Bail, Bonds and Custody NC

March 09, 2015

Calculating credit for “Pre-Trial Confinement” can be a complicated process. When the accused has either been unable to secure his or her release due to financial hardships or in a matter where “NO BOND” has been set by court officials, “crediting” that time against an imposed judgment becomes an important consideration. § 15A-533. Right to pretrial release in capital and noncapital cases states,

(b) A defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534.

As such, a “Capital Offense” is the only type of charge where “conditions of pretrial release” do NOT need to be determined. At the same time, (c) A judge may determine in his discretion whether a defendant charged with a capital offense may be released before trial. If he determines release is warranted, the judge must authorize release of the defendant in accordance with G.S. 15A-534

North Carolina General Statutes set forth the procedure(s) for setting bonds. NCGS 15A-534

There are certain types of offenses or fact scenarios associated with offenses, by statute, where there is a “rebuttable presumption” that bond and/or conditions of release are not appropriate. In a big picture perspective, the Courts seek to determine, in a very general sense:

1. Will the Accused Return to Court? AND
2. Will Releasing the Accused Present a Danger to the Community. . .and possibility Present a Danger to Him/Herself.

A “rebuttable presumption” is something the Judicial Official “presumes” to be correct or otherwise appropriate; but, the Defendant (and his attorney) may attack the presumption in an effort to secure a condition or combination of conditions for release that would ensure s/he returns to face the charges AND would not present a danger to the community.

In effect, the North Carolina General Assembly directs the Court, “There is a presumption you will do or not do something. But, the accused may try to convince you to proceed otherwise.” As such, it would be the duty or the burden of the Defendant to overcome the presumption. In essence, the Defendant says, “I know normally this is what is done. Let me tell you why I’m different.”
At the same time, the Legislature also cautions for certain offenses: “Persons who are considered for bond under the provisions of subsections (d), (e), and (f) of this section may only be released by a district or superior court judge upon a finding that there is a reasonable assurance that the person will appear and release does not pose an unreasonable risk of harm to the community.” Determining “reasonable assurances” and “unreasonable risk of harm” can pose quite a difficult conundrum.

For an example and more on this topic, click here. The purpose of this article by PowersMcCartan is to provide background information on setting bail and bonds in North Carolina. If you have additional questions, please feel free to call the firm directly at 704-342-4357.