State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.
Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.
Citation in Lieu of Arrest
Issuing a citation is not presumptive. However a citation can be issued for misdemeanors except for domestic violence offenses. Citations can be issued after arrest by law enforcement officers and responsible command officers. (§ 16-3-105)
Pretrial Release Eligibility
State constitution and statute provide a presumption of pretrial release. Pretrial release can be denied for capital offenses; violent crimes committed while on pretrial release for a violent crime if the defendant has a previous violent crime conviction, or two previous convictions for any felony; illegal possession of weapon due to criminal record; sexual assault; and sexual assault on a child. (Const. art. II § 19; §16-4-101)
Guidance for Setting Release Conditions
State statute provides a presumption of pretrial release on personal recognizance for class 3 misdemeanors and petty offenses. Law requires the least restrictive conditions be imposed. Courts are instructed to use a risk assessment when determining release of all defendants eligible for release. (§ 16-4-113; § 16-4-103)
Pretrial Release Conditions
Law allows release on personal recognizance. Common conditions of release include: commercial surety, cash deposit, property bond, other secured bond, supervision and additional requirements. Electronic monitoring is authorized for defendants supervised by a pretrial services program. A $10,000 bond is required for driving while intoxicated. A $50,000 bond is required for vehicular eluding while the driver is intoxicated and for distribution of a schedule I or II controlled substance. (§ 16-4-103; § 16-4-104; § 16-4-105)
Defendants charged with capital offenses, violent crimes if they have a prior violent crime conviction or two prior convictions for any felony, illegal possession of weapon due to criminal record, sexual assault or sexual assault on a child require a hearing to deny pretrial release. State law specifies time frames for when the hearing must be held. When a defendant is unable to meet the pretrial release conditions, a judicial review is required after seven days in custody and there are new factors for the court to consider. (§ 16-4-107; § 16-4-101)
Bail Bond Agent Licensure
The Division of Insurance regulates cash bonding agents, professional cash bail agents, and bail bond agents. (§ 10-23-101; § 10-23-102; § 10-2-415.5; § 10-2-418)
Bail Bond Agent Business Practices
The premium rate a bail agent can charge is the greater of $50 or 15 percent of the bond. (§ 10-23-109)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 14 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider if the defendant is detained elsewhere. Statute addresses standards for remission procedure. Unpaid forfeitures can result in suspension of the agent’s authority to execute new bonds. (§ 16-4-112)
Victims’ Rights and Protections
Victims have the right to notification of and to attend the pretrial release hearing. Victims also have a right to notification of pretrial release. (§24-4.1-302.5(b) & (c))
Diversion programs authorized include: veterans/active military problem solving courts and prostitution programs. Diversion is also authorized for offenses enumerated in §18-1.3-101. (§ 18-1.3-101; § 13-10-126; § 13-5-144)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.