RULE 46. RELEASE FROM CUSTODY
(a) Release Before Trial.
(1) In General. At the initial appearance before a magistrate of a person charged
offense, the magistrate
shall must order the person released pending
trial on the person's
personal recognizance or upon the on execution of an unsecured
appearance bond in an
amount specified by the magistrate, unless the magistrate determines, in the exercise of the
magistrate's discretion, that such unconditional release will not
reasonably assure the
appearance of the person as required.
(2) Setting Release Conditions. If
that determination is made
the magistrate concludes that
unconditional release is not appropriate, additional release
conditions may be imposed on
the release of the person. The magistrate, either in lieu of or in addition to the
of release , specified in Rule 46(a)(1). The magistrate may impose any
of the following
conditions of release which will release condition that will reasonably assure
of the person for trial or, if no single condition gives that assurance, two or more of the
following conditions including:
Place placing the person in the custody of a designated
person or organization agreeing
to supervise the person;
Require requiring the person to maintain employment, or, if
unemployed, to actively
Require requiring the person to maintain or begin an
Place placing restrictions on the travel, association, or place
of abode of the person
during the period of release;
Require requiring the person to avoid all contact with an
alleged victim of the crime or
with a potential witness who may testify concerning the offense;
Require requiring the person to report on a regular basis to a
enforcement agency, or any other agency;
Require requiring the person to comply with a specified
Require requiring the person to refrain from possessing a
firearm, destructive device,
or other dangerous weapon;
Require requiring the person to refrain from any use of
alcohol, or any use of a narcotic
drug or other controlled substance, as defined in N.D.C.C. ch. 19-03.1, without a
prescription by a licensed medical practitioner;
Require requiring the person to undergo available medical,
psychological, or psychiatric
treatment, including treatment for drug or alcohol dependency, and to remain in a specified
institution if required for that purpose;
Require requiring the execution of an appearance bond in a
specified amount and the
deposit with the court , of cash or other security as directed, in an
amount not to exceed ten
per centum percent of the amount of the bond, which deposit must be
returned upon the on
performance of the release conditions of release;
Require requiring the execution of a bail bond with sufficient
solvent sureties, or the
deposit of cash in lieu thereof of a bail bond; or
Impose imposing any other conditions reasonably necessary
to assure appearance as
required, including a condition requiring the return of the person to custody after a
hours time of day.
(2)(3) Release Condition Factors. In determining
which conditions of release that will
reasonably assure appearance of a person, the magistrate, on the basis of available
information, shall must consider:
(A) the nature and circumstances of the offense
(B) the weight of the evidence against the person
(C) the person's family ties, employment, financial resources, character and mental
(D) the length of the person's residence in the
(E) the person's record of convictions
(F) the person's record of appearance at court proceedings or of flight to avoid
or failure to appear voluntarily at court proceedings
(G) the nature and seriousness of the danger to any person or the community posed by the person's release.
(3)(4) Release Order. A magistrate authorizing the
release of a person under this section
shall Rule 46(a) must:
(A) issue an
appropriate order containing a statement of the
release conditions imposed, if
shall inform the person of the penalties applicable to
violations of the release conditions
of the person's release; and
shall advise the person that a warrant for the person's arrest
will be issued immediately
upon any violation.
(4)(5) Review of Release Conditions. A person for
whom release conditions of release are
imposed and who continues to be detained after 48
hours from the time of after the release
hearing continues to be detained as a result because of the
person's an inability to meet the
conditions of release, is entitled may, upon request,
to have the conditions reviewed by the
(5)(6) Amending Release Conditions. A magistrate
ordering the release of a person on any
condition specified in this section a release order may amend the order
at any time to impose
additional or different conditions of release.
(6)(7) Release Information. Information stated in, or
offered in connection with, an order
entered pursuant to this section under Rule 46(a) need not conform to
the rules pertaining
to the admissibility of evidence in a court of law North Dakota Rules of
(7)(8) Collateral Security. This section
Rule 46(a) does not prevent the disposition of any
case or class of cases by forfeiture of collateral security where when
that disposition is
authorized by the court.
(c) Release During Trial. A person released before trial must
continue continues on release
during trial under the same terms and conditions. as were previously imposed,
unless But the
court determines that other may order different terms and
conditions or termination of
terminate the release are if necessary to
assure ensure that the person's presence person
be present during the trial or to assure that the person's
conduct will not obstruct the orderly
and expeditious progress of the trial.
(d) (c) Motion for Release.
(1) Motion to District Court.
Any A person must make any
application for release,
modification of the release conditions of release, or
revocation of release after a notice of
appeal from a judgment of conviction has been filed, must first be made to the
before the motion may be made to the supreme court. If the district court refuses release
pending appeal, or imposes conditions of release, or revokes release, the court must state in
writing the reasons for the action taken.
(2) Motion to Supreme Court.
After having first been made After first
making a motion to
the district court under Rule 46(c)(1), a person may make a motion for release,
modification of the conditions of release, or for revocation of release, pending review
be made to the supreme court or to one of its justices. After reasonable notice to the
the supreme court or one of its justices must decide the motion must be
upon such papers on the documents, affidavits, and portions of the
record as the parties
present. The supreme court or one of its justices may order the release of the appellant
pending disposition of the motion.
(e) (d) Release of Material Witnesses
Witness. If A magistrate may issue a warrant for
detention of a person if:
(1) it appears by affidavit that the testimony of
person is material in any criminal
(2) it is shown that it may
become be impracticable to
secure the person's presence by
, a The magistrate may issue a warrant for the person's
detention and impose release
conditions of release pursuant to subsection (a)(1) as specified in Rule
46(a) on a detained
material witness. A material witness may not be detained because of inability to comply
any release condition of release if the testimony of the witness can
adequately be secured by
deposition, and if further detention is not necessary to prevent a failure of justice.
may be delayed for a reasonable time until the deposition of the witness can be
pursuant to these rules.
(f) Justification of Sureties. Every surety, except a corporate surety that is approved
provided by law, shall justify by affidavit and may be required to describe in the affidavit
the property by which the surety proposes to justify and the encumbrances thereon, the
number and amount of other bonds and undertakings for bail entered into by the surety and
remaining undischarged and all other liabilities. A bond must not be approved unless the
surety thereon appears to be qualified.
(1) Approval. The court must not approve a bond unless the surety appears to be qualified. Every surety, except a legally approved corporate surety, must demonstrate by affidavit that its assets are adequate. The court may require the affidavit to describe the following:
(A) the property that the surety proposes to use as security;
(B) any encumbrance on that property;
(C) the number and amount of any other undischarged bonds and bail undertakings the surety has issued; and
(D) any other liability of the surety.
(2) Suspension. If a surety fails to make payment on forfeited bail within ninety days, the surety and its agent will be suspended automatically from writing further bonds. The suspension will continue for a period of thirty days from the date the principal amount of the bond is deposited in cash with the clerk of court.
(g) (f) Bail Forfeiture.
(A) The court must declare the bail forfeited if a
If there is a breach
of condition of a the
bond is breached , the court shall declare a forfeiture of the bail.
(B) If the court declares bail forfeited, the clerk of court must notify any surety in writing and direct the surety to make payment under the terms of the bond within ninety days of the date of the forfeiture order. The clerk must send a copy of the forfeiture order with the notice.
(2) Setting Aside.
(A) The court may
direct a forfeiture be set aside in whole or
in part a bail forfeiture upon
any condition , upon such conditions as the court may
impose , if it appears justice does not
require enforcement of the bail forfeiture.
(B) Any motion for a bail forfeiture to be set aside must be filed with the clerk of court within ninety days of the date of the order of forfeiture.
(A) Default and Execution. If it does not set aside a bail
has not been set aside,
the court must, upon the prosecution's motion,
shall enter a default judgment of default and
execution may issue thereon.
(B) Jurisdiction and Service. By entering into a bond,
obligors each surety submit
submits to the court's jurisdiction of any appropriate court and
irrevocably appoint appoints
the clerk of the court as their its agent upon
whom any papers to receive service of any
filings affecting their its liability may be served.
(C) Motion to Enforce.
Their The court may, upon the
prosecution's motion, enforce the
surety's liability may be enforced on motion without the necessity
of an independent action.
The prosecution must serve any motion, and such notice
of the motion as the court
prescribes, may be served on the clerk of the
court ,. who shall forthwith If so served, the
clerk must promptly mail or send by third-party commercial carrier copies to the
copy to the surety at their respective its last-known
(4) Remission. After
entry of entering a judgment under Rule
46 (f)(3), the court may remit
it in whole or in part the judgment under the same conditions
applying to the setting aside
of forfeiture in paragraph (2) of this subdivision specified in Rule 46(f)(2)(A).
(h) (g) Exoneration. If the condition of the bond has been
satisfied or the forfeiture thereof
has been set aside or remitted, the court shall exonerate the obligor and release any bail. A
surety may be exonerated by a deposit of cash in the amount of the bond or by a timely
surrender of the defendant into custody. The court must exonerate the surety and
bail when a bond condition has been satisfied or when the court has set aside or remitted the
forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond
or timely surrenders the defendant into custody.
(i) (h) Supervision of Supervising
Detention Pending Trial. The To eliminate unnecessary
detention, a court ordering defendants or witnesses detained shall exercise
must supervise the detention of those defendants it orders held
awaiting trial and of persons
it orders held as material witnesses pending trial, for the purpose of eliminating all
Rule 46 was amended, effective March 1, 1986; March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2003; March 1, 2005; March 1, 2006.
Rule 46 is an adaptation of Fed.R.Crim.P. 46
, as amended in 1972.
Rule 46 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (a) is adapted from the language of the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 214), 18 U.S.C. § 3146.
Subdivision (a) was amended, effective January 1, 1995, to make the safety of any other
person or the community a relevant consideration when determining which conditions of
release will reasonably assure the appearance of a person charged with an offense.
Additional conditions of release were added from the Bail Reform Act of 1984, 18 U.S.C.
§ 3142(c). Paragraph (a)
(4)(5) was amended, effective March
1, 2005, to clarify that
a magistrate who conducts a review of release conditions need not be the same magistrate
who imposed the release conditions. Subdivision (b) A separate
subdivision dealing with
review of release conditions was repealed effective March 1, 2005. Under N.D.C.C.
19-03.1-46 (Bail - Additional Conditions of Release), persons charged with controlled
substance offenses may be subject to release conditions in addition to those listed in
(c) (b) follows subdivision (b) of
the federal rule and provides for bail during
trial. This provision continues is consistent with previous North
Dakota law (N.D.C.C. §
(d) (c) and N.D.R.App.P. 9(b) are derived from
Fed.R.App.P. 9(b). These
subdivisions regulate the procedure for release of the defendant when the jurisdiction of the
appellate court has attached by virtue of the filing of an appeal from a judgment of
conviction. Both subdivision (d) (c) and N.D.R.App.P. 9(b) were
amended, effective March
1, 1986, to permit modification or revocation of the release of a defendant who was initially
released pending appeal and to clarify that an application for release after a notice of appeal
is filed must be made in the first instance in the trial district court and
thereafter in the
supreme court. Subdivision (d) (c) and N.D.R.App.P. 9(b) were further
March 1, 2003. The language and organization were changed to make subdivision
(d) (c) and
N.D.R.App.P. 9(b) more easily understood.
(e) (d) is similar to 18 USC § 3149.
(f) (e) follows subdivision (d)
(e) of the federal rule.
Paragraph (e)(2) was added, effective March 1, 2006, to provide for automatic suspension of sureties that fail to pay forfeited bail.
(g)(f)(1)(A) follows subdivision
paragraph (e)(f)(1) of the federal
rule and previous North Dakota law (N.D.C.C. § 29-08-21) and requires
that a forfeiture
of the bond must be declared if there is a breach of bond
conditions on the bond. Although
this provision has been held to be mandatory, subdivision (g)(2) permits an excusal of the
forfeiture if "justice does not require the enforcement of the forfeiture".
provision is designed to discourage violations of bail covenants and to deter defaults which
create unnecessary delay and expense to the government
[prosecution ]. " Smith v. United
States, 357 F.2d 486, 490 (5th Cir. 1966).
Subparagraph (f)(1)(B) was added, effective March 1, 2006, to create a mechanism for notifying sureties of bail forfeiture orders.
Subparagraph (f)(2)(A) permits a forfeiture to be excused if justice does not require its
enforcement. Subparagraph (f)(2)(B) was added, effective March 1, 2006, to clarify that
requests to excuse may be made by motion and to set a deadline for such motions.
(g)(f)(3) follows subdivision
paragraph (e)(f)(3) of the federal rule and establishes
a single procedure , copied from Fed.R.Civ.P. 65.1, through which the court, on
enforce forfeited bail bonds. Subdivision Paragraph
(g)(f)(3) was amended, effective March
1, 1986, to delete "district" court and make clear that obligors, by entering into bond, subject
themselves to the jurisdiction of an appropriate court and appoint the clerk as their agent for
service of any papers documents.
(g)(f)(3) was amended, effective March 1, 1999, to
allow copies of the motion
to be served via commercial carrier as an alternative to mail.
(g)(f)(4) follows subdivision
paragraph (e)(f)(4) of the federal rule. A
determination for remission should be made only after judgment of default has been entered.
[United States v. Miller, 323 F.2d 403 (6th Cir. 1963).]
(h)(g) follows subdivision (e)(4)
(g) of the federal rule. The provision that the
surety may surrender the defendant into custody, whether or not the case has been disposed
of, is consistent with previous North Dakota law (N.D.C.C. § 29-08-20)
and avoids a
breach and forfeiture when the surety has reason to anticipate that defendant will not appear.
(i)(h) follows subdivision
(g)(h) of the federal rule.
SOURCES: Joint Procedure Committee Minutes of September 22-23, 2005, pages 18-20; April 28-29, 2005, pages 8-9; September 23-24, 2004, pages 14-18; January 29-30, 2004, pages 15-16, 18; September 23-24, 1999, pages 18-19; January 29-30, 1998, page 20; April 28-29, 1994, pages 4-6; January 27-28, 1994, pages 18-23; September 23-24, 1993, pages 21-23; April 20, 1989, page 4; December 3, 1987, page 15; November 29, 1984, page 12; April 26, 1984, pages 11-17 and 21; January 19, 1984, pages 5-9; April 24-26, 1973, pages 14-15; December 11-15, 1972, pages 50-53; November 18-20, 1971, pages 12-22; Fed.R.Crim.P. 46.
SUPERSEDED: N.D.C.C. §§ 29-08-04, 29-08-05, 29-08-06, 29-08-07, 29-08-08, 29-08-09, 29-08-10, 29-08-11, 29-08-12, 29-08-13, 29-08-14, 29-08-15, 29-08-17, 29-08-18, 29-08-19, 29-08-20, 29-08-21, 29-08-23, 29-08-24, 29-08-25, 29-12-02, 29-21-34, 29-28-16, 29-28-17, 31-03-21, 31-03-22, 31-03-23, 31-12-10, 33-12-36, 33-12-37, 33-12-38.
CONSIDERED: N.D.C.C. §§ 12-01-13, 22-02-09, 29-05-12, 29-05-13, 29-05-14, 29-08-01, 29-08-02, 29-08-03, 29-08-16, 29-08-22, 29-08-26, 29-08-27, 29-21-21, 29-21-23, 29-22-31, 31-03-19, 31-03-20, 31-03-24.
CROSS REFERENCE: N.D.R.App.P. 9 (Release in Criminal Case); N.D.C.C. § 19-03.1-46 (Bail - Additional Conditions of Release).