S316 Pretrial Release/Rebuttable Presumption

Title: Pretrial Release/Rebuttable Presumption

Primary Sponsors: Floyd B. McKissick, Jr., Mike Woodard

Second Edition Text:  

A BILL TO BE ENTITLED

AN ACT to provide that a rebuttable presumption exists in certain circumstances that a person charged with a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm should not be released prior to trial.

The General Assembly of North Carolina enacts:

SECTION 1. G.S. 15A‑533 reads as rewritten:

“§ 15A‑533. Right to pretrial release in capital and noncapital cases.

(a) A defendant charged with any crime, whether capital or noncapital, who is alleged to have committed this crime while still residing in or subsequent to his escape or during an unauthorized absence from involuntary commitment in a mental health facility designated or licensed by the Department of Health and Human Services, and whose commitment is determined to be still valid by the judge or judicial officer authorized to determine pretrial release to be valid, has no right to pretrial release. In lieu of pretrial release, however, the individual shall be returned to the treatment facility in which he was residing at the time of the alleged crime or from which he escaped or absented himself for continuation of his treatment pending the additional proceedings on the criminal offense.

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

(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.

(d) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community if a judicial official finds the following:

(1) There is reasonable cause to believe that the person committed an offense involving trafficking in a controlled substance;

(2) The drug trafficking offense was committed while the person was on pretrial release for another offense; and

(3) The person has been previously convicted of a Class A through E felony or an offense involving trafficking in a controlled substance and not more than five years has elapsed since the date of conviction or the person’s release from prison for the offense, whichever is later.

(e) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official finds the following:

(1) There is reasonable cause to believe that the person committed an offense for the benefit of, at the direction of, or in association with, any criminal street gang, as defined in G.S. 14‑50.16;

(2) The offense described in subdivision (1) of this subsection was committed while the person was on pretrial release for another offense; and

(3) The person has been previously convicted of an offense described in G.S. 14‑50.16 through G.S. 14‑50.20, and not more than five years has elapsed since the date of conviction or the person’s release for the offense, whichever is later.

(f) There shall be a rebuttable presumption that no condition of release will reasonably assure the appearance of the person as required and the safety of the community, if a judicial official finds there is reasonable cause to believe that the person committed a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm; and the judicial official also finds any of the following:

(1) The offense was committed while the person was on pretrial release for another felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm.

(2) The person has previously been convicted of a felony or Class A1 misdemeanor offense involving the illegal use, possession, or discharge of a firearm and not more than five years have elapsed since the date of conviction or the person’s release for the offense, whichever is later.

(g) Persons who are considered for bond under the provisions of subsections (d) and (e) (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.”

SECTION 2. G.S. 15A‑534 reads as rewritten:

“§ 15A‑534. Procedure for determining conditions of pretrial release.

(d1) When conditions of pretrial release are being imposed on a defendant who has failed on one or more prior occasions to appear to answer one or more of the charges to which the conditions apply, the judicial official shall at a minimum impose the conditions of pretrial release that are recommended in any order for the arrest of the defendant that was issued for the defendant’s most recent failure to appear. If no conditions are recommended in that order for arrest, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least five hundred dollars ($500.00). one thousand dollars ($1,000). The judicial official shall also impose such restrictions on the travel, associations, conduct, or place of abode of the defendant as will assure that the defendant will not again fail to appear. The judicial official shall indicate on the release order that the defendant was arrested or surrendered after failing to appear as required under a prior release order. If the information available to the judicial official indicates that the defendant has failed on two or more prior occasions to appear to answer the charges, the judicial official shall indicate that fact on the release order.

(d3) When conditions of pretrial release are being determined for a defendant who is charged with an offense and the defendant is currently on pretrial release for a prior offense, the judicial official shall require the execution of a secured appearance bond in an amount at least double the amount of the most recent previous secured or unsecured bond for the charges or, if no bond has yet been required for the charges, in the amount of at least one thousand dollars ($1,000).

….”

SECTION 3. This act becomes effective December 1, 2013, and applies to proceedings to determine pretrial release conditions on or after that date.

My take: In this version, the Committe Substitute added a Section 2 which adds conditions for defendants who have skipped out on court appearances before.

In North Carolina, bail is a legal right. As long as you aren’t up on capital charges, you get bail. This bill says you don’t get bail if you’re up on Class A1 Misdemeanor or Felony charges including having illegal use, possession, or discharge of a firearm AND EITHER

  • You were already out on bail for another firearm charge, OR
  • You’ve already been convicted of a Class A1 Misdemeanor or Felony involving the illegal use, possession, or discharge of a firearm.

Sounds good. There have been plenty of people committing murders and attempted murders with guns while out on bail.

My recommendation: SUPPORT

To see all the proposed gun related bills in the NC General Assembly for the 2013-2014 session, Click HERE

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