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 crimes committed in an officer’s presence. Citations can be issued at any time during the arrest process by law enforcement officer. The prosecuting attorney must duly issue for felony offenses. (§29-05-31 superseded by R. Cr. P. 5(e))
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses. (Const. Art. 1 §11)
Guidance for Setting Release Conditions
State statute provides a presumption of pretrial release on personal recognizance or unsecured appearance bond. (§29-08-01 et seq. superseded in part by R. Cr. P. Rule 46)
Pretrial Release Conditions
Law allows release on personal recognizance or an unsecured appearance bond. Common conditions of release include: commercial surety, cash deposit, other secured bond, supervision and additional requirements. Electronic monitoring is authorized for any defendant eligible for pretrial release. (§29-08-01 et seq. superseded in part by R. Cr. P. Rule 46)
When a defendant is unable to meet the pretrial release conditions, a judicial review is required after 48 hours in custody. (§29-08-01 et seq. superseded in part by R. Cr. P. Rule 46)
Bail Bond Agent Licensure
The Insurance Commissioner regulates bail bond agents. To be licensed, applicants must meet residency requirements and not be employed as: jailers; police officers; committing magistrates; magistrate court judges; sheriffs, deputy sheriffs and constables; any person with arrest powers; or prison officials. (§26.1-26-03; §26.1-26.6-01)
Bail Bond Agent Business Practices
The premium rate a bail bond agent can charge is the greater of $75 or 10 percent of the bond. They are prohibited from soliciting business any place where prisoners are confined, arraigned or in custody. Bail agents cannot recommend an attorney or make arrangements with public officials. A bail bond agent or bail bond agency cannot advertise as a surety company. (§§26.1-26.6-05 & 08)
Bail Forfeiture Procedure
Statute addresses standards for remission procedure. Unpaid forfeitures can result in suspension of the agent’s authority to execute new bonds. (§§26.1-26.6-05 & 09)
Victims’ Rights and Protection
Victim’s have the right to notification of the pretrial release hearing. They also have the right to notification of pretrial release and the conditions of release. Pretrial release hearings are required for domestic violence offenses. (§12.1-34-02(4); §14-07.1-10(3))
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.