The Law offices of Arnold & Smith - John Price Carr House
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Our office continues to operate during our regular business hours, which are 8:30 am - 5:30 pm, Monday through Friday, but you can call the office 24 hours a day. We continue to follow all recommendations and requirements of the State of Emergency Stay at Home Order. Consultations are available via telephone or by video conference. The safety of our clients and employees is of the utmost importance and, therefore, in-person meetings are not available at this time except for emergencies or absolutely essential legal services.

DWI Arrests and the Important Role of Magistrates

Once someone suspected of a DWI in Marvin, North Carolina has been arrested by local law enforcement, the law requires that he or she is taken “without unnecessary delay before a magistrate” judge. Under North Carolina law, a magistrate judge must do three things - inform the accused of the charges against him or her, inform the accused of his or her right to communicate with legal counsel and friends, and inform the accused of the general circumstances under which he or she can be released from custody.

Probable Cause

Of note, most DWI arrests in Marvin, North Carolina are made without a warrant. In other words, a magistrate judge is not involved in the case until after the accused is taken into custody by law enforcement. If an arrest happens without a warrant, then when the accused appears before a magistrate judge, the judge must determine whether probable cause exists to believe not only that a crime has been committed, but that the crime was committed by the person who was arrested. If the magistrate finds that the arresting officer did not have the required probable cause to take the accused into custody, then the suspect must be released. If the magistrate does, however, determine that the arresting officer had probable cause to make the arrest, the magistrate judge must issue an order that contains a statement of the crime for which the person is accused, or a finding that probable cause supported the arrest of the accused by the officer.

Pretrial Release

Once a magistrate judge finds probable cause supported the arrest, the accused must either be released after he or she makes a written promise to appear at a later court date or released upon the execution of an unsecured appearance bond. Additionally, the magistrate judge may place the accused in the custody of a designated person or an organization that agrees to supervise him or her - namely, a so-called “bondsperson”. Alternatively, a magistrate judge may require the execution of an appearance bond. This bond must be secured by a mortgage, a surety, or cash according to North Carolina law. In layman’s terms, a surety is basically a “cosigner.” Notably, a Marvin magistrate judge is only allowed by law to require a cash bond from someone held in custody if releasing the individual will not “reasonably assure” his or her court appearance or pose a danger of injury to another, likely result in the destruction of evidence, intimidation of a potential witness, or subornation of perjury.

Once a Marvin magistrate judge sets the parameters of an accused’s pretrial release, the law mandates that the judge must take into account the following:

  • The nature and circumstances of the offense charged;
  • The weight of the evidence against the accused;
  • The accused’s family ties;
  • The accused’s employment;
  • The accused’s financial resources;
  • The accused’s character;
  • The accused’s mental condition;
  • Whether or not the accused is intoxicated to the point that he or she would be endangered if released without supervision;
  • The length of the accused’s residence in the community;
  • The accused’s history of criminal convictions;
  • The accused’s history of failure to appear at court proceedings or flight to avoid prosecution; and
  • Any other evidence that is relevant to the issue of pretrial release.

When a North Carolina magistrate judge determines the conditions upon which an accused can be released, the judge must issue an order that contains a statement of the conditions imposed for pretrial release. Beyond this statement, North Carolina law requires that the magistrate judge must also inform the accused in writing of the penalties that could result from violating these pretrial release conditions, advise the accused that his or her arrest will be immediately ordered upon any violation of pretrial release conditions. The magistrate must also file the order with the clerk of court as well as provide a hard copy to the arrested individual.

If the person who is arrested in Marvin for DWI appears before the magistrate judge in such a state of impairment that he or she would pose a danger to him or herself or others if released, the magistrate is required to order the individual be held in custody until the danger is gone or until the accused is released to a responsible, sober adult. If the accused is held for 24 hours, the magistrate must immediately determine the appropriate pretrial release conditions for the accused.

The process North Carolina police officers must follow when arresting a person for DWI in Marvin is not negotiable. These critical processes must be followed at every stage, otherwise a DWI charge may be dismissed. If you or someone you know has been charged with a DWI in and thinks the arrest process was flawed so that it irreparably damaged your ability to defend against the charges, contact Arnold & Smith, PLLC today. Our team of aggressive criminal defense attorneys are in courtrooms across North Carolina fighting for the rights of people accused of DWI.