TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: December 30, 2011
RE: Rule 46, N.D.R.Crim.P., Release from Custody
The North Dakota Association of Criminal Defense Lawyers recently requested that the Committee address the issue of 24/7 program participation being used as a condition of bail. A copy of NDACDL letter is attached.
In September, the Committee discussed the issues raised by the NDACDL and concluded that N.D.C.C. § 54-12-31 allows courts to require participation in the 24/7 program as a bond condition, but does not mandate 24/7 program participation. Likewise, the Committee concluded that N.D.R.Crim.P. 46(a)(2)(I) allows courts to require a person to refrain from "any use of alcohol" as a bond condition. Because it concluded that using the 24/7 program as a bond condition is already discretionary with the court, the Committee decided not to make any amendments to Rule 46.
Some members of the Committee, however, said that enforcement procedures after a 24/7 program violation were a matter that the Committee should look at. The Committee instructed staff to research enforcement procedures in other jurisdictions using the 24/7 program.
The 24/7 program was created in South Dakota. Two other states use the 24/7 program: North Dakota and Montana. Montana started its program in limited locations in October 2011 and it will be expanding to 12 more counties in February. South Dakota, therefore, provides the most extensive history to examine.
Statistics on the South Dakota 24/7 website show that the state faces enforcement issues with the program. While 55 percent of participants never fail a test, 17 percent fail once, 12 percent fail twice and 16 percent fail three or more times. Since 2007, there have been more than 10,000 breath tests failed and more than 15,000 breath test no shows.
South Dakota's equivalent of Rule 46, S.D.C.L. 23A-43, does not mention the 24/7 program. S.D.C.L. 1-11-20, one of the 24/7 program enabling statutes, allows program participation as a condition of bond. When a court orders 24/7 program participation as a condition of bond, a special bond condition form is used. A copy is attached. The form provides that "should the Defendant violate any bond condition listed above, the Defendant shall be immediately taken into custody and held without bond until the matter can be brought before the Court."
Staff was unable to locate any South Dakota case law related to the 24/7 program or rules regarding enforcement procedure after a program violation. Staff contacted Jeff Larson, a Minnehaha County public defender, who explained what generally happens when a violation occurs. If a person fails a screening test, they are held in jail. The screening personnel electronically notify the clerk of court and the prosecutor of the violation. The clerk then notifies the defense counsel of record of the violation.
If the defense counsel does not get to court for the post-violation appearance, the defendant may proceed pro se. In Minnehaha County, there is a public defender on standby at appearances and a temporarily unrepresented defendant may accept assistance from the public defender on a limited basis for the 24/7 bond violation.
Mr. Larson said most first-time violators are admonished and put back on the 24/7 program while multiple violators may face revocation of bond or some time in jail.
Several newspaper articles discussing the experiences of people who have gone through the SD 24/7 program are attached. Among other things, the articles indicate that defendants who violate 24/7 program conditions generally end up in jail overnight or for a weekend and then are returned to the 24/7 program after appearing in court. This seems very similar to what happens in North Dakota as discussed at the Committee's September 2011 meeting.