RULE 46. RELEASE FROM CUSTODY
(a) Release Before Trial.
(1) At the initial appearance before a magistrate of a person charged with an offense, the magistrate shall order the person released pending trial on the person's personal recognizance or upon the 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 release will not reasonably assure the appearance of the person as required. If that determination is made, additional 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, may impose any of the following conditions of release which 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:
(A) Place the person in the custody of a designated person or organization agreeing to supervise the person;
(B) Require the person to maintain employment, or, if unemployed, to actively seek employment;
(C) Require the person to maintain or begin an educational program;
(D) Place restrictions on the travel, association, or place of abode of the person during the period of release;
(E) Require the person to avoid all contact with an alleged victim of the crime or with a potential witness who may testify concerning the offense;
(F) Require the person to report on a regular basis to a designated law enforcement agency, or any other agency;
(G) Require the person to comply with a specified curfew;
(H) Require the person to refrain from possessing a firearm, destructive device, or other dangerous weapon;
(I) Require 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;
(J) Require 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;
(K) Require 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 of the amount of the bond, which deposit must be returned upon the performance of the conditions of release;
(L) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu thereof; or
(M) Impose any other conditions reasonably necessary to assure appearance as required, including a condition requiring the return of the person to custody after specified hours.
(2) In determining which conditions of release will reasonably assure appearance, the magistrate, on the basis of available information, shall consider the nature and circumstances of the offense charged, the weight of the evidence against the person, the person's family ties, employment, financial resources, character and mental condition, the length of the person's residence in the community, the person's record of convictions, the person's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear voluntarily at court proceedings, and the nature and seriousness of the danger to any person or the community posed by the person's release.
(3) A magistrate authorizing the release of a person under this section shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform the person of the penalties applicable to violations of the 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) A person for whom conditions of release are imposed and who after 48 hours from the time of the release hearing continues to be detained as a result of the person's inability to meet the conditions of release, is entitled, upon request, to have the conditions reviewed by the magistrate.
(5) A magistrate ordering the release of a person on any condition specified in this section may amend the order at any time to impose additional or different conditions of release.
(6) Information stated in, or offered in connection with, an order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law.
(7) This section does not prevent the disposition of any case or class of cases by forfeiture of collateral security where that disposition is authorized by the court.
(b) Amendment of Conditions of Release by Other Magistrate. A person who is detained, or whose release on a condition requiring such person to return to custody after specified hours is continued, after review of the person's application pursuant to Subsection (a)(4) or (a)(5) by a magistrate other than
a magistrate of the trial judge court in the jurisdiction in which the offense was committed, may apply to the latter magistrate trial judge to amend the order. The motion shall be determined promptly.
(c) Release During Trial. A person released before trial must continue on release during trial under the same terms and conditions as were previously imposed, unless the court determines that other terms and conditions or termination of release are necessary to assure the person's presence during the trial or to assure that the person's conduct will not obstruct the orderly and expeditious progress of the trial.
(d) Motion for Release.
(1) Motion to District court. Any application for release, modification of the 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 to the district court, 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 motion must be determined promptly upon such papers, 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) Release of Material Witnesses. If it appears by affidavit that the testimony of a person is material in any criminal proceeding and it is shown that it may become impracticable to secure the person's presence by subpoena, a magistrate may issue a warrant for the person's detention and impose conditions of release pursuant to subsection (a)(1). A material witness may not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, and 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 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) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
(2) Setting aside. The court may direct a forfeiture be set aside, upon such conditions as the court may impose, if it appears justice does not require enforcement of the forfeiture.
(3) Enforcement. If a forfeiture has not been set aside, the court on motion shall enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of any appropriate court and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail or send by third-party commercial carrier copies to the obligors at their respective last-known addresses.
(4) Remission. After entry of judgment, the court may remit it in whole or in part under the conditions applying to the setting aside of forfeiture in paragraph (2) of this subdivision.
(h) 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.
(i) Supervision of Detention Pending Trial. The court ordering defendants or witnesses detained shall exercise supervision over the detention of those defendants and 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; _______________.
Rule 46 is an adaptation of Fed.R.Crim.P. 46, as amended in 1972.
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).
Subdivision (b) is adapted from the Bail Reform Act of 1966 (P.L. 89-465, 80 Stat. 215)
, 18 USC § 3147(a).
Subdivision (c) follows subdivision (b) of the federal rule and provides for bail during trial. This provision continues previous North Dakota law (N.D.C.C. § 29-08-08).
Subdivision (d) 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) 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 court and thereafter in the supreme court. Subdivision (d) 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) and N.D.R.App.P. 9(b) more easily understood.
Subdivision (e) is similar to 18 USC § 3149.
Subdivision (f) follows subdivision (d) of the federal rule.
Paragraph (g)(1) follows subdivision (e)(1) of the federal rule and previous North Dakota law (N.D.C.C. § 29-08-21) and requires a forfeiture of the bond must be declared if there is a breach of 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).
Paragraph (g)(3) follows subdivision (e)(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 (g)(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.
Paragraph (g)(3) was amended, effective March 1, 1999, to allow copies of the motion to be served via commercial carrier as an alternative to mail.
Paragraph (g)(4) follows subdivision (e)(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).]
Subdivision (h) follows subdivision (e)(4) 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.
Subdivision (i) follows subdivision (g) of the federal rule.
SOURCES: Joint Procedure Committee Minutes of _______________ pages ____; 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).