Massachusetts Domestic Violence Arrest FAQs: The Six-Hour Hold, Bail, and No Contact Orders

Going home depends on two things, the six-hour rule and the conditions the bail commissioner or a judge imposes. Under G.L. c. 276, § 42A a person eighteen or older arrested for an act constituting abuse cannot be released on bail sooner than six hours after the arrest, unless a judge orders the release in open court. When release does come, the conditions must include restrictions on travel, association, or place of abode that prevent contact with the person alleged to have been abused. Where the two people share a home, that ordinarily means going somewhere else.

The bail commissioner or a judge may impose conditions to ensure both the defendant’s appearance in court and the safety of the alleged victim, any other individual, or the community. G.L. c. 276, § 42A requires that those conditions include reasonable restrictions on the defendant’s travel, association, or place of abode that prevent contact with the person abused. In practice that means a stay away and no contact condition, and often an order not to return to a shared residence. The statute also requires the bail commissioner or a judge to review the defendant’s record and the police reports first.

An officer can arrest without a warrant, and in some domestic violence situations the officer must. G.L. c. 209A, § 6(7) requires an officer to arrest a person the officer witnesses or has probable cause to believe has violated a vacate, restraining, or no contact order. Where no such order is in force, the same section makes arrest the preferred response where the officer has probable cause to believe the person committed a felony, a misdemeanor involving abuse, or an assault and battery under G.L. c. 265, § 13A.

The police book the arrested person, and the six-hour period under G.L. c. 276, § 42A begins. A bail commissioner is usually a court clerk who appears at the police station, hears a preliminary set of facts, and sets bail and conditions of release. A judge sitting in open court can order release on bail sooner. The arrested person must see a judge on the next business day for arraignment and review of the original bail and release orders. The arraignment is in the district court or the Boston Municipal Court, where the judge also addresses any request by the Commonwealth for a dangerousness hearing under G.L. c. 276, § 58A. The judge ordinarily imposes a stay away and no contact condition at arraignment.

A person eighteen or older arrested for an act constituting abuse is held at least six hours under G.L. c. 276, § 42A, unless a judge sitting in open court orders release on bail sooner. After six hours the bail commissioner or a judge can set bail with conditions and release the person. Where the Commonwealth moves for a dangerousness hearing under G.L. c. 276, § 58A, the judge can hold the person until that hearing, and can order detention after it.

G.L. c. 276, § 42A imposes the six-hour hold. A person who has attained the age of eighteen and is arrested for an act constituting abuse, for violating a protective order, or for a violation of G.L. c. 265, § 13M or § 15D “shall not be admitted to bail sooner than 6 hours after arrest, except by a judge in open court.” Counsel can ask a judge in open court to order release on bail before the six hours have run.

The judge orders no contact as a condition of release at arraignment, most often under G.L. c. 276, § 58. Before arraignment the bail commissioner or a judge can impose the same restriction under G.L. c. 276, § 42A, which requires conditions that prevent contact with the person alleged to have been abused. The order binds the defendant alone and stays in force until a judge changes it. The firm’s page on no contact orders in Massachusetts criminal cases covers modifying the condition and what the Commonwealth does after a violation.