The following article was authored by Shawndria McCoy, a Raleigh NC attorney. More information about Shawndria can be found on her LinkedIn profile. She can also be contacted at 919-307-5624.
Article 26 of the North Carolina General Statutes (NCGS), beginning at § 15A-531, establishes the provisions for pre-trial release in all North Carolina counties. Pre-trial release allows a defendant to remain in the community after committing a criminal offense and prior to having a trial or being convicted of the offense. There are certain requirements that a defendant must satisfy to be eligible for pre-trial release. This article provides general guidelines on pre-trial release and does not provide information on more specific applications of pre-trial release, such as to probation revocation, domestic, sex offenses, violent crimes against child victims, or drug trafficking cases.
Defendants entitled to pre-trial release
Any defendant charged with any crime who is housed in a mental health facility, has escaped from such facility, or during an unauthorized absence from mandatory commitment in a mental health facility is not entitled to pre-trial release. On the other hand, a defendant charged with a non-capital offense (an offense for which the death penalty may not be imposed) is required to have pre-trial release pursuant to NCGS §15A-534. For capital offenses (an offense where the death penalty could be imposed), the presiding Judge has discretion whether to allow the defendant to have pre-trial release.
The statute creates a rebuttable presumption that conditions of pre-trial release will not ensure the defendant’s appearance in court and that the community will not be protected if, while the defendant was out on pre-trial release, the defendant committed a drug trafficking offense, the offense was committed for the benefit of or in association with a criminal gang, or the defendant committed a felony or Class A1 misdemeanor involving illegal use, possession, or discharge of a firearm. NCGS §§ 15A-533 (d), (e), (f). This means that the defendant will have to overcome this presumption in order to be granted pre-trial release conditions.
Determining pre-trial release conditions
A district or superior court judge has discretion to determine when a person is entitled to pre-trial release and must consider several factors. If the judicial official determines the defendant is entitled to pre-trial release, he or she is required to impose at least one of the following conditions:
- Release the defendant on his own written promise to appear
- Release the defendant upon execution of an unsecured appearance bond in an amount determined by the judicial official
- Place the defendant in the custody of a designated person or organization for supervision
- Require execution of an appearance bond secured by a cash deposit of the full amount of the bond, by a mortgage pursuant to NCGS § 58-74-5, or by at least one solvent surety
- House arrest with electronic monitoring (for which a secured bond will be required)
If fingerprints are required to be taken pursuant to a statute and the defendant has not provided fingerprints, the judicial official may require the fingerprints to be taken as a condition of pre-trial release. Moreover, “the judicial official may also place restrictions on the travel, associations, conduct or place of abode of the defendant as a condition of release.” NCGS § 15A-534 (a). The judicial official may impose a condition that the defendant not consume alcohol and be subject to alcohol monitoring.
Pursuant to NCGS § 15A-534(b), the judicial official must impose one of the first three conditions listed above, unless he or she finds that the defendant’s’ appearance is not reasonably assured, the defendant’s release will present injury to any person, the defendant will likely destroy evidence, the defendant will attempt to persuade a person to commit perjury, or intimidate a potential witness. If the judicial official determines any of those situations are likely to occur, the judge may impose condition four (secured bond) or five (house arrest) above instead, and must make written findings stating the reasons for his determination.
Factors Considered When Making Pre-Trial Release Determinations
Judicial officials have some discretion when imposing pre-trial release. Their decisions are based on a number of pertinent factors relevant to the case, such as:
- The nature and circumstances of the offense
- The weight of the evidence against the defendant
- The defendant’s family ties, employment, financial resources, character, and mental condition
- Whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision
- The length of his residence in the community
- The defendant’s record of convictions
- The defendant’s history of flight to avoid prosecution or failure to appear at court proceedings
- Any other evidence relevant to the issue of pre-trial release
NCGS § 15A-534(c).
If the defendant violates any order or condition of pre-trial release or fails to appear for his court date, he or she can (and likely will) be arrested immediately and his secured or unsecured bond doubled. If the defendant is not under a bond, then a minimum bond of $1,000 must be imposed.
Pre-Trial Release When Defendant is Charged With A Felony
The same restrictions, determinations, and conditions aforementioned apply when a defendant is charged with a felony offense and he or she is currently on probation for a prior offense. However, if the judicial official is without sufficient information to make a determination as to the defendant’s likelihood of danger to the public, the defendant must remain in custody until such determination can be made. The judicial official must state in writing the additional information needed and the basis for such additional information and a date within 96 hours from the time of arrest for which the defendant must be given a first appearance, unless such information is obtained prior to expiration of the 96 hours. NCGS § 15A-534(d2).
*This article is meant to provide general statutory guidance on pre-trial release conditions. Refer to your specific district to determine if your district has additional or different requirements relevant to your specific case.
