GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1989

H	2 

HOUSE BILL 610
Second Edition Engrossed 4/25/89

Short Title:  Phone Subpoenas/Relieve Officers.	(Public)
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Sponsors: Representatives Balmer; Blue, Cromer, Diggs, Flaherty, L. Etheridge, Grimmer, Kerr, Isenhower, and Rhyne.
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Referred to:  Judiciary.
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March 15, 1989

A BILL TO BE ENTITLED
AN ACT TO ALLOW CIVILIANS TO SERVE SUBPOENAS BY TELEPHONE COMMUNICATION AND TO SERVE CRIMINAL SUMMONSES.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1A-1, Rule 45(e) reads as rewritten:
"(e)	Service. – All subpoenas may be served by the sheriff, by his deputy, by a coroner or by any other person not less than 18 years of age, who is not a party. Service of a subpoena for the production of documentary evidence may be made only by the delivery of a copy to the person named therein or by registered or certified mail, return receipt requested. Service of a subpoena for the attendance of a witness may be made by telephone communication with the person named therein only by an authorized server who shall be a sheriff, his designee who is not less than 18 years of age and not a party, or coroner, or by delivery of copy to the person named therein or by registered or certified mail, return receipt requested, by any person authorized by this section to serve subpoenas. Personal service shall be proved by return of a sheriff, his deputy, or a coroner making service and by return under oath of any other person making service. Service by telephone communication shall be proved by return of the authorized process server, noting the method of service. Service by registered or certified mail shall be proved by filing the return receipt with the return."
Sec. 2.  G.S. 8-59 reads as rewritten:
"§ 8-59. Issue and service of subpoena.
In obtaining the testimony of witnesses in causes pending in the trial divisions of the General Court of Justice, subpoenas shall be issued and served in the manner provided in Rule 45 of the Rules of Civil Procedure for civil actions. Provided that in criminal cases any employee of a local law-enforcement agency may effect service of a subpoena for the attendance of witnesses by telephone communication with the person named. However, in the case of a witness served by telephone communication pursuant to this section, neither an order to show cause nor an order for arrest shall be issued until such person has been served personally with the written subpoena."
Sec. 3.  G.S. 15A-301 reads as rewritten:
"§ 15A-301. Criminal process generally.
(a)	Formal Requirements. –
(1)	A record of each criminal process issued in the trial division of the General Court of Justice must be maintained in the office of the clerk.
(2)	Criminal process, other than a citation, must be signed and dated by the justice, judge, magistrate, or clerk who issues  it. The citation must be signed and dated by the law-enforcement officer who issues it.
(b)	To Whom Directed. – Warrants for arrest and orders for arrest must be directed to a particular officer, a class of officers,  or a combination thereof, having authority and territorial jurisdiction to execute the process. A criminal summons must be directed to the person summoned to appear and must be delivered to and may be served by any law-enforcement officer having authority and territorial jurisdiction to make an arrest for the offense charged, except that in those instances where the defendant is called into a law-enforcement agency to receive a summons, any employee so designated by the agency's chief executive officer may serve a criminal summons at the agency's office.  The citation must be directed to the person cited to appear.
(c)	Service. –
(1)	A law-enforcement officer or other employee designated as provided in subsection (b) receiving criminal process for service or execution must note thereon the date of its receipt. Upon execution or service, a copy of the process must be delivered to the person arrested or served.
(2)	A corporation may be served with criminal summons as provided in G.S. 15A-773.
(d)	Return. –
(1)	The officer or other employee designated as provided in subsection (b) who serves or executes criminal process   must enter the date of the service or execution on the process and return it to the clerk of court in the county in which issued.
(2) 	If criminal process is not served or executed within a number of days indicated below, it must be returned to the clerk of court in the county in which it was issued, with a reason for the failure of service or execution noted thereon.
a.	Warrant for arrest – 180 days.
b. 	Order for arrest – 180 days.
c. 	Criminal summons – 90 days or the date the defendant is directed to appear, whichever is earlier.
(3)	Failure to return the process to the clerk does not invalidate the process, nor does it invalidate service or execution made after the period specified in subdivision (2).
(4)	The clerk to which return is made may redeliver the process to a law-enforcement officer or other employee designated as provided in subsection (b) for further attempts at service. If the process is a criminal summons, he may reissue it only upon endorsement of a new designated time and date of appearance.
(e)	Copies to Be Made by Clerk. –
(1)	The clerk may make a certified copy of any criminal process filed in his office pursuant to subsection (a) when the original process has been lost or when the process has been returned pursuant to subdivision (d)(2). The copy may be executed as effectively as the original process whether or not the original has been redelivered as provided in G.S. 15A-301(d)(4).
(2)	When criminal process is returned to the clerk pursuant to subdivision (d)(1) and it appears that the appropriate venue is in another county, the clerk must make and retain a certified copy of the process and transmit the original process to the clerk in the appropriate county.
(3)	Upon request of a defendant, the clerk must make and furnish to him without charge one copy of every criminal process filed against him.
(4)	Nothing in this section prevents the making and retention of uncertified copies of process for information purposes under G.S. 15A-401(a)(2) or for any other lawful purpose.
(f)	Protection of Process Server. – An officer or other employee designated as provided in subsection (b), and serving process as provided in subsection (b), receiving criminal process which is complete and regular on its face may serve the process in accordance with its terms and need not inquire into its regularity or continued validity, nor does he incur criminal or civil liability for its due service."
Sec. 4.  This act shall become effective October 1, 1989.