RULE 46. RELEASE FROM CUSTODY
(a) Release Before Trial.
(1) In General. At the initial appearance before a magistrate of a person charged with an 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 above methods 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 the appearance 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 seek employment;
Require requiring the person to maintain or begin an educational program;
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 designated law enforcement agency, or any other agency;
Require requiring the person to comply with a specified curfew;
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 specified 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 charged
(B) the weight of the evidence against the person
(C) the person's family ties, employment, financial resources, character and mental condition
(D) the length of the person's residence in the community
(E) the person's record of convictions
(F) the person's record of appearance at court proceedings or of flight to avoid prosecution 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 16(a) must:
(A) issue an
appropriate order containing a statement of the release conditions imposed, if any ,;
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 a magistrate. (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 16(a) need not conform to the rules pertaining to the admissibility of evidence in a court of law North Dakota Rules of Evidence. (7)(8) Collateral Security. This section Rule 16(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.
[Repealed] (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 will 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 district court 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 16(c)(1), a person may make a motion for release, or for modification of the conditions of release, or for revocation of release, pending review may be made to the supreme court or to one of its justices. After reasonable notice to the appellee, the supreme court or one of its justices must decide the motion must be determined promptly 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
a the person is material in any criminal proceeding; and
(2) it is shown that it may
become be impracticable to secure the person's presence by subpoena. , 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 with 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. Release may be delayed for a reasonable time until the deposition of the witness can be is taken pursuant to these rules. (f) Justification of Sureties. Every surety, except a corporate surety that is approved as 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 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 forfeiture
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,
the 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 obligors a copy to the surety at their respective its last-known address es.
(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 release any 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 supervision over 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 unnecessary detention.
Rule 46 was amended, effective March 1, 1986; March 1, 1990; January 1, 1995; March 1, 1999; March 1, 2003; March 1, 2005; ________________.
Rule 46 is an adaptation of Fed.R.Crim.P. 46
, as amended in 1972.
Rule 46 was amended, effective ______________, 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.
(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. § 29-08-08).
(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 amended, effective 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 ______________, to provide for automatic suspension of sureties that fail to pay forfeited bail.
Paragraph Subparagraph (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". "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 __________________, 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 _____________, to clarify that requests for excusal may be made by motion and to set a deadline for such motions. Paragraph
(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 motion, can 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 ________________, pages____; 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).