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 1st or 2nd degree misdemeanors. Citations can be issued after arrest by law enforcement officers. (§ 901.28 superseded by R. Cr. P. 3.125)
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses; offenses punishable by life; when the defendant has threatened, intimidated or injured a victim, witness, juror or judicial officer; trafficking controlled substances; driving under the influence manslaughter and has a previous conviction for driving under the influence manslaughter, driving with a suspended license or was previously convicted for driving with a suspended license; dangerous offenses; any offense while on pretrial release for a dangerous offense; and manufacturing a controlled substance. (Const. art. 1 § 14; §907.041(4))
Guidance for Setting Release Conditions
State statute provides a presumption of pretrial release on non-monetary conditions. Law requires the least restrictive conditions be imposed. (§ 907.041(3); § 907.041(2) authorizes R. Cr. P. 3.131)
Pretrial Release Conditions
Law allows release on recognizance bond. Common conditions of release include: commercial surety, cash deposit, property bond, supervision and additional requirements. A $2,000 bond or twice the value of the original bond amount is required for failure to appear when on pretrial release. (§ 903.047; § 907.041; § 903.105)
Defendants charged with capital offenses or offenses punishable by life; dangerous offenses; trafficking or manufacturing controlled substances; driving under the influence manslaughter and has a prior conviction for driving under the influence manslaughter, was driving with a suspended license, or was previously convicted for driving with a suspended license; or if the defendant has threatened, intimidated or injured a victim, witness, juror or judicial officer, require a hearing to deny pretrial release. State law specifies time frames for when the hearing must be held, addresses detainment of the defendant pending the outcome of the hearing and enumerates rights of the defendant. (§ 907.041)
Bail Bond Agent Licensure
The Department of Financial Services regulates bail bond agents and professional bail bond agents, as well as temporary, limited licenses as a limited surety agent or professional bail bond agent. To be a licensed bail bond agent or obtain the temporary and limited license, the applicant must meet age and residency requirements, and pass a criminal background check. Applicants seeking to become a bail bond agent must also pass an exam and meet continuing education requirements. Applicants seeking the temporary license must meet prelicense education requirements. Crimes that can cause either license to be denied or revoked include all felonies, crimes involving moral turpitude and crimes punishable by imprisonment of one year or more. (§ 648.27; § 648.34; § 648.35; § 648.355)
Bail Bond Agent Business Practices
Bail bond agents are prohibited from soliciting business any place prisoners are confined or in any court. They cannot offer legal advice or recommend an attorney. Advertisements in jails are limited to a telephone directory listing and postings of the bail bond agent’s or agency’s contact information in a designated location. Bail bond agencies cannot advertise as a bail bond or surety company and must follow requirements and prohibitions against false or deceptive advertising enumerated in § 648.44. (§ 648.33; § 648.44)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 60 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to insanity, confinement in an institution or hospital, or detention elsewhere. Statute addresses standards for remission process. Unpaid forfeitures can result in suspension of the agent’s authority to execute new bonds. (§ 903.26; § 903.28; § 648.45)
Victims’ Rights and Protections
Victims have the right to notification of, be consulted and attend the pretrial release hearing. They also have the right to notification of pretrial release. Pretrial release hearings are required for domestic violence offenses and offenses related to criminal gangs. Electronic monitoring can be ordered for dangerous offenses as enumerated in § 907.041(4). (§ 960.001(b), (e) & (g); § 941.2901(3); § 903.046(I); § 907.041)
Diversion programs authorized include: substance abuse, veterans/active military, worthless checks and prostitution programs; and substance abuse and veterans/active military problem-solving courts. Diversion is also authorized for offenses enumerated in § 948.08(6). (§ 397.334; § 948.08; § 948.16; § 944.16; § 394.47891; § 832.08)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database.
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.