112.1Pretrial Release

Eligibility for Pretrial Release Based on Offense

A person charged with a non-capital criminal offense usually has a right to pretrial release upon reasonable conditions. See G.S. 15A-533 (right to pretrial release in capital and non-capital cases); G.S. 15A-534 (procedure for determining release conditions); State v. Overton, 60 N.C. App. 1 (1982) (bail set by trial court in drug cases in the amount of one million dollars held not to be unreasonable or excessive); State v. Brooks, 38 N.C. App. 445 (1978) (“In determining the conditions of release or the propriety of revoking a defendant's bond, the trial court may consider not only the question of whether the defendant will appear for trial, but may also consider whether he will appear for trial in such mental and physical condition as to be able to proceed.”). The release conditions contemplated by statute are reflected in the applicable AOC forms. See AOC-CR-200 (Conditions of Release and Release Order), AOC-CR-201 (Appearance Bond for Pretrial Release); see also AOC-CR-238 (Appearance Bond for Release after Judgment in Superior Court).

The most notable exception to the general rule of eligibility for pretrial release is defendants charged with first-degree murder (a capital offense), who have no such right. See State v. Oliver, 302 N.C. 28 (1981) (trial court’s denial of defendant’s motion to set bond in first-degree murder case upheld, finding no abuse of discretion in denying bail). Nevertheless, a judge (not a magistrate or court clerk) is permitted, but not required, to order release in capital cases under G.S. 15A-533. Although G.S. 15A-533 makes pretrial release discretionary for “capital offenses,” that term has been defined to include all first-degree murder cases, whether or not defendant faces the death penalty. See State v. Sparks, 297 N.C. 314 (1979).

Effective October 1, 2023, the exception described above also applies to a number of additional offenses including armed robbery, rape, sexual offenses, human trafficking, kidnapping, and others. See G.S. 15A-533(b). For more information, see M. Jeanette Pitts, "North Carolina's New Pretrial Integrity Act," N.C. Criminal Law Blog, Aug. 23, 2023.

Finally, there are several classes of offenses for which pretrial release is not prohibited, but there is a rebuttable presumption against allowing pretrial release on the grounds that no release conditions will be adequate to reasonably assure the appearance of the person or the safety of the community. E.g., G.S. 15A-533 (presumption against pretrial release for some offenses involving drug trafficking, criminal street gangs, or use of a firearm); G.S. 15A-534.6 (presumption against pretrial release for offense involving manufacture of methamphetamine). For more information, see Section D, below.

Ineligibility for Pretrial Release Based on Defendant

In addition to defendants charged with first degree murder, other classes of defendants who are not entitled to pretrial release include:

1. Parole or post-release supervision violators. See G.S. 15A-1368.6, 15A-1376.
2. Person charged with a criminal offense while involuntarily committed or while on escape from commitment. See G.S. 15A-533(a).
3. A fugitive who is charged in another jurisdiction with an offense punishable by death or life imprisonment, any fugitive arrested on a Governor’s Warrant, or any fugitive who has waived extradition. See G.S. 15A-736; 50 N.C. Op. Atty. Gen. 40 (1980).
4. Out-of-state probation violators covered by Interstate Compact for Adult Offender Supervision. See G.S. 148-65.8(a).
5. Military deserters. See Huff v. Watson, 99 S.E. 307 (Ga. 1919).

Conditions of Pretrial Release

When considering the pretrial release of a defendant, and after reviewing the factors listed in G.S. 15A-534(c) and (g) (nature and circumstances of the offense, weight of state’s evidence, family ties, employment, resources, character, mental condition, intoxication, criminal history, and history of failure to appear) a judicial official as defined by G.S. 15A-101 (magistrate, clerk, judge or justice) must impose one of the following five conditions of release:

1. Written promise to appear;
2. Unsecured bond;
3. Custody supervision;
4. Secured bond; or
5. House arrest with electronic monitoring.

Additionally, if the defendant is required to provide fingerprints or a DNA sample and (1) they have not yet been taken, or (2) the defendant has refused to provide them, the judicial official must make their collection a condition of pretrial release.

The fourth and fifth conditions of pretrial release set out above may only be imposed if the judicial official determines that the other three conditions of pretrial release “will not reasonably assure the appearance of defendant, will pose a danger of injury to any person, or is likely to result in destruction of evidence, subornation of perjury or intimidation of potential witnesses.” G.S. 15A-534(b). The Official Commentary to G.S. 15A-534 states that defendant’s dangerousness and potential for harm should be considered in determining whether to require secured bond; but once it has been determined that a secured bond is required, then only the risk of defendant’s nonappearance should be considered in setting the amount and conditions of release for that bond. See State v. Jones, 295 N.C. 345 (1978) (“the primary purpose of an insurance bond is to insure the defendant’s presence at trial”).

If the defendant has previously failed to appear on the charge, the judicial official must, at a minimum, set any release conditions recommended in the arrest order, and set a bond that is double the amount of the prior bond, or at least $1000 if no prior bond was set. See G.S. 15A-534(d1). More information about the types of bonds permitted and general bond execution procedures can be found in G.S. 15A-531 (Definitions), 15A-537(b) (Persons authorized to effect release), 15A-541 (Persons prohibited from becoming surety), and 15A-542 (False qualification by surety). A bond is normally binding upon the obligor throughout all stages of the proceeding until entry of judgment in district court (if no appeal is taken) or entry of judgment in superior court, unless the bond is terminated earlier by: (1) release by the judge; (2) surrender of the defendant into custody by the surety; (3) voluntary dismissal of the charge by the state; (4) prayer for judgment continued indefinitely; or (5) defendant placed on probation under a deferred prosecution or conditional discharge agreement. See G.S. 15A-534(g).

Pretrial Release -- Requirements and Limitations for Specific Offenses

1. Domestic Violence Crimes, G.S. 15A-534.1
   G.S. 15A-534.1(b) provides that if a person is arrested for certain domestic violence crimes, only a judge may set conditions of pretrial release during the first 48 hours after the person’s arrest. If the judge has not done so during the first 48 hours, then a magistrate (or clerk) must set conditions of pretrial release. Unless a judge sets conditions of release, the person remains in jail for the first 48 hours. This requirement applies to the following types of cases: all cases in which the defendant is charged with assault, stalking, communicating a threat, or committing a felony under Articles 7B, 8, 10, or 15 of the general statutes upon a spouse, former spouse, person with whom the defendant lives (or has lived) as if married, or is (or has been) in a dating relationship, domestic criminal trespass, or violation of a domestic violence order under Chapter 50B.

The hearing before a judge should occur at the next available session of court. See State v. Thompson, 349 N.C. 483 (1998) (48-hour hold statute is not unconstitutional on its face, but defendant’s procedural due process rights were violated when he was arrested on Saturday afternoon and not brought before a judge until Monday afternoon, even though a judge was available Monday morning to set conditions of pretrial release); but see State v. Jenkins, 137 N.C. App. 367 (2000) (defendant not seen by judge to set bond until 1:30 p.m., even though court was also held for other matters at 9:30 a.m. – not a violation of constitutional rights to allow courts flexibility to operate in a rational, efficient manner and address different types of cases at different sessions); State v. Malette, 350 N.C. 52 (1999) (defendant’s procedural due process rights were not violated when he was arrested on Sunday and brought before a judge on Monday); see also State v. Clegg, 142 N.C. App. 35 (2001) (defendant was not brought to first available court session on initial misdemeanor charge, but dismissal of the subsequent felony charge was not warranted, as the defendant was not prejudiced by the violation).
In setting pretrial release conditions in domestic violence cases subject to the 48-hour law, the judge must direct a law enforcement officer or district attorney to provide a criminal history report for the defendant and the judge must consider the report. See G.S. 15A-534.1(a). After setting conditions the judge must return the report to the agency that provided the report; it is not placed in the case file. G.S. 15A-534.1(a) specifies that the judge may not “unreasonably delay” setting conditions for the purpose of reviewing the criminal history report. Unreasonable delay is not defined within the statute, but a delay of up to 12 hours or until a later session of court would probably not be deemed “unreasonable.” See State v. Gilbert, 139 N.C. App. 657 (2000); State v. Jenkins, 137 N.C. App. 367 (2000). The requirement to act without unreasonable delay also appears to apply to magistrates who set pretrial conditions under the 48-hour law, since G.S. 15A-534.1(b) states that if a judge has not acted within 48 hours of arrest, the magistrate must set conditions under the provisions of G.S. 15A-534.1.).

2. Offenses Involving Impaired Driving, G.S. 15A-534.2
   A special procedural rule applies to initial appearances for any "offense involving impaired driving" (which is defined by G.S. 20-4.01(24a) to include DWI, habitual DWI, murder or manslaughter based on impaired driving, and substantially similar offenses commited under prior versions of the law or the law of another jurisdiction), a judicial official setting conditions in such a case must consider whether the person is impaired to the extent that an impaired driving hold under G.S. 15A-534.2 should be imposed. G.S. 20-38.4. G.S. 15A-534.2 provides that if the judicial official finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if the defendant is released, of damage to property or physical injury to himself or herself or others, the judicial official must order that the defendant be held in custody. The defendant must be held until the first of the following conditions is met:

1. the defendant is no longer impaired to the extent that he presents a danger;
2. a sober and responsible adult appears who is willing to assume responsibility for the defendant until he is no longer impaired; or
3. 24 hours has elapsed.

The judicial official ordering the hold should complete side one of form AOC-CR-270. See State v. Knoll, 322 N.C. 535 (1988) (magistrate’s failure to permit pretrial release of defendants to responsible adults after arrest for DWI required dismissal of their cases; however, per se prejudice rule of State v. Hill, 277 N.C. 547 (1971) does not apply to statutory pretrial release violations in DWI arrests involving defendants whose alcohol concentrations are 0.10 (now, 0.08) or more); State v. Haas, 131 N.C. App. 113 (1998) (no irreparable prejudice when magistrate may have violated pretrial release provisions; setting of $500 secured bond was proper; finding that proposed person was not a sober, responsible adult was proper); see also State v. Ham, 105 N.C. App. 658 (1992) (one-hour delay in release did not require dismissal of DWI charge); State v. Bumgarner, 97 N.C. App. 567 (1990) (magistrate’s restriction on pretrial release was proper); State v. Eliason, 100 N.C. App. 313 (1990) (magistrate’s restriction on pretrial release was proper).

Finally, effective October 1, 2023, a 48-hour provision similar to the one described above for domestic violence offenses also applies to a defendant already on pretrial release who commits a specified Chapter 20 offense including impaired driving, habitual impaired driving, death by motor vehicle, and others. See G.S. 15A-533(h). For more information, see M. Jeanette Pitts, "North Carolina's New Pretrial Integrity Act," N.C. Criminal Law Blog, Aug. 23, 2023.

3. Communicable Diseases, G.S. 15A-534.3
   If a judicial official finds probable cause to believe that a person was exposed to the defendant in a manner that poses a significant risk of transmission of the AIDS virus or Hepatitis B, the judicial official must order the defendant to be detained up to 24 hours for investigation by public health officials and for testing if required by public health officials under G.S. 130A-144 and -148. The judicial official ordering the hold should complete side two of form AOC-CR-270. For more information, see the related entry on Communicable Diseases - Detaining and Testing Defendants.
4. Sex Offenses and Violent Crimes Against Children, G.S. 15A-534.4
   When a defendant is charged with child abuse (felony or misdemeanor), indecent liberties, rape, any other sex offense in violation of Article 7B, Chapter 14 against a minor, incest with a minor, kidnapping, abduction or felonious restraint of a minor, transporting a minor outside the state with intent to violate a custody order, assault against a minor, or communicating threats to a minor, a judicial official setting release conditions under G.S. 15A-534 for the defendant must impose the following three additional conditions:

1. Stay away from home/school/employment of victim;
2. Not communicate with victim, except as ordered by the judge;
3. Not assault, intimidate, stalk, threaten or harass the victim;

The additional release conditions required under (a) and (b) above can be waived, but only if the judicial official makes written findings of fact that it is not in the best interest of the victim to have the condition be imposed.

5. Public Health, G.S. 15A-534.5
   If a judicial official finds clear and convincing evidence that a person arrested for a violation of an order limiting freedom of movement or access under G.S. 130A-145 (quarantine and isolation) or G.S. 130A-475 (threat to public health resulting from a nuclear, biological or chemical attack) poses a threat to the health and safety of others, the judicial official shall deny release and order the person confined to an appropriate facility until the judicial official determines the person does not pose a threat; that determination shall only be made after the state or local health director has made recommendations to the court.
6. Manufacture of Methamphetamine, G.S. 15A-534.6
   When a defendant is charged with G.S. 90-95(b)(1a) (manufacturing methamphetamine) or 90-95(d1)(2)b (possession of precursor chemical knowing it will be used for manufacturing methamphetamine), the judicial official setting conditions of pretrial release must consider any evidence that the person is dependent on methamphetamine or has a pattern of regular illegal use of methamphetamine. If the state shows that a defendant is charged with one of the two specified offenses and also has a dependency or a pattern of regular, illegal use by clear and convincing evidence, it creates a rebuttable presumption that no conditions of release on bond will assure the safety of other persons and the community.
7. Drug Trafficking offenses, G.S. 15A-533(d)
   There is a rebuttable presumption that no conditions of release will reasonably assure the appearance of the defendant and the safety of the community if a judicial official finds the following three factors:

1. Reasonable cause to believe defendant committed an offense involving trafficking a controlled substance;
2. The offense was committed while the defendant was already on pretrial release for another offense; and
3. Defendant has previously been convicted of another A-E felony or drug trafficking offense, and was convicted or released from prison for that offense within the past five years.

A defendant considered for bond under this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance the defendant will appear, and that defendant’s release does not pose an unreasonable risk of harm to the community. G.S. 15A-534(g).

8. Gang-related Offenses, G.S. 15A-533(e)
   There is a rebuttable presumption that no conditions of release will reasonably assure the appearance of the defendant and the safety of the community if the judicial official finds all three of the following factors:

1. Reasonable cause to believe defendant committed an offense for the benefit of, at the direction of, or in association with any criminal street gang (defined in G.S. 14-50.16);
2. The offense was committed while the defendant was already on pretrial release for another offense; and
3. Defendant has previously been convicted of another gang-related offense (codified in G.S. 14-50.16 through 50.20), and was convicted or released from prison for that offense within the past five years.

A defendant considered for bond under this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance the defendant will appear, and that defendant’s release does not pose an unreasonable risk of harm to the community. G.S. 15A-534(g).

9. Firearm Offenses, G.S. 15A-533(f)
   There is a rebuttable presumption that no conditions of release will reasonably assure the appearance of the defendant and the safety of the community if the judicial official finds reasonable cause to believe the defendant committed a felony or Class A1 misdemeanor involving the illegal use, possession, or discharge of a firearm, and also finds "any of the following" factors:

1. The offense was committed while the defendant was already on pretrial release for another felony or Class A1 misdemeanor involving the illegal use, possession, or discharge of a firearm; or
2. Defendant has previously been convicted of another felony or Class A1 misdemeanor involving the illegal use, possession, or discharge of a firearm, and was convicted or released from prison for that offense within the past five years.

A defendant considered for bond under this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance the defendant will appear, and that defendant’s release does not pose an unreasonable risk of harm to the community. G.S. 15A-534(g).

10. Defendant Charged with Felony and Currently on Probation, G.S. 15A-534(d2)
    If a defendant who is already on probation for a prior offense is charged with a new felony, the judicial official must determine whether the defendant poses a danger to the public before imposing any pretrial release conditions, and must record that determination in writing. If the defendant does pose a danger, the judicial official must impose a secured bond or house arrest as a release condition; if the defendant does not pose a danger, the judicial official may impose conditions as normal. If there is insufficient information to determine whether or not the defendant poses a danger, he or she must be detained in custody (for up to 96 hours) until the date and time set for a first appearance, where that determination can be made – but if the necessary information becomes available prior to the date and time set for the first appearance, the defendant must be brought before first available judicial official to set conditions of release as otherwise provided in the statutes. See G.S. 15A-534(d2)(3).
11. Probationer Arrested for Probation Violation and Has Pending Felony Charge, or Has Been Convicted of Offense Requiring Sex Offender Registration, G.S. 15A-1345(b1)
    If a defendant is arrested for a probation violation and also has (i) a pending felony charge or (ii) a prior conviction that required registration as a sex offender (or would have so required but for the effective date of the creation of the registry) the judicial official must determine whether the defendant poses a danger to the public before imposing any pretrial release conditions, and must record that determination in writing. If the defendant does pose a danger, the defendant must be denied release pending the violation hearing. If the defendant does not pose a danger, the judicial official may impose release conditions as normal. If there is insufficient information to determine whether the defendant poses a danger, the defendant must be detained in custody for up to seven days to obtain sufficient information to make that determination. If the court does not have sufficient information after seven days, the defendant must be brought back before a judicial official who will record that fact in writing and then impose release conditions as otherwise provided in the statutes.

Audio and Video Transmission of Pretrial Release Hearing

G.S. 7A-49.6 broadly authorizes the use of audio and video transmission to conduct "all types" of court proceedings as long as the presiding judge and participants can see and hear each other, there is no objection made for good cause, the videoconferencing application used has been approved by the Administrative Office of the Courts, and the procedures "safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process," including preserving the defendant's right to confer confidentially with counsel and confront witnesses, if applicable. G.S. 7A-49.6 was established by S.L. 2017-47 (S.B. 255), effective June 18, 2021, which also repealed the provisions of G.S. 15A-532 that had previously limited the use of remote audio and video transmission to noncapital cases only.