Under G.S. 15A-534.1, when a defendant is charged with assault, stalking, communicating threats, or certain other crimes against "a spouse or former spouse or a person with whom the defendant lives or has lived as if married," a judge, rather than a magistrate, must set the defendant's bond. The same rule applies when a defendant is charged with domestic criminal trespass or with violating a domestic violence protective order. If, after 48 hours, a judge hasn't yet set the defendant's bond, a magistrate acquires the power to set the bond. For example, if a defendant is arrested on Friday night, normally no judge will be available until Monday. Therefore, on Sunday night, after 48 hours have elapsed, a magistrate should set a bond for the defendant. The constitutionality of the statute was generally upheld in State v. Thompson, 349 N.C. 483 (1998), which concluded that the statute was regulatory, rather than punitive, and "serves the General Assembly's legitimate interest in ensuring that a judge, rather than a magistrate, consider[s] the terms of a domestic-violence offender's pretrial release." Note that the purpose of the 48 hour rule is not to allow the defendant to cool down. Id. If the defendant needs to cool down, the judge may detain the defendant for a "reasonable period of time," with proper findings, to allow for that. G.S. 15A-543.1(a)(1). But that period of time transpires after the bond hearing, not before. There are a few recurrent issues that arise with respect to the 48 hour rule. [...]
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