Criminal Processes in the Context of the Pretrial Integrity Act

By now, court officials are familiar with the pretrial release laws as amended by the Pretrial Integrity Act. The application of G.S. 15A-533(b) regarding defendants charged with certain high-level felonies has been fairly straightforward. Application of the 48-hour provision, G.S. 15A-533(h), has not been as simple and has given rise to several questions, including what procedures to apply when a criminal process other than an arrest warrant is used.

Under the new law, when a defendant is arrested for a new offense while on pretrial release for a pending proceeding, a judge—rather than a magistrate—must set conditions of release for the new offense within the first 48 hours after arrest. This post addresses the application of this provision with regard to citations, summonses, orders for arrest, and indictments.

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When (and If) an Order for Arrest Should Issue after Dismissal to the Grand Jury

It is no secret that probable cause hearings are rare throughout North Carolina, despite clear provisions for conducting them in the general statutes. See G.S. 15A-606, 611-614. The reasons for their rarity have been set forth on this blog as far back as 2009. Prosecutors often point to the volume of felony cases moving through district court and the impracticality of conducting a mini-trial with “all the trappings of a full adversary hearing” in explaining why they routinely bypass the procedure. See State v. Lester, 294 N.C. 220, 224 (1978). However, skipping the PC hearing can create a gap, or bump, in the “regular” course of a criminal case, leading to various issues.

At the probable cause stage in district court, the defendant may waive the hearing, assert the right to a hearing and get one, or assert the right to a hearing and not get one. In this last scenario, the State, rather than engaging in the hearing, may choose to dismiss the case in district court and then recharge the matter in superior court by seeking an indictment. This practice is referred to as “voluntary dismissal to the grand jury” (VDGJ) or “dismissal for possible indictment.” The State’s bypassing of the probable cause hearing has never been deemed reversible error in North Carolina, as the defendant must demonstrate prejudice, which is rarely possible. See State v. Wiggins, 344 N.C. 18 (1993).

After voluntary dismissal to the grand jury, a crucial question arises as to whether an order for arrest (OFA) should issue upon indictment. The question is the subject of this blog post.

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