§ 15A-534. Procedure for determining conditions of pretrial release. - North Carolina Statutes

§ 15A‑534.  Procedurefor determining conditions of pretrial release.

(a)        In determiningconditions of pretrial release a judicial official must impose at least one ofthe following conditions:

(1)        Release thedefendant on his written promise to appear.

(2)        Release thedefendant upon his execution of an unsecured appearance bond in an amountspecified by the judicial official.

(3)        Place the defendantin the custody of a designated person or organization agreeing to supervisehim.

(4)        Require theexecution of an appearance bond in a specified amount secured by a cash depositof the full amount of the bond, by a mortgage pursuant to G.S. 58‑74‑5,or by at least one solvent surety.

(5)        House arrest withelectronic monitoring.

If condition (5) is imposed, thedefendant must execute a secured appearance bond under subdivision (4) of thissubsection. If condition (3) is imposed, however, the defendant may elect toexecute an appearance bond under subdivision (4). The judicial official mayalso place restrictions on the travel, associations, conduct, or place of abodeof the defendant as conditions of pretrial release.

(b)        The judicialofficial in granting pretrial release must impose condition (1), (2), or (3) insubsection (a) above unless he determines that such release will not reasonablyassure the appearance of the defendant as required; will pose a danger ofinjury to any person; or is likely to result in destruction of evidence,subornation of perjury, or intimidation of potential witnesses. Upon making thedetermination, the judicial official must then impose condition (4) or (5) insubsection (a) above instead of condition (1), (2), or (3), and must record thereasons for so doing in writing to the extent provided in the policies orrequirements issued by the senior resident superior court judge pursuant toG.S. 15A‑535(a).

(c)        In determiningwhich conditions of release to impose, the judicial official must, on the basisof available information, take into account the nature and circumstances of theoffense charged; the weight of the evidence against the defendant; thedefendant's family ties, employment, financial resources, character, and mentalcondition; whether the defendant is intoxicated to such a degree that he wouldbe endangered by being released without supervision; the length of hisresidence in the community; his record of convictions; his history of flight toavoid prosecution or failure to appear at court proceedings; and any otherevidence relevant to the issue of pretrial release.

(d)        The judicialofficial authorizing pretrial release under this section must issue anappropriate order containing a statement of the conditions imposed, if any;inform the defendant in writing of the penalties applicable to violations ofthe conditions of his release; and advise him that his arrest will be orderedimmediately upon any violation. The order of release must be filed with theclerk and a copy given the defendant.

(d1)      When conditions ofpretrial release are being imposed on a defendant who has failed on one or moreprior occasions to appear to answer one or more of the charges to which theconditions apply, the judicial official shall at a minimum impose theconditions of pretrial release that are recommended in any order for the arrestof the defendant that was issued for the defendant's most recent failure toappear. If no conditions are recommended in that order for arrest, the judicialofficial shall require the execution of a secured appearance bond in an amountat least double the amount of the most recent previous secured or unsecuredbond for the charges or, if no bond has yet been required for the charges, inthe amount of at least five hundred dollars ($500.00). The judicial officialshall also impose such restrictions on the travel, associations, conduct, orplace of abode of the defendant as will assure that the defendant will notagain fail to appear. The judicial official shall indicate on the release orderthat the defendant was arrested or surrendered after failing to appear asrequired under a prior release order. If the information available to thejudicial official indicates that the defendant has failed on two or more prioroccasions to appear to answer the charges, the judicial official shall indicatethat fact on the release order.

(d2)      When conditions ofpretrial release are being determined for a defendant who is charged with afelony offense and the defendant is currently on probation for a prior offense,a judicial official shall determine whether the defendant poses a danger to thepublic prior to imposing conditions of pretrial release and must record thatdetermination in writing. This subsection shall apply to any judicial officialauthorized to determine or review the defendant's eligibility for release underany proceeding authorized by this Chapter.

(1)        If the judicialofficial determines that the defendant poses a danger to the public, thejudicial official must impose condition (4) or (5) in subsection (a) of thissection instead of condition (1), (2), or (3).

(2)        If the judicialofficial finds that the defendant does not pose a danger to the public, thenconditions of pretrial release shall be imposed as otherwise provided in thisArticle.

(3)        If there isinsufficient information to determine whether the defendant poses a danger tothe public, then the defendant shall be retained in custody until adetermination of pretrial release conditions is made pursuant to thissubdivision. The judicial official that orders that the defendant be retainedin custody shall set forth, in writing, the following at the time that theorder is entered:

a.         The defendant isbeing held pursuant to this subdivision.

b.         The basis for thejudicial official's decision that additional information is needed to determinewhether the defendant poses a danger to the public and the nature of thenecessary information.

c.         A date, within 96hours of the time of arrest, when the defendant shall be brought before a judgefor a first appearance pursuant to Article 29 of this Chapter. If the necessaryinformation is provided to the court at any time prior to the first appearance,the first available judicial official shall set the conditions of pretrialrelease. The judge who reviews the defendant's eligibility for release at thefirst appearance shall determine the conditions of pretrial release as providedin this Article.

(e)        A magistrate or aclerk may modify his pretrial release order at any time prior to the firstappearance before the district court judge. At or after such first appearance,except when the conditions of pretrial release have been reviewed by thesuperior court pursuant to G.S. 15A‑539, a district court judge maymodify a pretrial release order of the magistrate or clerk or any pretrialrelease order entered by him at any time prior to:

(1)        In a misdemeanorcase tried in the district court, the noting of an appeal; and

(2)        In a case in theoriginal trial jurisdiction of the superior court, the binding of the defendantover to superior court after the holding, or waiver, of a probable‑causehearing.

After a case is before thesuperior court, a superior court judge may modify the pretrial release order ofa magistrate, clerk, or district court judge, or any such order entered by him,at any time prior to the time set out in G.S. 15A‑536(a).

(f)         For good causeshown any judge may at any time revoke an order of pretrial release. Uponapplication of any defendant whose order of pretrial release has been revoked,the judge must set new conditions of pretrial release in accordance with thisArticle.

(g)        In imposingconditions of pretrial release and in modifying and revoking orders of releaseunder this section, the judicial official must take into account all evidenceavailable to him which he considers reliable and is not strictly bound by therules of evidence applicable to criminal trials.

(h)        A bail bond postedpursuant to this section is effective and binding upon the obligor throughoutall stages of the proceeding in the trial division of the General Court ofJustice until the entry of judgment in the district court from which no appealis taken or the entry of judgment in the superior court. The obligation of anobligor, however, is terminated at an earlier time if:

(1)        A judge authorizedto do so releases the obligor from his bond; or

(2)        The principal issurrendered by a surety in accordance with G.S. 15A‑540; or

(3)        The proceeding isterminated by voluntary dismissal by the State before forfeiture is orderedunder G.S. 15A‑544(b); or

(4)        Prayer for judgmenthas been continued indefinitely in the district court.  (1973, c. 1286, s. 1; 1975,c. 166, s. 13; 1977, 2nd Sess., c. 1134, s. 5; 1987, c. 481, s. 1; 1989, c.259; 2001‑487, s. 46.5(b); 2009‑412, s. 1; 2009‑547, ss. 3,4, 4.1.)