Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)

 

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