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Chapter 1

Pretrial Release

1.1 Importance of Pretrial Release 1-3

1.2 Required Proceedings 1-3

A. Initial Appearance

B. Misdemeanors

C. Felonies

1.3 Eligibility for Pretrial Release 1-6

Domestic Violence and Probation Cases

D. Pretrial Release Conditions Set but Release Delayed:

Impaired Driving and Other Cases

E. Pretrial Release Conditions Denied:

Capital, Probation, and Other Cases

F. Certain Release Conditions Required:

Failures to Appear, Probation, and Other Cases

G. Circumstances Not Justifying Delay or Denial

of Pretrial Release

1.5 Types of Pretrial Release 1-15

B. Restrictions on Activities

C. Secured Bond as Last Resort

D. Amount of Secured Bond

E. Type of Security

F. Source of Funds for Secured Bond

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1.7 Investigation and Preparation for Bond 1-22

Reduction Motion

A. Modification of Pretrial Release Conditions

B. Consequences of Violation of Conditions

C. Consequences of Failure to Appear

D. Orders for Arrest

E. Bond Forfeitures

F. Surrender by Surety

G. Return of Security

H. Post-Release Issues Affecting Noncitizen Clients

1.10 Release Pending Appeal 1-32

A. Appeal from District Court Conviction

____________________________________________________________

Sections 15A-531 through 15A-547.1 of the North Carolina General Statutes (hereinafter G.S.)

contain the basic provisions on pretrial (and posttrial) release for criminal charges. See also G.S.

15A-1345(b), (b1) (release conditions in probation cases). Subject to these general requirements,

local policies and practices may vary. See G.S. 15A-535(a) (senior resident superior court judge,

in consultation with chief district court judge or all district court judges in district, must issue

pretrial release policies for each county in judicial district); see also State v. Harrison, ___ N.C.

App. ___, 719 S.E.2d 204 (2011) (district court judge did not err by not following administrative

consult the motions bank for non-capital cases on the IDS website, www.ncids.org (select

“Training & Resources,” then “Motions Bank, Non-Capital”).

Conditions of pretrial release are set by judicial officials. See 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. See G.S. 15A-101(5). There are

certain situations, discussed in this chapter, in which only a specific judicial official is authorized

to set conditions.

A critical first step in any case is to seek pretrial release of an in-custody client. Pretrial

release has an obvious and immediate benefit for your client, but it also has other positive

consequences for preparation of the case.

 Your client can meet with you more easily and help you prepare for trial by, for

example, showing you relevant places and locating witnesses.

 Your client has the opportunity to demonstrate good behavior by getting a job,

supporting his or her family, and other actions.

In some situations, your client may decide not to seek pretrial release. For example, he or

she may have a better chance of receiving a misdemeanor plea on a felony charge or a

sentence of time served. He or she also may have personal reasons (drug addiction,

homelessness, or the prospect of a violent confrontation with another person) for

preferring to stay in jail. Ultimately, however, it is for the client to decide whether to

forego seeking pretrial release. See generally N.C. STATE BAR REV’D RULES OF PROF’L

CONDUCT R. 1.2 (allocation of authority between lawyer and client).

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By the time counsel is appointed, the defendant ordinarily will have appeared at least

once before a judicial official on the question of pretrial release. On arrest, the defendant

must be taken without unnecessary delay before a magistrate or other judicial official for

an initial appearance. See G.S. 15A-501(2); G.S. 15A-511. An initial appearance before a

magistrate is required on arrest in both misdemeanor and felony cases. See G.S. 15A-511

(requirements of initial appearance). In most instances, the magistrate must set conditions

of pretrial release. Defense counsel ordinarily has no input at this stage of the case;

however, counsel who already represents the client may be able to speak with the

2009/08 (UNC School of Government, Dec. 2009) [hereinafter Smith], available at

http://sogpubs.unc.edu/electronicversions/pdfs/aojb0908.pdf.

review pretrial release conditions in a misdemeanor case. Typically, at initial appearance

the magistrate sets a trial date in district court, which may be a week or more away. At

the first trial date, the district court may appoint counsel and continue the case but does

not necessarily reconsider pretrial release conditions. By the time counsel learns of

who then can act to protect the client’s rights, such as moving to modify pretrial release

conditions. In practice, however, many districts may not be following the statute’s

requirements—for example, the custodian may not have a procedure in place for

reviewing whether inmates have counsel and for notifying the Public Defender or clerk.

of counsel and the consideration of pretrial release conditions by a judge, but such

procedures are not in place statewide. Some public defender offices have a system for

reviewing the jail list to determine whether new inmates have counsel and to ensure that

counsel is appointed. Some judicial districts hold first appearances for misdemeanors,

magistrates who are licensed attorneys to appoint counsel in noncapital cases for

defendants entitled to counsel at state expense, but most magistrates are not attorneys.

appears before a district court judge for a first appearance. For an in-custody defendant,

the first appearance must occur within 96 hours of arrest or at the next regular session of

district court, whichever is earlier. At the first appearance, the district court judge (or

clerk of court if no district court judge is available) appoints counsel and reviews the

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the judge finds probable cause to bind the defendant over to superior court, he or she

must review the defendant’s conditions of pretrial release. See G.S. 15A-614. Counsel

should be prepared to cite this provision because the State may argue, erroneously, that

the district court no longer has jurisdiction to modify bond once it has found probable

cause.

In many judicial districts, probable cause hearings seldom occur so the district court does

not necessarily reconsider the defendant’s eligibility for release. The probable cause stage

of a case still may afford the opportunity to obtain more favorable pretrial release

arrest, the magistrate still must hold an initial appearance and determine pretrial release

conditions; however, if the superior court has specified a bond amount in the order for

arrest, it is unlikely that the magistrate will lower the bond.

noncapital criminal defendant has the right to pretrial release under G.S. 15A-533). The

exceptions are discussed infra § 1.4, Exceptions to Eligibility for Pretrial Release.

same right as other noncapital defendants to have conditions of release set pending a

violation hearing. See G.S. 15A-1345(b); STEVENS H. CLARKE, LAW OF SENTENCING,

PROBATION, AND PAROLE IN NORTH CAROLINA 180 (UNC Institute of Government, 2d ed.

1997). Courts sometimes set a bond to apply in the event the defendant violates a

condition of probation. This practice has been questioned by the N.C. Court of Appeals

and at most constitutes a recommendation should the defendant be arrested for a

In 2009, the General Assembly created exceptions to the usual pretrial release rules in

cases in which the defendant is on probation and is charged with a felony. See infra §

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North Carolina’s capital scheme had been declared unconstitutional. Sparks may be

limited to the unusual circumstances of that case and may not deny a defendant the right

to have pretrial release conditions set in a first-degree murder case once the State has

decided to proceed noncapitally.

By the time counsel appears in the case, some of these obstacles to pretrial release will

only, as its effect is to deprive the defendant of other protections afforded at initial

appearance, including the advisement of charges and of the right to communicate with

counsel.

effect of delaying the setting of pretrial release conditions. Although not specifically

authorized by statute, a short delay incidental to this investigation may be permissible. If

a magistrate lacks identifying information about the defendant, he or she may take that

factor into account in determining the conditions of release to impose. See Smith at 21–

A magistrate may not insist on official United States or North Carolina identification as a

condition of release; any reasonable form of identification should be sufficient, even if

not in writing (for example, a member of the community might vouch for the defendant’s

1.9H, Post-Release Issues Affecting Noncitizen Clients.

release. If a judge is not available within 48 hours of arrest, a magistrate must proceed to

set pretrial release conditions. See G.S. 15A-534.1. Note that G.S. 15A-534.1 does not

authorize a 48-hour hold on defendants arrested for the specified offenses. A defendant

must be brought before a judge at the earliest opportunity, and the failure to do so may

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mechanics of posting a secured bond, see Smith at 38–44, available at

http://sogpubs.unc.edu/electronicversions/pdfs/aojb0908.pdf.

in the full amount of the bond. See G.S. 15A-534(a)(4); G.S. 58-75-1 (person may post

cash or securities of State of North Carolina or United States to satisfy bond

requirement). When the defendant deposits cash, no one other than the defendant need

sign the bond.

The AOC form appearance bond (AOC-CR-201) requires the defendant to agree that cash

agreement to such a condition is not specifically authorized by statute, but it may be

difficult for a convicted defendant to challenge the use of a cash bond for this purpose.

Counsel should be alert, however, to the practice of bond being set in the amount alleged

“accommodation” or “property” bondsman, promises to pay the amount of the bond in

the event of breach. The person must provide evidence that he or she has sufficient

property (real or personal) to satisfy the bond. See G.S. 58-71-1(1). Although the statute

does not require the person to post any property as security, some counties may require

the person to provide security (such as a deed of trust, certificate of deposit, etc.) for

bonds over a certain amount. For large bonds, many counties will allow two or more

people to split the bond—that is, divide the liability. For example, on a $50,000 bond,

two sureties (commercial or noncommercial) could agree to be liable for half of the bond.

If a judicial official imposes electronic house arrest (EHA) as a form of pretrial release,

he or she also must impose a secured bond. See G.S. 15A-534(a). A magistrate should not

impose EHA as a condition of release if the program is not then able to accept the

defendant—for example, it does not have equipment available to place the defendant on

EHA. Such a pretrial release condition would amount to denial of pretrial release, which

ordinarily is impermissible. See supra § 1.4, Exceptions to Eligibility for Pretrial Release.

involved with defendants, obtaining substance abuse treatment for them and coordinating

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Programs that supervise defendants can be thought of as an additional type of pretrial

release. See G.S. 15A-535(b) (judge may release defendant to supervision of pretrial

services program, with defendant’s consent, in lieu of other types of pretrial release).

Defendants supervised by a pretrial services program often do not have to post bond and

may obtain release more quickly than they otherwise could. Defendants may have to

comply with various conditions, such as reporting periodically to a pretrial services

caseworker, obtaining substance abuse treatment, etc. If the defendant complies with the

conditions of supervised release, the pretrial services caseworker may be a helpful

witness at sentencing. If the defendant fails to comply with the conditions, the pretrial

Although judges have considerable discretion in specifying conditions of pretrial release,

some constraints exist.

charges). Studies have indicated that the seriousness of the charged offense does not

necessarily predict whether the defendant will fail to appear for court or commit a new

crime. See, e.g., STEVENS H. CLARKE ET AL., REDUCING THE PRETRIAL JAIL POPULATION

AND THE RISKS OF PRETRIAL RELEASE: A STUDY OF CATAWBA COUNTY, NORTH

CAROLINA (UNC Institute of Government, 1988).

G.S. 15A-534(a) (general restrictions); G.S. 15A-534.1 (restrictions for certain domestic

violence offenses); G.S. 15A-534.4 (restrictions for certain sex offenses and crimes of

violence against children). The restrictions must be reasonable and must relate to the

goals of pretrial release. See G.S. 15A-534(b) (identifying goals of pretrial release).

to these statutes were part of a larger act authorizing CAM in a range of circumstances,

The CAM legislation does not provide for assessment of costs for CAM when imposed as

a condition of pretrial release. Cf. supra § 1.5C, Electronic House Arrest (applicable

1343.3(b) (statute provides for payment of CAM costs to provider when CAM is imposed

as condition of probation). The Administrative Office of the Courts has taken the position

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that in the absence of statutory authorization, costs may not be assessed for CAM as a

condition of pretrial release. As a practical matter, however, the CAM provider is

unlikely to agree to put a defendant on CAM unless the provider receives payment. A

defendant’s inability to pay may give counsel a basis for arguing for alternative

conditions of release that do not impose a financial barrier to release.

The judicial official must impose one of the less onerous types of pretrial release (written

promise to appear, unsecured bond, or custody release) unless he or she determines that

because defendant was not prejudiced in preparation of her defense); Pugh v. Rainwater,

572 F.2d 1053 (5th Cir. 1978) (en banc) (incarceration of those who cannot afford money

bail, without meaningful consideration of other forms of pretrial release, violates due

secured bond).

bail, court notes that primary purpose of appearance bond is to assure defendant’s

presence at trial); G.S. 15A-534 Official Commentary; see also Stack v. Boyle, 342 U.S. 1

(1951) (bail set in amount higher than reasonably necessary to assure defendant’s

appearance excessive under Eighth Amendment); 4 LAFAVE, CRIMINAL PROCEDURE §

S. SAXON, PRETRIAL RELEASE IN DURHAM, NORTH CAROLINA (UNC Institute of

Government, 1987) (so finding).

As a practical matter, judicial officials may set a high secured bond, one the defendant is

unlikely to make, when they believe the defendant would pose a danger if released. Such

a practice arguably amounts to a form of preventive detention not specifically authorized

by statute. See supra § 1.4, Exceptions to Eligibility for Pretrial Release. It may be

difficult, however, for a defendant to establish that a high bond was not for the purpose of

assuring his or her appearance at trial. See 4 LAFAVE, CRIMINAL PROCEDURE § 12.3(a), at

statute allows the judicial official to choose among the five different forms of pretrial

release (written promise to appear, unsecured bond, etc.); but, if the judicial official

chooses a secured bond, a defendant may satisfy the bond by any of the indicated forms

register with superior court clerk in counties where they write bail bonds).

term cash, such as “U.S. currency,” “cash money,” or “green money.” This practice

appears inconsistent with the above statutory provisions on the posting of bond by a

surety bondsman in lieu of cash.

531(4) to provide that a bail bond signed by either a surety bondsman or a professional

still must be satisfied by cash.)

The court may refuse to accept money or property offered as security where the State

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trying to post “drug money” for the release of a defendant who is a smaller player in the

drug trade.

After the client interview, verify as much information as possible and talk to people who

might supervise your client. Your client’s position is immeasurably improved if you can

attest to the information. Before contacting employers and others, however, be sure that

your client is willing to have them informed of the pending criminal charges.

the prosecutor may have about a bond reduction, particularly if you can suggest suitable

non-financial conditions of pretrial release. For example, if the prosecutor is concerned

about problems your client has had with substance abuse, participation in a treatment

program might be an acceptable condition of pretrial release.

willing to supervise the defendant on a custody release. Plan to flesh out your arguments

with specific facts—for example, proposals for your client’s constructive use of time,

suggested educational or employment situations, ways to maintain frequent contact

between your client and the supervising party, etc. Also, obtain your client’s criminal

record and be prepared to respond to the prosecutor’s argument that your client is at risk

court judge may modify a release order of a magistrate or clerk or an order entered by

him or her. See G.S. 15A-534(e) (authorizing district court judge to modify pretrial

release conditions except when superior court judge has ruled on prosecutor’s application

for revocation or modification of pretrial release under G.S. 15A-539). In a felony case,

the district court retains jurisdiction to review a defendant’s pretrial release conditions

even upon finding probable cause to bind the defendant over to superior court. See G.S.

15A-614 (requiring judge to review the defendant’s conditions of pretrial release upon

binding the defendant over to superior court).

A district court judge appears able to modify a pretrial release order entered by another

district court judge. Although G.S. 15A-534(e) states that a district court judge may

modify a release order “entered by him,” case law establishes that one judge may modify

Case pending in superior court. After a case is before the superior court, a superior court

judge may modify the pretrial release order of a magistrate, clerk, or district court judge,

or any order entered by him or her. See G.S. 15A-534(e). Here, again, general case law

however, the court and prosecutor may be more receptive to a bond reduction at certain

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points in the case, such as when counsel first enters the case, at the time of a scheduled

probable cause hearing in a felony case, or after some time has passed without the case

coming to trial.

G.S. 15A-951, which governs motions practice in general, provides that pretrial motions

must be in writing and served on the prosecutor. Oral bond motions may be permissible

at certain stages of the case, such as at a first appearance in district court. See G.S. 15A-

605 (directing district court judge to review pretrial release at first appearance). In most

instances, and in all felony cases, a written motion is advisable. A sample bond motion

relatives, friends, or employers of the defendant attend the hearing, defense counsel can

tender them to the court or prosecutor for questioning rather than have them formally

sworn.

On prosecutor’s motion. Under G.S. 15A-539, the prosecutor may apply to an

appropriate district or superior court judge for revocation or modification of a release

order. See also G.S. 15A-534(f) (any judge may revoke release order for good cause).

The prosecutor may not apply ex parte for revocation or bond modification. See N.C.

State Bar, 2001 Formal Ethics Opinion 15 (2002) (so stating); see also State v. Hunt, 123

N.C. App. 762 (1996) (grand jury issued indictment against defendant who was

represented by counsel on other charges, and prosecutor asked judge to issue arrest order

and set bond for charges in indictment; court found that prosecutor’s request was not

modify or revoke.

The factors the judge must consider in initially setting pretrial release conditions (see

supra § 1.6A, Factors) also may bear on a prosecutor’s motion to revoke or modify. If the

judge revokes a release order, the defendant has the right to have new conditions of

pretrial release determined, and counsel should request that they be set. See G.S. 15A-

534(f).

In habitual felon cases. In cases in which a person charged with a felony is later indicted

BULLETIN No. 2013/07, at 19–21 (UNC School of Government, Aug. 2013) (favoring

decision does not constitute a change that warrants modification, particularly if the

defendant has made his or her prior court appearances.

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Noncitizen clients who have been arrested may be subject to a detainer by Immigration

and Customs Enforcement (ICE). If a noncitizen client makes bond in the state criminal

case but ICE has issued a detainer (also called a hold), the client is taken into custody by

ICE on the client’s release from jail and, unless released by ICE, may not be available to

appear in and defend the criminal case. As a result, the client may be called and failed in

the state criminal case, be the subject of an order for arrest, and, most important for this

discussion, have the bond forfeited. If after making bond the client is never going to be

able to appear in the criminal case, there is little benefit for the client or a family member

arrangements are made for release from ICE custody (through an immigration bond or

release on the client’s own recognizance). Appointed counsel in the criminal case should

coordinate with an immigration attorney about the possibility of obtaining pretrial release

507 (1970) (when a defendant appeals and exercises his or her right to be tried by a jury,

the district court conviction “is completely annulled and is not thereafter available for any

purpose”).

pretrial release order until “noting of an appeal”) with G.S. 7A-290 and 15A-1431(c) (if

defendant appeals, clerk transfers case to superior court ten days after date of district

court judgment).

As a result of the conflict in the statutes, three interpretations have arisen as to district

court judges’ authority to modify pretrial release conditions after an appeal: (1) the judge

loses authority over the case as soon as the defendant appeals; (2) the judge loses

authority at the end of that day’s session even if the defendant appeals during the session

(by analogy to the limits on the judge’s authority to modify judgments after the end of the

court’s judgment when they are concerned about how a district court judge may react to

an appeal. See G.S. 15A-1431(c), (d) (providing that within ten days of entry of

judgment, notice of appeal may be given in writing to clerk if defendant has not yet

appeals. Generally, however, a court may not make an anticipatory ruling on bond or

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violates; if judge addresses matter at time of probationary judgment, better practice

would be to make recommendation only). Such a recommendation would not affect the

defendant’s release conditions, which would remain the same until a judge, considering

the issue after the filing of appeal, modified the conditions. An anticipatory ruling, even

in the form of a recommendation, also could have an impermissible chilling effect on the

defendant’s exercise of his or her rights, discussed next.

Constitution and article I, section 24 of the North Carolina Constitution guarantee

defendants in criminal cases the right to a trial by jury. Pursuant to G.S. 7A-290 and G.S.

convicted of offense in district court in North Carolina is entitled to pursue right to a trial

de novo, without apprehension that the State will retaliate by substituting a more serious

charge for the original one; due process requires that such a potential for vindictiveness

see the non-capital trial motions bank on the IDS website at www.ncids.org.

consider setting release conditions; defense counsel must affirmatively move for release.

sets a high bond on appeal of a case involving a probationary sentence). A sample motion

for bond pending appeal appears in the non-capital trial motions bank on the IDS website

at www.ncids.org.

designated judicial official has not acted within 24 hours, any judicial official is required

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A denial of the opportunity to obtain evidence may violate both the defendant’s statutory

and constitutional rights. See State v. Hill, 277 N.C. 547 (1971) (Sixth Amendment of

U.S. Constitution and article I, section 23 of North Carolina Constitution give the

defendant the right to have counsel and obtain witnesses on his or her behalf); State v.

Knoll, 322 N.C. 535 (1988) (finding statutory violation). Defense attorneys who handle

impaired driving cases should become familiar with the specialized post-arrest and

pretrial release procedures applicable in such cases, described briefly below, which if

violated may amount to a constitutional as well as statutory violation.

evaluate the applicable case law as well as the receptivity of local judges to Knoll motions,

which varies significantly around the state. Key points to keep in mind in making such

motions are discussed below.

follow the procedures set forth in G.S. 15A-534.2 and G.S. 20-38.4 (enacted in 2006). In

conjunction with a DWI hold, a magistrate also may set other conditions of pretrial

result in an impermissible hold and deny the defendant the opportunity to obtain evidence

for his or her defense). Once a defendant satisfies the conditions of the DWI hold and any

bond or other condition of pretrial release, the defendant must be released. The DWI hold

must be lifted once the defendant’s blood alcohol level is .05 or below (unless there is

evidence that the defendant is impaired from some other substance) and in any event after

24 hours. The defendant is then only required to satisfy any bond or other condition of

pretrial release. G.S. 15A-534.2.

If a defendant is unable to obtain immediate release because of an inability to meet the

conditions of the DWI hold or any bond or other pretrial release condition, he or she is

still entitled to meet with counsel and witnesses while in custody. The arresting officer

analysis); G.S. 20-38.5 (requiring each district to put in place various procedures to

satisfy defendant’s rights); G.S. 20-139.1(d) (in-custody defendant has right to arrange

for additional testing); see also generally G.S. 15A-501(5) (law enforcement officer must

without unnecessary delay advise arrested person of right to communicate with counsel

and friends and must allow reasonable time and opportunity to do so).

generally been upheld by our courts. A magistrate may impose a DWI hold, as described

above, and may impose other conditions of pretrial release, including a secured bond in

appropriate circumstances. See State v. Bumgarner, 97 N.C. App. 567 (1990) (upholding

Various violations of pretrial release requirements may still occur, however, that prevent

the defendant from obtaining evidence for his or her defense. The following are some

errors you may encounter:

magistrates may impose a high secured bond only, with a provision that the bond

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automatically converts to a lower or unsecured bond after the passage of so many

hours. Such “convertible” bonds, which are evidently intended to keep the defendant

in custody for a specified period of time, may prevent the defendant from obtaining

evidence and therefore violate Knoll. Because secured bonds may improperly deny

access to counsel and witnesses, some districts have a policy of not imposing secured

bonds in impaired driving cases.

resulted in “prejudice” in the sense required by the cases—that is, the defendant must

show that the violation actually denied the defendant the opportunity to obtain evidence

witnesses while detained. In State v. Labinski, 188 N.C. App. 120 (2008), four of the

defendant’s friends went to the magistrate’s office after her arrest, but the court found

that neither the defendant nor her friends specifically asked to see or talk with each other

magistrate should have released the defendant to the friend and that the defendant’s 18-

hour confinement, in which she was permitted to meet with her friend for only eight

Shea Denning, State v. Daniel Tees up an Analysis of Prejudice, N.C. CRIM. L., UNC

SCH. OF GOV’T BLOG (Dec. 9, 2010), http://nccriminallaw.sog.unc.edu/?p=1811.

In light of the prejudice requirement as interpreted in Knoll and subsequent cases, defense

counsel should be prepared to show how the violations denied the defendant the

opportunity to obtain evidence for his or her defense. The showing of prejudice will vary

with the violation and its impact. Thus, in a case in which the defendant was not advised

of his or her rights, counsel may not need to show more than the failure to advise because

the defendant would not have known of the steps that he or she could take. In a case in

which the defendant was advised of his or her rights, counsel may need to show that the

defendant sought to exercise them (for example, asked to see counsel or witnesses) and

per se impairment theory—that is, on the basis of an intoxilyzer reading of .08 or more

(at the time, .10 or more)—a violation of pretrial release procedures is not automatically

prejudicial; the defendant must show prejudice. As applied, however, this standard does

not appear to require a greater showing by the defendant in per se impairment cases than

in cases in which the State is proceeding on an appreciable impairment theory. The court

of appeals in Knoll found that per se impairment cases are different because in such cases

the chemical analysis alone is sufficient to convict. 84 N.C. App. 228 (1987). The

supreme court agreed that the defendants had to show prejudice in a per se impairment

case and that it would not presume prejudice, as it had in its pre-Knoll decision in State v.

found that the loss of such evidence was prejudicial. This analysis is consistent with the

supreme court’s description of prejudice in Hill. 277 N.C. at 554 (“The evidence in this

case will support no conclusion other than that defendant was denied his constitutional

appreciable impairment theory. Prejudice in the Knoll context, as discussed above, means

defense.

deprives the defendant of the opportunity to obtain a range of evidence. The violation

generally does not result in improper evidence for the State; therefore, suppression

v. Hatley, 190 N.C. App. 639 (2008) (same); State v. Myers, 118 N.C. App. 452 (1995)

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sobriety tests conducted after arrest). Suppression of the particular procedure may be

insufficient, however, if the violation denied the defendant access to witnesses to rebut

other evidence by the State, such as observations by the authorities. See State v. Ferguson,

90 N.C. App. 513, 519 (1988) (in case in which defendant refused test because wife was

not present and State’s case rested solely on authorities’ personal observations, court

stated that dismissal would be required if evidence on remand showed that wife’s arrival

was timely and she made reasonable efforts to gain access to defendant).

governing procedures in impaired driving cases, adding among other things Article 2D,

on DWI holds. If the statutory requirements are followed, a Knoll violation is less likely

to occur, but if violations occur and the defendant is prejudiced, Knoll still would warrant

dismissal.

offense must have conditions of pretrial release determined, in accordance with G.S.

15A-534.” During the first 48 hours after arrest for certain domestic violence offenses,

however, only a judge may set conditions of pretrial release. G.S. 15A-534.1(a), (b).

Offenses subject to 48-hour law. The term “domestic violence” is used differently in

narrower than the definition of a “personal relationship” for the purpose of issuance of a

domestic violence protective order (DVPO) under G.S. Chapter 50B. For example, the

defendant is not subject to the 48-hour law where the relationship with the victim is that

of parent and child or grandparent and grandchild, although that relationship would be

sufficient for issuance of a DVPO. The 48-hour law covers a violation of a DVPO that

has already been issued, however, even though the “personal relationship” authorizing

issuance of the DVPO is one not covered by the 48-hour law. See G.S. 15A-534.1(a) (48-

hour provisions apply to a “violation of an order entered pursuant to Chapter 50B”). The

48-hour law also covers domestic criminal trespass, which by definition requires a

because same-sex couples are not eligible to marry under the laws of North Carolina. See

Joan G. Brannon, Domestic Violence Special Pretrial Release and Other Issues,

ADMINISTRATION OF JUSTICE BULLETIN No. 2001/06, at 5–6 (UNC School of Government,

Availability of judge. If the offense is covered by G.S. 15A-534.1, the question of

whether a defendant’s procedural due process rights have been violated will hinge

and (2) how long after that point the defendant was held without conditions. In

Thompson, the defendant was arrested on a Saturday at 3:45 p.m. and was not brought

before a judge until Monday at 3:45 p.m., even though judges were available to set

pretrial release conditions as of 9:00 a.m. on Monday. The Thompson court held: “The

failure to provide defendant with a bond hearing before a judge at the first opportunity on

Monday morning, and the continued detention of defendant well into the afternoon, was

unnecessary, unreasonable, and thus constitutionally impermissible . . . .” 349 N.C. at

500.

In assessing availability, the Thompson court took judicial notice of both district and

superior court sessions in the county and the start times of those sessions. Thus, as long