on his first test and a 0.09 on his second. The defendant called his wife to tell her he had been arrested. He told her that he or someone would call her later to come pick him up. The arresting officer then took the defendant to the Mecklenburg County Jail, where he was admitted at 12:56 a.m.
The record of events gets a bit more confusing from here. While the opinion states that the defendant appeared before a magistrate at 2:54 a.m. (some two hours after arriving at the jail), it also adopts the trial court’s finding that the defendant signed an implied consent offense notice (form AOC-CR-271) in front of the magistrate at 2:34 a.m., listing his wife’s name and phone number. The implied consent notice form contains a certification from the magistrate that an initial appearance has been held, so it is odd that the form apparently was signed before the initial appearance.
In any event, the magistrate imposed a secured bond—of sorts. The conditions of release form stated that the defendant was subject to a $1,000 secured bond, but also stated that the bond “may be unsecured to sober responsible adult with ID.” The court of appeals called this an “option bond,” as good a label as any since no such condition is defined in or authorized by statute.
A jail official called the defendant’s wife, who came to the jail. The defendant was released to the custody of his wife at 4:45 a.m., more than five hours after he was arrested and about four hours after he arrived at the jail.
Procedural History. The defendant moved to dismiss the charges pursuant to State v. Knoll, 322 N.C. 535 (1988), arguing that he was denied the right to communicate with counsel and friends and that this denial resulted in substantial prejudice. The defendant specifically complained that the magistrate ordered him held under a $1,000 secured bond without justification, prior to meeting with him, and without making written findings as to why that condition was necessary. The trial court denied the defendant’s motion, and the court of appeals affirmed.
Holding. Though conceding that the magistrate “may have committed a technical statutory violation,” by not making written findings as to its reason for imposing a secured bond, the court of appeals held that the defendant failed to demonstrate how he was prejudiced by that violation. The court noted that the defendant was not in fact required to post a secured bond. Instead, he was released on an unsecured bond to his wife’s custody. Ergo, said the court, he cannot show prejudice. Moreover, the court said that the defendant had several opportunities to call counsel and friends to observe him and help him to obtain an independent chemical analysis, but failed to do so. Thus, he was not “denied his rights pursuant to Knoll.”
Food for Thought. Probably because I regularly teach magistrates about the procedures they must follow in setting conditions of release in impaired driving cases, my reaction to the facts is less sanguine than the court of appeals. For starters, “option bonds” are not a statutory option. Instead, G.S. 15A-534 requires that a magistrate impose at least one of the following conditions of release.
- Release the defendant on his written promise to appear.
- Release the defendant upon his execution of an unsecured appearance bond in an amount specified.
- Place the defendant in the custody of a designated person or organization agreeing to supervise him.
- Require the execution of a secured appearance bond in a specified amount.
- House arrest with electronic monitoring.
A magistrate must impose condition (1), (2), or (3) above unless he or she determines that such release will not reasonably assure the appearance of the defendant as required, will pose a danger of injury to any person, or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. Upon making the determination, the magistrate must then require a secured bond instead of condition (1), (2), or (3), and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge.
Furthermore, the “option bond” imposed in Townsend essentially functioned as an impaired driving hold. It was not, however, accompanied by findings to support such a hold. One could infer that the magistrate imposed the bond to prevent the defendant from gaining immediate release–unless the defendant was released to the custody of a sober, responsible adult. If, however, the magistrate found clear and convincing evidence that the defendant was impaired to the extent he was a danger, the appropriate action would have been to impose an impaired driving hold pursuant to G.S. 15A-534.2 rather than an optional bond. Impaired driving holds are properly recorded on form AOC-CR-270, which contains a place for magistrates to record their findings.
It isn’t clear to me whether there was evidence in Townsend to support such a hold. The defendant’s alcohol concentration was near the per se level, and he was stopped at a checkpoint. Perhaps his alcohol concentration when combined with the signs of intoxication that the officer observed during the field sobriety tests were sufficient to render him dangerous more than three hours after his arrest, but I am somewhat doubtful.
Had the magistrate imposed a written promise or an unsecured bond at the initial appearance, the Townsend defendant would have been released nearly two hours earlier, a difference that may not have affected his ability to gather evidence in any meaningful way. In another case, however, the difference could be significant. A defendant might be held for several hours on an “option bond” when there is no evidence that she is impaired to the extent she is a danger. Conversely, a highly impaired defendant could post bond and gain release without supervision.
Why? I continue to be surprised by the perseverance and prevalence of option bonds. Perhaps they are used to avoid the additional paperwork associated with an impaired driving hold. Perhaps magistrates have decided that statutory procedures must be skirted to protect the public. Or perhaps old habits just die hard. In any event, State v. Townsend again emphasizes that a defendant must prove far more than a misstep by a magistrate to be entitled to dismissal of impaired driving charges under Knoll.
Category: Motor Vehicles, Procedure | Tags: DWI, impaired driving holds, Initial appearance, State v. Knoll, State v. Townsend
Magistrates walk a tight rope of sorts in setting conditions of pretrial release for defendants charged with impaired driving offenses. In addition to taking into account all of the factors they must consider when setting conditions of pretrial release in any criminal case and setting conditions accordingly, see G.S. 15A-534, magistrates who set conditions of release for a person charged with an impaired driving offense must consider whether the person is impaired to the extent that an impaired driving hold must be imposed, see G.S. 20-38.4(a)(3). A hold is required if the magistrate finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he or she is released, of physical injury to the defendant or others or damage to property.
If an impaired driving hold is imposed, the defendant may not be released even if he or she satisfies other conditions of release by, for example, posting the amount of any secured bond. Instead, the defendant must be held until he or she is no longer impaired to the extent he or she poses a danger, or until a sober, responsible, adult appears who is willing and able to assume responsibility for the defendant until he or she is no longer impaired. G.S. 15A-534.2.
Many magistrates want to impose such a hold in every case in which a defendant is charged with impaired driving. They worry that defendants allowed to leave without supervision may return to their cars and drive away, again endangering themselves and the public. Yet the law does not authorize an impaired driving hold to be imposed in every case in which a defendant is charged with impaired driving without additional findings. While magistrates determine whether impaired driving charges are supported by probable cause, the determination regarding the defendant’s impairment for purposes of imposing a hold must be made by clear and convincing evidence. And the question is not whether the defendant was impaired at the time he or she drove. It is, instead, whether the defendant’s current state of impairment presents a danger if he or she is released.
The matter is rendered more complicated by a countervailing concern that causes some magistrates to shy away from imposing a hold even when the statutory standard is satisfied. A defendant charged with an impaired driving offense is entitled to dismissal of the charges if he or she can demonstrate a substantial violation of the right to pre-trial release and irreparable prejudice resulting from the violation. See State v. Knoll, 322 N.C. 535 (1988). Thus, when a defendant is held pursuant to G.S. 15A-534.2 following an impaired driving charge, the magistrate later may be required to testify at a hearing on the defendant’s motion to dismiss regarding the reasons for imposing the hold. If a court determines the hold was not warranted, the charges may be dismissed.
It isn’t always easy to make the right call. There are few bright-line rules, other than that finding probable cause for impaired driving, without more, does not warrant the imposition of a hold. See State v. Labinski, 188 N.C. App. 120 (2008) (finding, in a case in which the defendant’s alcohol concentration measured 0.08, that the magistrate substantially violated defendant’s right to pretrial release by imposing an impaired driving hold without any evidence or finding that the defendant’s impairment presented a danger). Our courts have not established a per se level at which a hold must be ordered. Cf. State v. Bumgarner, 97 N.C. App. 567 (1990) (finding that impaired driving hold was warranted based on magistrate’s consideration of trooper’s testimony, the magistrate’s personal observations, and the results of the sobriety test, which revealed a 0.14 alcohol concentration). That said, alcohol concentrations that are sufficiently high likely do, without more, support the imposition of a hold at an initial appearance that is held within a reasonably short time after the alcohol concentration is gathered. I’m not sure exactly where our appellate courts might set that threshold, but an alcohol concentration of 0.15 may well be enough, particularly given that that level of alcohol concentration renders a person a “[h]igh-[r]isk” driver for purposes of the limited driving privilege law, see G.S. 20-179.3(c1), and is treated, for sentencing purposes, the same as “gross impairment of the defendant’s faculties.” See G.S. 20-179(d)(1). At the other end of the alcohol-concentration spectrum, there doubtless are cases in which evidence supports a finding that a defendant with an alcohol concentration of 0.08 or lower presents a danger if released.
When magistrates impose an impaired driving hold, they must complete form AOC-CR-270, which contains a space for magistrates to list the reasons for the hold. When I talk to magistrates about filling out that form, I encourage them to list all of the evidence they relied upon in determining that a hold was required, including any such evidence related to the defendant’s alcohol concentration, the manner in which the defendant drove, and the defendant’s conduct and physical bearing before and during the initial appearance. Not only does this exercise provide the findings necessary to support the hold, but it can serve to jog a magistrate’s memory about why it was imposed in the event he or she later is called upon to testify.
What’s the practice in your district? Are impaired driving holds routinely or rarely imposed? When they are, are they based upon certain threshold alcohol concentrations or other common case characteristics?
Category: Motor Vehicles, Procedure | Tags: DWI, impaired driving holds, Initial appearance, pretrial release
