Restraining Orders - Criminal Charges - Terms of Release (Bond)
One extremely common situation that makes its way into court is when one person wants to be left alone, and yet another person refuses to oblige their request. It can happen in many contexts: one party breaks up with another party but the other is not ready for the relationship to be over, and victims of crimes wanting nothing to do with the defendant charged with criminal conduct (or need protection for their own safety), for example. The Legislature of North Carolina has provided multiple avenues by which to allow a party to seek the court’s protection, and a few of those will be further discussed in this article. It is important to note that some of these are civil methods of relief that can also have criminal impacts, and as such having an experienced attorney on your side can help curtail significant detrimental impacts on you.
The first question that must be answered with regards to what method of relief you should seek is what type of case is it: a civil or a criminal case.Terms of Release in Criminal Matters (“Bond”)
If you are the victim of a crime serious enough for a person to be arrested, before they can be released from custody a Judge must determine the terms of their release (also known as their bond conditions). According to North Carolina Gen. Stat. § 15A-534, there are several different types of bonds and several different factors the Judge must consider in determining what conditions to set:
- Written Promise to Appear (which requires no security to be posted);
- Unsecured Bond (which only requires a portion of the full amount to be posted before the defendant may be released);
- Custody Release (which requires the defendant stay supervised by the designated person);
- Secured Bond (which requires the full portion to be posted before the defendant may be released, and is often accomplished by use of cash, a bail bondsmen, or putting up ones house);
- House Arrest with Electronic Monitoring.
The statute dictates that a Judge must give one of the first three (3) bonds unless it is determined that the conditioned bond will not: 1. “reasonably assure” the defendant’s appearance, 2. that if released the defendant poses a danger, or 3. that upon release the defendant would act in such a manner that would curtail prosecution of the case (either by destroying evidence, intimidating witnesses, or persuade someone to commit perjury). There are also a litany of factors the judge is to consider in determining additional, specific conditions to impose on the bond: the type of charge, the evidence that points to the defendant’s culpability (or lack of culpability), their ties to the community (both in terms of family and in terms of employment), their ability to pay, whether they are currently under the influence of an intoxicating or impairing substance, their criminal history (including whether they have been convicted of failing to appear or if they have a history of fleeing so as to not be prosecuted), and “any other evidence relevant” to the matter. The wide latitude given Judges allows them to fit the terms of release on the specific person and the specific case, and as such gives the court unusual flexibility.
One of the most common “bond conditions” is for the defendant to not have contact with the victim, the accuser, or any possible witnesses who they may otherwise have contact with. As such, any violation of any of the conditions the Judge sets forth opens the defendant up for the possibility of being remanded to the custody of the State, and held until the time their case is disposed of (whether by trial, dismissal, or plea). The threat of being put in jail in a lot of cases is enough to ensure that the person is left alone. But the question arises as to what happens after the criminal matter is disposed of? Is the victim protected then? The answer, of course, is it depends.
If the case is dismissed without any conditions imposed (dismissal without leave) the terms of the bond are gone, and the defendant can thereafter have unfettered contact with anyone (unless, of course, there exists a 50B, a 50C or a Rule 65 Injunction). In some jurisdictions, cases can be “conditionally dismissed,” and in this situation a common condition is no contact with a specific person; these cases, which are dismissed “with leave” allow the State to refile the charges if the defendant violates the condition. It is the possibility of having the criminal charges refiled that gives the defendant the incentive to comply with the conditions.
If the case is resolved, whether by plea or trial, and the defendant is convicted of a crime, they may receive probation (as opposed to an “active sentence”). Probation can be either supervised or unsupervised, and as a condition of probation no contact with specific people (as well as restricting locations the defendant may lawfully be) can be imposed. Probation is the way by which a defendant is allowed to “prove themselves” outside of custody; if they violate any of the conditions imposed, they run the risk of having their “suspended sentence” imposed. The possibility of having their probation “revoked” and their suspended sentence “activated” is what incentivizes the defendant to comply with the conditions. However, after their probation ends (and without other remedies in play) they once again are able to have contact with the victim.
The attorneys at Arnold & Smith, PLLC are professionals who are qualified and experienced in enforcing, and defending against all forms of restraining orders. For help with this or any other family law or criminal matters contact us now or please call (704) 370-2828.Related Articles: