TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 9, 2011
RE: Rule 46, N.D.R.Crim.P., Release from Custody
Attorney Mike Hoffman, in a letter written on behalf of the N.D. Association of Criminal Defense Lawyers, has requested that the Joint Procedure Committee address the issue of 24/7 program participation being used as a condition of bail. A copy of Mr. Hoffman's letter is attached.
Mr. Hoffman previously raised this issue in a 2008 letter, which was addressed by the Committee at the January 2009 meeting. At that time, the Legislature was considering a series of bills (eventually passed and made law) to extend the 24/7 program statewide.
At the January 2009 meeting, Committee members were generally supportive of the 24/7 program. They said that Mr. Hoffman was essentially asking for an advisory opinion on the propriety and legality of the program, which was not in the Committee's power to grant. They decided to inform Mr. Hoffman that the Committee would take no action on the issue.
The statutes below govern the 24/7 program:
- N.D.C.C. § 12-59-22 allows participation in 24/7 as part of parole.
- N.D.C.C. § 12.1-32-07(3) allows participation in 24/7 to be required as a condition of probation.
- N.D.C.C. § 31-06.1-11(5) requires participation in 24/7 as condition of obtaining a drivers permit for people charged with or convicted of a second DUI offense.
- N.D.C.C. § 54-12-27 allows the attorney general to establish a statewide 24/7 program and to coordinate with local agencies to implement the program.
- N.D.C.C. § 54-12-28 allows the attorney general to formulate guidelines and establish fees for the 24/7 program.
- N.D.C.C. § 54-12-29 establishes a continuing appropriation for the 24/7 program.
- N.D.C.C. § 54-12-30 allows agencies to collect fees from offenders to pay for the 24/7 program.
- N.D.C.C. § 54-12-31 allows courts to order people charged with DUI, domestic violence, child abuse, or alcohol and controlled substance offenses to participate in the 24/7 program as a bond condition.
Copies of these statutes are attached.
The attorney general's website features a page that explains the 24/7 program and that links to the extensive guidelines that have been developed for the program. The website implies that participation in the 24/7 program is a mandatory bond condition: "Judges in the participating judicial districts will, in the case of second or subsequent DUI arrest, issue a bond order requiring the arrestee to refrain from alcohol use and to show up twice each day between certain hours at a specific location for a breath alcohol test." A copy of the attorney general's explanation of the 24/7 program is attached.
N.D.C.C. § 54-12-31 gives courts discretion to require participation in the 24/7 program as a bond condition. Under N.D.R.Crim.P. 46(a)(2)(I), a court may require a person to refrain from "any use of alcohol" as a bond condition. During the Committee's 2008 discussion of Mr. Hoffman's previous letter, a member commented that courts sometimes require alcohol testing as a bond condition and that this is appropriate as long as there is case-by-case consideration. The language of the statute and rule do not indicate that participation in the 24/7 program is a mandatory bond condition, contrary to what the A.G. website states.
An additional 24/7 law was enacted during the 2011 legislative session and is now part of N.D.C.C. § 29-06-15. This new law allows the immediate arrest and jailing of any person who has violated conditions of an order requiring participation in the 24/7 program. A copy of this new provision is attached.
The Committee may wish to discuss whether Rule 46 should be amended to integrate language related to the 24/7 program and to reflect the apparently mandatory nature of the 24/7 bond requirement. In the alternative, the Committee could consider whether Rule 46 could somehow be amended consistent with the position of the Association of Criminal Defense Lawyers. A copy of Rule 46 is attached.