What happens when a magistrate issues a criminal summons for a defendant but the defendant can’t be located until after the court date on the summons has passed? For example, suppose that Magistrate Morales issues a criminal summons on January 1. The summons orders Defendant Daniels to come to court on February 1 to answer a charge of misdemeanor larceny of his neighbor’s lawnmower. No law enforcement officer is able to locate and serve Daniels until February 14, when Officer Oxendine spots Daniels enjoying a Valentine’s Day meal out with his girlfriend. What’s the officer supposed to do?
Options. The officer might consider the following courses of action:
- She could print out the summons from NCAWARE, scratch out the court date, and write in a new date – for example, March 1. She could then serve the summons. I believe that she would be able to enter the new court date in NCAWARE when recording service of the document, and that NCAWARE would transmit the new date electronically to ACIS.
- She could contact the clerk’s office and ask that office to alter the summons to reflect a new court date – for example, March 1 – and then print out a copy of the updated summons and serve it. To make that process work, I believe that the officer would need to return/reassign the summons to the clerk in NCAWARE and the clerk would need to change the court date and redeliver/reassign the summons back to the officer.
- She could contact the magistrate’s office and ask a magistrate to alter the summons to reflect a new court date – for example, March 1 – and then print out a new copy of the updated summons and serve it. As I understand it, only the magistrate who initially issued the summons or a magistrate with administrative privileges in NCAWARE would have the ability to update the summons.
I wouldn’t recommend the first option. If Officer Oxendine were asking me, I wouldn’t suggest that she change the date on the summons herself. I don’t know of any statutory or other authority for an officer to do that. To the contrary, G.S. 14-221.2 makes it a felony to alter criminal or civil process “without lawful authority.” It may be unlikely that Officer Oxendine would be prosecuted for changing the date herself, but I would never encourage an officer to do something that the statutes seem to forbid. Having said that, it is my understanding that having officers alter summonses is common practice in some areas of the state. I have even heard that at one time, officers were trained to do this as the preferred course of action. And to some extent, NCAWARE accommodates this approach. But even if this is a practical strategy that is widely used and hasn’t led to any difficulties, the rules-following part of me thinks that it isn’t the right course of action.
Monday through Friday during the day: work with the clerk. Suppose that February 14 is a Tuesday and Defendant Daniels and his girlfriend are enjoying a nice Valentine’s Day lunch. In this scenario, I would suggest that Officer Oxendine work with the clerk’s office to update the summons. Although the relevant statutes aren’t completely clear and consistent, asking the clerk to update the summons in NCAWARE would at least be similar to the return and redelivery process described in G.S. 15A-301(d)(4) for summonses created only in paper form. This approach is therefore the closest one to having clear statutory authorization.
Nights and weekends. But what if February 14 is a Saturday, or Daniels and his girlfriend are having dinner rather than lunch? Now contacting the clerk’s office isn’t a realistic option. In this scenario, contacting the magistrate’s office is probably the best option. It isn’t slam dunk obvious that a magistrate has the authority to change the date. But there’s at least an argument that a magistrate would have the inherent authority to do so in the interest of justice, or that a magistrate would be able to do so under his or her responsibility to “keep . . . dockets” under the general supervision of the clerk, G.S. 7A-175, or that the reference to “reissuance” of a summons in G.S. 15A-303(d) would give a magistrate the authority to do so. Of course, as noted above, not every magistrate will be able to change the date in NCAWARE, so this solution won’t always work. And some magistrates may be reluctant to update a summons, especially one issued by another magistrate, without clear authority to do so.
No perfect solution. It’s frustrating that there isn’t a great legal answer to this question, especially as it pertains to nights and weekends. In some cases, officers may end up with no clear path to serving a summons, a result that is at odds with the idea, applicable to summonses created in paper form, that a process being out of date does not invalidate it. See G.S. 15A-301(d)(3). Officers, is it possible for you to track summonses assigned to your agencies and return each unserved summons to the clerk for reissuance with a new date as soon as the first court date passes? Would the volume be overwhelming?
A change to the statutes might help to address this situation. One option would be to authorize officers to set a new date if the original court date has passed. That’s not free from all complications, but the at least the officer wouldn’t need to connect with the clerk’s office or with a magistrate, reassign the process in NCAWARE, and so forth. And officers set court dates all the time when they issue citations, so it is a power that they already exercise. Readers who deal with this issue regularly, what do you think? Other ideas?
Conclusion. I suspect that there are different practices in different places for how to handle this situation. I would be interested to know what solutions are out there. Absent statutory clarification, this may be a topic for law enforcement leaders, clerks, magistrates, and chief district court judges to discuss together.
Finally, I would like to thank the lawyers in the NCAOC legal counsel’s office, who helped me think through many of the permutations and legal issues presented by this scenario. Of course, the viewpoints expressed in this post are mine, not theirs, as are any legal errors and other shortcomings.