In order to ensure that the constitutional rights of Defendants who have been charged with domestic violence crimes are protected, and pursuant to State v. Thompson
the following procedures shall be implemented.
This policy shall only apply to those Defendants who fall under the release procedures outlined in N.C.G.S. § 15A-534.1 which provides that in a case where a Defendant is charged with assault on or communicating a threat to a spouse or former spouse or a person with whom Defendant lives or has lived as if married, with domestic criminal trespass, or with a violation of a 50(B), only a Judge may set bond and pre-tried release conditions within the first 48 hours after arrest. This provision shall be referred to herein as the "48 hour rule."
Thus, this policy does NOT apply to persons who have been charged with assaulting or threatening anyone other than a spouse, a former spouse, or a person of the opposite sex with whom they live or have live as if married UNLESS there is a 50(B) in effect between the same parties. Those Defendants would have bond and pre-trial release conditions set by the magistrate when they are arrested and brought before the magistrate. (For example, a son who assaults his mother does NOT fall under the "48 hour rule" unless the mother already had a 50(B) against the son and the magistrate should set bond and release conditions for that Defendant).
For those Defendants who do fall under the "48 hour rule," the following procedure shall apply:
If a Defendant is arrested after 5:00 p.m. or on a weekend or a holiday, the Defendant shall be arrested and taken before the magistrate. The magistrate shall commit the Defendant to the Orange County jail until such time that he or she can be brought before a Judge or until 48 hours have expired.
If a Judge has not set release conditions before the Defendant has been held for 48 hours, the Defendant shall then he brought before the magistrate to have bond and pre-trial release conditions set.
Each business day morning at 9:00 a.m., or as soon as it is practical, the presiding District Court Judge shall request that those Defendants being held pursuant to the "48 hour rule" be brought from the jail to the courthouse and shall then determine bond and pre-trial release conditions. If there is no District Court Judge in Hillsborough, the Sheriff's Department, with help from the Judge's staff and the clerks of court, shall bring the Defendant before the Judge presiding in Chapel Hill.
If a District Court Judge is not available in Orange County, then the Sheriff's Department shall make inquiry of any Superior Court Judge who is holding court in Orange County for permission to bring the Defendant before the presiding Superior Court Judge. If the Superior Court Judge refuses to set a bond, then the Sheriff's Department shall be under no further obligation to find a Judge in order to set bond until the next business day.
If the Judge determines that a Defendant should be held without bond past the time that the Defendant has appeared in court, then the Judge shall note on the release form that the Judge has made a specific determination that the Defendant is ordered held without bond for the requisite period of time and should note at what time Defendant should be released and what the pre-trial release conditions will be upon the Defendant's release.
If a Judge has not acted within 48 hours, the magistrate shall determine the bond and pre-trial release conditions.
If a Defendant is arrested on a weekday between the hours of 8:00 a.m. and 5:00 p.m., the Defendant shall be taken to the magistrate's office by the arresting officer.
Upon determining that the Defendant falls under the "48 hour rule," the magistrate shall deal with the Warrant or Magistrate's Order and provide a release form. The magistrate shall then determine if and where a Judge is available and shall call that courtroom to determine whether the Defendant may be brought over immediately for the Judge to set bond and pre-trial release conditions.
If the magistrate is unable to locate a Judge before whom the Defendant may be immediately brought, then the magistrate shall note on the release form when the Judge is available, and when the Defendant shall be brought before that Judge. While it is preferable for the magistrate to attempt to locate the District Court Judge who is presiding over criminal court, the magistrate may also call any District Court Judge who may be available in Orange County or the Superior Court Judge.
If the magistrate determines that the Defendant should be taken immediately before the Judge, then the magistrate shall direct the arresting officer to do so and shall provide the arresting officer with the warrant and the release form, as well as the domestic violence form which was written by the magistrate at the time the Warrant or Magistrate's Order was written.
If the Defendant is to be brought before the Judge without being processed through the jail, the officer who has arrested the Defendant shall use normal booking procedures and shall ensure that the Defendant is not in possession of a weapon or property which may pose a risk to the Defendant themselves, the officer, or anyone else.
If the magistrate determines that it is not practicable for the Defendant to be taken before the Judge at that time, the magistrate shall note on the release order when the Defendant shall be taken before the Judge and the arresting officer shall take the Defendant to the Orange County jail. The Sheriff s Office shall then take the Defendant before the Judge as soon as the Judge is available.
If the Judge determines that the Defendant should not be physically brought before the Judge, either because the Defendant is ill or poses safety issues if transported, the Judge, in his or her discretion, may instead go to the jail and set bond and pre-trial release conditions at the jail.
Magistrates shall, when writing warrants where the Defendants fall under the "48 hour rule," fill out a domestic violence form and attach a copy of this form to the original copy of the warrant. In cases where such a Defendant is arrested without a warrant, magistrates shall complete a Magistrate's Order, fill out a domestic violence form and attach a copy of this form to the court copy of the release form. When Defendants are brought before the Judge, whether they are brought immediately before the Judge or whether they are brought later, the Judge shall be presented with the original warrant or Magistrate's Order, the release form, and the domestic violence form.
If it is determined that the arresting officer will not be the law enforcement official who will be bringing the Defendant before the Judge, then the arresting officer should provide the magistrate with any information that he or she may have about the Defendant's possible flight risk, the Defendant's possible threats of safety to the victim, and any other information that will be helpful in determining bond and the conditions of release so that the magistrate will note this on the domestic violence reports and the information will be forwarded to the Judge.