You may have heard that anyone arrested for domestic violence and abuse (DVA) in North Carolina will be automatically subjected to a 48-hour hold in jail before being granted bond – but that description is misleading and not what the law actually says.
Instead, the 48-hour rule generally means that only a district court judge – not a magistrate – can determine the conditions of pretrial release for certain DVA offenses within the first 48 hours after an arrest. The rule applies to certain offenses involving specified domestic relationships, including some cases involving assault, stalking, communicating threats and certain felonies. It also applies to domestic criminal trespass and violations of domestic violence protective orders.
Why someone may still spend significant time in custody
Magistrates are typically available to hear charges and set bonds around the clock. That helps keep the courts moving, the jails from overcrowding and suspects from spending unnecessary time in jail following an arrest. Judges are not.
In practical terms, that means that if someone is arrested at night or on a weekend, they may have to wait until the next available court session before they can appear before a judge. If no judge is available after the 48-hour period expires, then the law says that a magistrate may act.
In other words, the 48 hours function as a limit on how long a defendant may be held waiting for a judge to set pre-trial release terms, rather than as a mandatory minimum period of confinement.
Pre-trial release is not guaranteed for any defendant and is usually granted with restrictions. Both a judge and a magistrate must consider things such as a defendant’s criminal history and whether their release could pose a risk to the alleged victim or the public at large.
Understanding what comes next after an arrest for any form of domestic violence can help you navigate the judicial system a little more confidently. Working with a skilled criminal defense attorney offers the best option, however, for success.