Magistrates walk a tight rope of sorts in setting conditions of pretrial release for defendants charged with impaired driving offenses. In addition to taking into account all of the factors they must consider when setting conditions of pretrial release in any criminal case and setting conditions accordingly, see G.S. 15A-534, magistrates who set conditions of release for a person charged with an impaired driving offense must consider whether the person is impaired to the extent that an impaired driving hold must be imposed, see G.S. 20-38.4(a)(3). A hold is required if the magistrate finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he or she is released, of physical injury to the defendant or others or damage to property. If an impaired driving hold is imposed, the defendant may not be released even if he or she satisfies other conditions of release by, for example, posting the amount of any secured bond. Instead, the defendant must be held until he or she is no longer impaired to the extent he or she poses a danger, or until a sober, responsible, adult appears who is willing and able to assume responsibility for the defendant until he or she is no longer impaired. G.S. 15A-534.2. Many magistrates want to impose such a hold in every case in which a defendant is charged with impaired driving. They worry that defendants allowed to leave without supervision may return to their cars and drive away, [...]
Faculty Coordinators
