§ 15A-1345. Arrest and hearing on probation violation.
§ 15A‑1345. Arrest andhearing on probation violation.
(a) Arrest forViolation of Probation. A probationer is subject to arrest for violation ofconditions of probation by a law‑enforcement officer or probation officerupon either an order for arrest issued by the court or upon the written requestof a probation officer, accompanied by a written statement signed by theprobation officer that the probationer has violated specified conditions of hisprobation. However, a probation revocation hearing under subsection (e) may beheld without first arresting the probationer.
(b) Bail FollowingArrest for Probation Violation. If at any time during the period of probationthe probationer is arrested for a violation of any of the conditions ofprobation, he must be taken without unnecessary delay before a judicialofficial to have conditions of release pending a revocation hearing set in thesame manner as provided in G.S. 15A‑534.
(b1) If the probationeris arrested for a violation of any of the conditions of probation and (i) has apending charge for a felony offense or (ii) has been convicted of an offense atany time that requires registration under Article 27A of Chapter 14 of theGeneral Statutes or an offense that would have required registration but for theeffective date of the law establishing the Sex Offender and Public ProtectionRegistration Program, the judicial official shall determine whether theprobationer poses a danger to the public prior to imposing conditions ofrelease and must record that determination in writing.
(1) If the judicialofficial determines that the probationer poses a danger to the public, theprobationer shall be denied release pending a revocation hearing.
(2) If the judicialofficial finds that the defendant does not pose a danger to the public, thenconditions of release shall be imposed as otherwise provided in Article 26 ofthis Chapter.
(3) If there isinsufficient information to determine whether the defendant poses a danger tothe public, then the defendant shall be retained in custody for not more thanseven days from the date of the arrest in order for the judicial official, or asubsequent reviewing judicial official, to obtain sufficient information todetermine whether the defendant poses a danger to the public.
(4) If the defendant hasbeen held seven days from the date of arrest pursuant to subdivision (3) ofthis subsection, and the court has been unable to obtain sufficient informationto determine whether the defendant poses a danger to the public, then the defendantshall be brought before any judicial official, who shall record that fact inwriting and shall impose conditions of pretrial release as otherwise providedin this section.
(c) When PreliminaryHearing on Probation Violation Required. Unless the hearing required bysubsection (e) is first held or the probationer waives the hearing, apreliminary hearing on probation violation must be held within seven workingdays of an arrest of a probationer to determine whether there is probable causeto believe that he violated a condition of probation. Otherwise, theprobationer must be released seven working days after his arrest to continue onprobation pending a hearing, unless the probationer has been denied releasepursuant to subdivision (1) of subsection (b1) of this section, in which casethe probationer shall be held until the revocation hearing date.
(d) Procedure forPreliminary Hearing on Probation Violation. The preliminary hearing onprobation violation must be conducted by a judge who is sitting in the countywhere the probationer was arrested or where the alleged violation occurred. Ifno judge is sitting in the county where the hearing would otherwise be held,the hearing may be held anywhere in the district court district as defined inG.S. 7A‑133 or superior court district or set of districts as defined inG.S. 7A‑41.1, as the case may be. The State must give the probationernotice of the hearing and its purpose, including a statement of the violationsalleged. At the hearing the probationer may appear and speak in his own behalf,may present relevant information, and may, on request, personally questionadverse informants unless the court finds good cause for not allowingconfrontation. Formal rules of evidence do not apply at the hearing. If probablecause is found or if the probable cause hearing is waived, the probationer maybe held for a revocation hearing, subject to release under the provisions ofsubsection (b). If the hearing is held and probable cause is not found, theprobationer must be released to continue on probation.
(e) Revocation Hearing. Before revoking or extending probation, the court must, unless theprobationer waives the hearing, hold a hearing to determine whether to revokeor extend probation and must make findings to support the decision and asummary record of the proceedings. The State must give the probationer noticeof the hearing and its purpose, including a statement of the violationsalleged. The notice, unless waived by the probationer, must be given at least 24hours before the hearing. At the hearing, evidence against the probationer mustbe disclosed to him, and the probationer may appear and speak in his ownbehalf, may present relevant information, and may confront and cross‑examineadverse witnesses unless the court finds good cause for not allowingconfrontation. The probationer is entitled to be represented by counsel at thehearing and, if indigent, to have counsel appointed. Formal rules of evidencedo not apply at the hearing, but the record or recollection of evidence ortestimony introduced at the preliminary hearing on probation violation areinadmissible as evidence at the revocation hearing. When the violation allegedis the nonpayment of fine or costs, the issues and procedures at the hearing includethose specified in G.S. 15A‑1364 for response to nonpayment of fine. (1977, c. 711, s. 1; 1977,2nd Sess., c. 1147, ss. 12, 13; 1979, c. 749, s. 4; 1979, 2nd Sess., c. 1316,s. 39; 1987 (Reg. Sess., 1988), c. 1037, s. 69; 2008‑117, s. 19; 2009‑412,s. 2.)