North Carolina Department of Justice
North Carolina Department of Justice
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Reply to: WILLIAM N.FARRELL, JR. CRIMINAL DIVISION (919)716-6500

January 24, 2002

Senator Hamilton C. Horton, Jr. 20th District Senate Chamber 1117 Legislative Building Raleigh, North Carolina 27601-2808

Re: Magistrate Discretion to Set Conditions of Pretrial Release for Crimes of Domestic Violence

Dear Senator Horton:

Your letter of 9 January 2002 asked whether a magistrate has the authority to set bail for a defendant charged with domestic violence or is required to place the defendant in custody until a judge can hear the matter.

Under G.S. § 15A-534.1, a magistrate does not have the authority to set conditions of pretrial release for a defendant arrested for a domestic violence crime for the first forty-eight (48) hours after arrest. The statute provides that only a judge may set conditions of pre-trial release in such cases for the first 48 hours after arrest. A copy of the statute is enclosed herewith.

At the present time the crimes of domestic violence applicable to G.S. § 15A

534.1 are assault on a current or former spouse with whom the defendant is living or has lived as if married, communicating a threat (G.S. §14-277) against a current or former spouse with whom the defendant is living or has lived as if married, domestic criminal trespass (G.S. §14-134.3), and violating a protective order (G.S. §50B-4.1). If no judge has set conditions of pretrial release within 48 hours, a magistrate must set conditions of pretrial release.1

1Effective 1 March 2002, Senate Bill 346 adds a number of new crimes for which a judge, not a magistrate, must set bond within the first 48 hours after arrest. A copy of Senate Bill 346 is enclosed for your convenience.

Senator Hamilton C. Horton, Jr. January 24, 2002 Page 2

Joan G. Brannon, a faculty member with the Institute of Government, specializing in matters affecting magistrates and clerks , recently authored an article dealing specifically with domestic violence pretrial release issues. I am enclosing a copy of said article for your information. Ms. Brannon's article explains the "48 hour rule", lists the crimes covered by the 48-hour rule, and summarizes the procedure for applying the rule. This article is a concise but thorough memorandum addressing the special pretrial release rules applicable to domestic violence crimes. I agree with the analysis and conclusions expressed by Ms. Brannon therein.

I trust this letter and enclosed material answered your question and is otherwise helpful to you. If you have any questions or wish to discuss this matter further, please do not hesitate to contact us.

With best regards, I am

Sincerely,

William N. Farrell, Jr. Senior Deputy Attorney General

WNFjr/kj Enclosures

cc: Eddie Speas