To Fight For Your Rights
Knoll Motion – Memorandum of Law
In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.North Carolina Constitution Article I, Section 23
The Sixth Amendment to the United States Constitution provides the right to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense. Article I, Section 23 of the North Carolina Constitution specifically protects every person criminally charged with the right to confront the witnesses against him with other testimony and to have counsel for defense. Article I, Section 27 sets forth the concept that “excessive bail shall not be required” so as to allow the accused reasonable opportunity to secure his release.
Such basic rights afforded to those accused of crimes are not limited to constitutional axiom. Codification of relevant constitutional protections herein is set forth in N.C.G.S. §15A-501(5) and §15A-511 which provide, in pertinent part, that police officers and magistrates “must without unnecessary delay inform the defendant of his right to communicate with counsel and friends.”
“The rights of communication go with the man into the jail and reasonable opportunity to exercise them must be afforded by the restraining authorities….. The denial of an opportunity to exercise a right is a denial of the right.” State v. Wheeler, 249 N.C. 187, 192-193 (1958) Knoll Motion – Memorandum of Law. Since Wheeler, the North Carolina Supreme Court and Court of Appeals have continued to review Sixth Amendment issues, including those involving allegations of implied consent offenses.
Like any criminal case, an individual charged with Driving While Impaired has the right to obtain witnesses and evidence in his favor, even if such evidence runs contrary to opinions expressed by law enforcement personnel or numerical blood / breath values.
Unlike many criminal charges, proof of impaired driving is fleeting at best. The alleged evidence of intoxication disappears, dissipates, or dematerializes over time. Subject to a host of individual forensic factors, the Courts are regularly called to flesh out what is or is not a critical period of time and whether the accused is “materially prejudiced” by the failure to follow North Carolina General Statutes.
Second, although United States & North Carolina constitutional protections have not changed, statutes pertaining to impaired driving offenses have been regularly amended by the North Carolina General Assembly. Indeed, the definition of the offense itself has changed over the years from Driving Under the Influence “DUI” to Driving While Impaired “DWI.”
Third, measuring impairment has changed with modifications to the North Carolina Administrative Code and the approval of different manufacturers, machinery and methodologies. In fact, the respective Court opinions addressing pre-trial issues have taken place across a span of time when the “legal limit” was reduced from .10 to .08. Approved breath testing devices have run the gambit from the “Smith & Wesson Breathalyzer 900 & 900A,” to the “CMI – Intoxilyzer 5000” through and including the present day “Intoximeter – EC/IR II.”
- North Carolina v. Hill, 277 N.C. 547 (1971)
North Carolina v. Hill, 277 N.C. 547 (1971) the defendant was “denied his constitutional and statutory right to communicate with both counsel and friends at a time when the denial deprived him of any opportunity to confront the State’s witnesses with other testimony.” Defendant had met the conditions of release; yet, he remained in custody without legitimate basis for delay or continued detention.
Hill the defendant was charged in Forsyth County, North Carolina with driving under the influence at 11:00 p.m. by a Winston-Salem Police Officer. Defendant was operating his Lincoln Continental on a four lane street in Winston-Salem without headlights. The vehicle was observed by a civilian witness, who testified the defendant’s vehicle was badly swerving in the roadway. The Defendant crashed into the witness, even though he had pulled over to the curb in hopes of avoiding a wreck. The Defendant later stated, “I don’t think I hit you, but if I did I am sorry.”
Police arrived shortly thereafter and began an investigation. The charging officer testified defendant had an odor of alcohol coming from his breath, slow speech, and a red face. The defendant also staggered. The officer formed an opinion the defendant was impaired by alcohol and arrested the defendant for driving while impaired. The defendant was then transported to the Forsyth County Jail.
Defendant was advised of his Miranda rights at the jail, waived those rights and agreed to speak with the officer. His answers to questions were both filmed and recorded. Video showing defendant’s responses to questioning was introduced at trial. Breathalyzer testing indicated a reading of between .23 and .24.
The defendant’s attorney testified that he received a call from the defendant shortly after midnight on the date of the offense. He stated he immediately went to the jail and arranged defendant’s bond. He further requested his client be released to him. The jailer refused to release the defendant citing a “four hour rule” as the basis for the continued period of incarceration. The jailer also refused to let the attorney see his client stating “the son of a bitch is so drunk he can’t stand up. You are not going to see him, git.” The defendant’s attorney ultimately left the jail. The Defendant was released from custody at approximately 7:00 a.m., some eight hours after having been arrested.
In holding the defendant had been denied his Sixth Amendment rights under the United States Constitution and the protections afforded pursuant to Article I § 23 of the North Carolina Constitution, the Court set forth a basic precept: prejudice is required. The Court reasoned “when one is taken into custody for an offense which intoxication is an essential element, time is of the essence. Intoxication does not last. Ordinarily a drunken man will ‘sleep it off’ in a few hours.”
The court recognized that if a defendant charged with driving while impaired is to have witnesses for his defense, he must have access to friends, family or counsel within a relatively short period of time after arrest. Employees of the jail and witness for the State were not viewed by the Court to be the type of disinterested witnesses that insured the defendant would be afforded his rights under Article I, §23 of the North Carolina Constitution.
The Court concluded the right to communicate with counsel and friends is “of no avail if those who come to the jail in response to a prisoner’s call are not permitted to see for themselves whether he is intoxicated……The right to communicate with counsel and friends implies, at the very least, the right to have them see him, observe and examine him, with reference to his alleged intoxication.”
Based on the reasoning in Hill the Court concluded the defendant had been denied his constitutional and statutory rights to communicate with counsel and friends at a time when the denial deprived him of any opportunity to confront the State’s witnesses with other testimony.
It further established the seminal language that is referred to in most inquiries involving pre-trial release for implied consent offenses in North Carolina:
“Under these circumstances, to say that the denial was not prejudicial is to assume that which is incapable of proof.”
- North Carolina v. Knoll, 322 N.C. 535 (1988)
In 1988 the Supreme Court consolidated three cases for hearing (Knoll, Warren, and Hicks) on the issue of whether certain constitutional and statutory rights had been denied to three defendants charged with driving while impaired. Specifically, in each of the three cases the defendants alleged they had been denied access to friends, family members or counsel because the magistrate and jail personnel refused to release the defendants despite each defendant’s ability to secure their own release.
In Knoll the defendant was arrested by Raleigh Police at 1:15 p.m. and taken to the Wake County jail. At the jail, the defendant submitted to a test of his breath. Test results indicated an alcohol concentration of .30. At the time, .10 was the standard in North Carolina.
At 5:00 p.m. the defendant was able to make a telephone call to his father. The magistrate informed defendant’s father a $300.00 bond had been set and that his son could not be released until 11:00p.m.
In Warren the defendant was arrested at 10:11p.m. by North Carolina State University (NCSU) campus police for driving while impaired. Defendant was transported to the Wake County Jail. Shortly after the defendant’s arrival at the jail, an NCSU professor and his son arrived at the jail to see the defendant and secure defendant’s release. The professor and his son were permitted to witness the intoxilyzer test. During the test officers permitted the witnesses to speak with the defendant and observe his condition. The defendant registered a .25 on the intoxilyzer. After witnessing the test, the professor attempted to secure defendant’s release; he was told the defendant would have to remain in custody until 6:00 a.m.
Defendant Hicks was arrested for driving while impaired by Knightdale Police at 12:45 a.m. and taken to the Wake County Jail. At the jail he was given an intoxilyzer test and registered a blood alcohol concentration of .18. At 1:30 a.m. defendant telephoned his wife, but she was unable to come to the jail because she did not have a vehicle. Defendant had on his person over $2000.00 in cash, but he was not permitted to post his own bond and remained in the jail until 6:00 a.m. that morning.
In Knoll the Supreme Court recognized the driving while impaired statute had changed since it’s ruling in Hill. The Knoll Court found the “per-se” prejudicial rule set forth in Hill no longer applicable, as N.C.G.S. § 20-138.1(a)(2) had been amended to add a provision in which the results of a chemical analysis was sufficient evidence to convict. . .as opposed to evidence of or an reasonable inference of impairment.
The language most often utilized distinguishing Hill from Knoll, therein arguing against dismissal was set forth by the Court: “Prejudice will not be assumed to accompany a violation of defendant’s statutory rights, but rather, defendant must make a showing that he was prejudiced in order to gain relief.”
In each of the three cases considered by the Knoll court, the court held each defendant had the ability to secure their own release and gather evidence on their own behalf by having friends and family members observe them and form opinions as to their condition following arrest.
The court reasoned the opportunity to gather evidence was lost because the defendants were denied access to friends and family members during the crucial period of time immediately following the arrest.
The Court did not consider interaction or observation in the intoxilyzer room sufficient contact to satisfy the statute or a defendant’s constitutional rights. The Court further did not draw a distinction regarding irreparable prejudice, even where the defendant in Hicks did not have a witness requesting contact with or waiting for Defendant’s release from jail.
Further, despite the change in the driving while impaired statute between 1971 and 1988 and the fact that each of the three defendants in Knoll submitted to samples of their breath, the court still found prejudice in each of three defendant’s ability to prepare a defense.
- North Carolina v. Rasmussen, 158 N.C. 544 (2003)
In Rasmussen the defendant attended a business dinner in Chapel Hill, North Carolina with his attorney Suzanne Markle. Defendant was subsequently involved an automobile accident on Interstate 40. Defendant called 911, as well as Ms. Markle, and requested she meet him at the scene of the wreck.
North Carolina State Highway Patrol Trooper Garner arrived on the scene shortly after 11:00 p.m. Trooper Garner spoke with the respective drivers, determined there were no injuries and asked both parties to sit in his patrol car for the purpose of taking statements and exchanging insurance information. A short time later Ms. Markle arrived on the scene and requested to speak with the defendant. Ms. Markle indicated she was not involved in and did not witness the accident. Trooper Garner directed Ms. Markle to step away from the vehicle.
Trooper Garner tested defendant with a roadside AlcoSensor device and ultimately placed Defendant under arrest for Driving While Impaired. Thereafter, Trooper Garner drove the Defendant to the City-County Bureau of Investigations (CCBI) in Raleigh for processing and breath testing.
Ms. Markle, having traveled to the CCBI, was allowed to enter the intoxilyzer room and witness the breath test. Defendant blew a .10. Ms. Markle informed the intoxilyzer operator the defendant would like to take an additional test. The intoxilyzer operator refused to give the defendant another test, advising Ms. Markle the defendant could get another test on his own time and at his own expense. Ms. Markle was then escorted out of the intoxilyzer room and waited for the defendant to be released. Defendant was released at 1:30 a.m. and left the CCBI with Ms. Markle.
The Court addressed several different issues in Rasmussen including the defendant’s motion to dismiss on the basis that he was denied the right to communicate with counsel, family and friends and thereby had prevented the chance to present exculpatory evidence and witnesses for his defense. The defendant argued citing Hill and Knoll that intoxication is an essential element and that time is of the essence in allowing the accused access to his friends and family. Defendant asserted witnesses were unable to make observations about his condition and possibly provide him with exculpatory evidence for use in his defense. The defendant in Rasmussen further argued he was denied the ability to present exculpatory evidence because Ms. Markle was not allowed to observe the field sobriety tests on the scene.
The Court, however, found defendant was not denied his right to communicate with family and friends because his attorney, Ms. Markle was in contact with him from the time she arrived at the accident scene around 11:35 p.m. until the time he was released from custody at 1:30 a.m.
Ms. Markle had, immediately prior to the accident, also eaten dinner with the defendant.
The defendant in Rasmussen was in police custody for just over two hours and he had had access to his attorney throughout the process. The court determined there was no basis for an argument that defendant’s constitutional rights were violated under the Sixth Amendment and Article I, §23 of the North Carolina Constitution.
- North Carolina v. Labinski, 188 N.C.App. 120 (2008)
Defendant Labinski was arrested at 1:55a.m. for Driving While Impaired by Officer Styron of the Greenville City Police Department. She was transported to the Pitt County Detention Center and submitted to breath testing on the Intoximeter EC/IR II. During transport to the jail,
Ms. Labinski was permitted use of her cell phone, whereby she “texted” friend Brian Anderson to let him know she was “in trouble.” Upon arriving at the jail, defendant was taken to the Intoximeter room, giving a breath sample at 3:01 a.m.
Four of defendant’s friends traveled to the jail, arriving at approximately 3:00a.m. Defendant was then taken before the magistrate, where she was informed of the basis for probable cause for the arrest and the conditions of release. The magistrate set a $500.00 secured bond and also imposed a condition that she be released to a sober responsible adult or when she had a blood alcohol concentration of .05. She was informed orally of the conditions of release and provided a copy of the conditions of release order.
Detention officers at the jail informed the defendant how she could obtain her release and explained how to use the telephones at the jail. Defendant was also placed in an interview room with a telephone that could be used to make free local telephone calls. A detention officer further explained to defendant how to use the phone, how to secure release using a bail bondsman. Defendant could not remember her friend’s telephone numbers, so a detention officer obtained her cell phone so she could retriever phone numbers to call friends and family members. Defendant called three of her friends who were already at the jail, the bond was posted using a bail bondsman and defendant was released at 5:02 a.m.
Counsel for Labinski argued defendant had been denied her constitutional right to access to witness on her own behalf because she was denied her statutory right to timely pretrial release. Specifically defendant contended that the magistrate ordered her to be detained without considering whether she was so intoxicated that she posed a danger to herself and others as required by N.C.G.S. §15A-534.2. She also contended that the magistrate required a secured bond without making the findings required by N.C.G.S §15A-534(C).
The defendant argued that the magistrate’s failure to grant timely release and access to friends and family members resulted in loss of evidence. Counsel argued such loss amounted to “substantial prejudice” in the ability to present a defense to the charged of driving while impaired.
The Court held the record contained no evidence to support a secured bond being placed on the defendant. Specifically the Court also found there was no evidence supporting a finding pursuant to N.C.G.S. 15A-534(b), that defendant would pose a danger of injury to any person if she were released under conditions other than a secured bond. Therefore the court held the magistrate had substantially violated the defendant’s statutory right to pretrial release.
The Court simultaneously found Defendant was not irreparably prejudiced by the magistrate’s failure to comply with statutory authority. The court reasoned the statutory violation had not caused the defendant to lose the opportunity to have her friends observe her mental and physical condition at a crucial time. The Defendant had four friends present at the jail, some of whom had contact with her prior to breath testing and had remained at the jail until defendant was released just after 5:00a.m.
Defendant had been confined in the jail for two hours and was released to her friends immediately after the bond was posted at 5:00a.m. The court held that there was neither a constitutional violation nor irreparable prejudice because defendant had four witnesses who would all be able to form their own opinion as to the Defendant’s impairment after she was released at 5:02 a.m.
- North Carolina v. Simmons, NO. COA09-862 (July 20, 2010)
Defendant James Edward Simmons was arrested and charged with driving while impaired in violation of N.C.G.S §20-138.1 and possession of an open container of alcohol in the passenger area of a motor vehicle, in violation of N.C.G.S §20-138.7.
The argument within Simmons focused on language within the driving while impaired statute, N.C. Gen. Stat. § 20-138.1, which provides:
A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State:
(1) While under the influence of an impairing substance; or
(2) After having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration….
In Simmons, the results of the chemical analysis admitted into evidence were prima facie evidence that Defendant’s alcohol concentration was .11. However, the results did not create a legal presumption, “that Defendant had, at any relevant time after the driving, an alcohol concentration of 0.08 or more.”
A true presumption exists where “proof of a basic fact permits or requires the fact finder to find a different, elemental, fact.” North Carolina v. Narron, 193 N.C. App. 76 (2008). N.C.G.S.§ 20-138.1 does not state that results of a chemical analysis shall be deemed sufficient evidence to prove a person’s degree of intoxication or his operation of a vehicle on a state highway. Instead, the statute “simply authorizes the jury to find that the report is what it purports to be-the results of a chemical analysis showing the defendant’s alcohol concentration.” The Court that to be the definition of prima facie evidence of an element of any criminal offense or civil cause of action-that the jury may find it adequate proof of a fact at issue.
Accordingly, although the results of the chemical analyses in the case were sufficient evidence from which the jury could have found that Defendant had an alcohol concentration of 0.11 and, thus, could have convicted Defendant of DWI under N.C. Gen. Stat. § 20-138.1 (a)(2), “the results did notcompel the jury to do so.” As such, there is no per se impairment recognized in North Carolina as a sole basis for conviction; rather, a jury may or may not infer impairment from the stated numerical value.
- Statutory Authority – Pretrial Release
(a) In determining conditions of pretrial release a judicial official must impose at least one of the following conditions:
(1) Release the defendant on his written promise to appear.
(2) Release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official.
(3) Place the defendant in the custody of a designated person or organization agreeing to supervise him.
(4) Require the execution of an appearance bond in a specified amount secured by a cash deposit of the full amount of the bond, by a mortgage pursuant to G.S. 58‑74‑5, or by at least one solvent surety.
(5) House arrest with electronic monitoring.
If condition (5) is imposed, the defendant must execute a secured appearance bond under subdivision (4) of this subsection. If condition (3) is imposed, however, the defendant may elect to execute an appearance bond under subdivision (4). If the defendant is required to provide fingerprints pursuant to G.S. 15A‑502(a1) or (a2), or a DNA sample pursuant to G.S. 15A‑266.3A or G.S. 15A‑266.4, and (i) the fingerprints or DNA sample have not yet been taken or (ii) the defendant has refused to provide the fingerprints or DNA sample, the judicial official shall make the collection of the fingerprints or DNA sample a condition of pretrial release. The judicial official may also place restrictions on the travel, associations, conduct, or place of abode of the defendant as conditions of pretrial release.
(b) The judicial official in granting pretrial release must impose condition (1), (2), or (3) in subsection (a) above unless he determines that such release will not reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses. Upon making the determination, the judicial official must then impose condition (4) or (5) in subsection (a) above instead of condition (1), (2), or (3), and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge pursuant to G.S. 15A‑535(a).
(c) In determining which conditions of release to impose, the judicial official must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant’s family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release.
(d) The judicial official authorizing pretrial release under this section must issue an appropriate order containing a statement of the conditions imposed, if any; inform the defendant in writing of the penalties applicable to violations of the conditions of his release; and advise him that his arrest will be ordered immediately upon any violation. The order of release must be filed with the clerk and a copy given the defendant.
(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). 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.
(d2) When conditions of pretrial release are being determined for a defendant who is charged with a felony offense and the defendant is currently on probation for a prior offense, a judicial official shall determine whether the defendant poses a danger to the public prior to imposing conditions of pretrial release and must record that determination in writing. This subsection shall apply to any judicial official authorized to determine or review the defendant’s eligibility for release under any proceeding authorized by this Chapter.
(1) If the judicial official determines that the defendant poses a danger to the public, the judicial official must impose condition (4) or (5) in subsection (a) of this section instead of condition (1), (2), or (3).
(2) If the judicial official finds that the defendant does not pose a danger to the public, then conditions of pretrial release shall be imposed as otherwise provided in this Article.
(3) If there is insufficient information to determine whether the defendant poses a danger to the public, then the defendant shall be retained in custody until a determination of pretrial release conditions is made pursuant to this subdivision. The judicial official that orders that the defendant be retained in custody shall set forth, in writing, the following at the time that the order is entered:
a. The defendant is being held pursuant to this subdivision.
b. The basis for the judicial official’s decision that additional information is needed to determine whether the defendant poses a danger to the public and the nature of the necessary information.
c. A date, within 96 hours of the time of arrest, when the defendant shall be brought before a judge for a first appearance pursuant to Article 29 of this Chapter. If the necessary information is provided to the court at any time prior to the first appearance, the first available judicial official shall set the conditions of pretrial release. The judge who reviews the defendant’s eligibility for release at the first appearance shall determine the conditions of pretrial release as provided in this Article.
(a) A judicial official conducting an initial appearance for an offense involving impaired driving, as defined in G.S. 20‑4.01(24a), must follow the procedure in G.S. 15A‑511 except as modified by this section. This section may not be interpreted to impede a defendant’s right to communicate with counsel and friends.
(b) If at the time of the initial appearance the judicial official finds by clear and convincing evidence that the impairment of the defendant’s physical or mental faculties presents a danger, if he is released, of physical injury to himself or others or damage to property, the judicial official must order that the defendant be held in custody and inform the defendant that he will be held in custody until one of the requirements of subsection (c) is met; provided, however, that the judicial official must at this time determine the appropriate conditions of pretrial release in accordance with G.S. 15A‑534.
(c) A defendant subject to detention under this section has the right to pretrial release under G.S. 15A‑534 when the judicial official determines either that:
(1) The defendant’s physical and mental faculties are no longer impaired to the extent that he presents a danger of physical injury to himself or others or of damage to property if he is released; or
(2) A sober, responsible adult is willing and able to assume responsibility for the defendant until his physical and mental faculties are no longer impaired. If the defendant is released to the custody of another, the judicial official may impose any other condition of pretrial release authorized by G.S. 15A‑534, including a requirement that the defendant execute a secured appearance bond.
The defendant may be denied pretrial release under this section for a period no longer than 24 hours, and after such detention may be released only upon meeting the conditions of pretrial release set in accordance with G.S. 15A‑534. If the defendant is detained for 24 hours, a judicial official must immediately determine the appropriate conditions of pretrial release in accordance with G.S. 15A‑534.
(d) In making his determination whether a defendant detained under this section remains impaired, the judicial official may request that the defendant submit to periodic tests to determine his alcohol concentration. Instruments acceptable for making preliminary breath tests under G.S. 20‑16.3 may be used for this purpose as well as instruments for making evidentiary chemical analyses. Unless there is evidence that the defendant is still impaired from a combination of alcohol and some other impairing substance or condition, a judicial official must determine that a defendant with an alcohol concentration less than 0.05 is no longer impaired. The results of any periodic test to determine alcohol concentration may not be introduced in evidence:
(1) Against the defendant by the State in any criminal, civil, or administrative proceeding arising out of an offense involving impaired driving; or
(2) For any purpose in any proceeding if the test was not performed by a method approved by the Commission for Public Health under G.S. 20‑139.1 and by a person licensed to administer the test by the Department of Health and Human Services.
The fact that a defendant refused to comply with a judicial official’s request that he submit to a chemical analysis may not be admitted into evidence in any criminal action, administrative proceeding, or a civil action to review a decision reached by an administrative agency in which the defendant is a party. (1983, c. 435, s. 4; 1997‑443, s. 11A.118(a); 2007‑182, s. 2.)
(a) Appearance before Magistrate. –
(1) A law‑enforcement officer making an arrest with or without a warrant must take the arrested person without unnecessary delay before a magistrate as provided in G.S. 15A‑501.
(2) The magistrate must proceed in accordance with this section, except in those cases in which he has the power to determine the matter pursuant to G.S. 7A‑273. In those cases, if the arrest has been without a warrant, the magistrate must prepare a magistrate’s order containing a statement of the crime with which the defendant is charged.
(3) If the defendant brought before a magistrate is so unruly as to disrupt and impede the proceedings, becomes unconscious, is grossly intoxicated, or is otherwise unable to understand the procedural rights afforded him by the initial appearance, upon order of the magistrate he may be confined or otherwise secured. If this is done, the magistrate’s order must provide for an initial appearance within a reasonable time so as to make certain that the defendant has an opportunity to exercise his rights under this Chapter.
(a1) A proceeding for initial appearance in a noncapital case under this section may be conducted by an audio and video transmission between the magistrate or other authorized judicial official and the defendant in which the parties can see and hear each other. If the defendant has counsel, the defendant shall be allowed to communicate fully and confidentially with his attorney during the proceeding. Prior to the use of audio and video transmission pursuant to this subsection, the procedures and type of equipment for audio and video transmission shall be submitted to the Administrative Office of the Courts by the senior regular resident superior court judge and the chief district court judge for a judicial district or set of districts and approved by the Administrative Office of the Courts.
(b) Statement by the Magistrate. – The magistrate must inform the defendant of:
(1) The charges against him;
(2) His right to communicate with counsel and friends; and
(3) The general circumstances under which he may secure release under the provisions of Article 26, Bail.
(c) Procedure When Arrest Is without Warrant; Magistrate’s Order. – If the person has been arrested, for a crime, without a warrant:
(1) The magistrate must determine whether there is probable cause to believe that a crime has been committed and that the person arrested committed it, and in the manner provided by G.S. 15A‑304(d).
(2) If the magistrate determines that there is no probable cause the person must be released.
(3) If the magistrate determines that there is probable cause, he must issue a magistrate’s order:
a. Containing a statement of the crime of which the person is accused in the same manner as is provided in G.S. 15A‑304(c) for a warrant for arrest, and
b. Containing a finding that the defendant has been arrested without a warrant and that there is probable cause for his detention.
(4) Following the issuance of the magistrate’s order, the magistrate must proceed in accordance with subsection (e) and must file the order with any supporting affidavits and records in the office of the clerk.
(d) Procedure When Arrest Is Pursuant to Warrant. – If the arrest is made pursuant to a warrant, the magistrate must proceed in accordance with subsection (e).
(e) Commitment or Bail. – If the person arrested is not released pursuant to subsection (c), the magistrate must release him in accordance with Article 26 of this Chapter, Bail, or commit him to an appropriate detention facility pursuant to G.S. 15A‑521 pending further proceedings in the case.
(f) Powers Not Limited to Magistrate. – Any judge, justice, or clerk of the General Court of Justice may also conduct an initial appearance as provided in this section.