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 must order the person released pending trial on the person's personal recognizance or 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 unconditional release will not reasonably assure the appearance of the person as required. (2) Setting Release Conditions. If the magistrate concludes that unconditional release is not appropriate, release conditions may be imposed, either in lieu of or in addition to the methods of release specified in Rule 46(a)(1). The magistrate may impose any release condition that will reasonably assure the appearance of the person for trial including: (A) placing the person in the custody of a designated person or organization agreeing to supervise the person; (B) requiring the person to maintain employment, or, if unemployed, to actively seek employment; (C) requiring the person to maintain or begin an educational program; (D) placing restrictions on the travel, association, or place of abode of the person during the period of release; (E) 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; (F) requiring the person to report on a regular basis to a designated law enforcement agency, or any other agency; (G) requiring the person to comply with a specified curfew; (H) requiring the person to refrain from possessing a firearm, destructive device, or other dangerous weapon; (I) 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; (J) 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; (K) 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 percent of the amount of the bond, which deposit must be returned on performance of the release conditions; (L) requiring the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu of a bail bond; or (M) 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 time of day. (3) Release Condition Factors. In determining conditions of release that will reasonably assure appearance of a person, the magistrate, on the basis of available information, 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; and (G) the nature and seriousness of the danger to any person or the community posed by the person's release. (4) Release Order. A magistrate authorizing the release of a person under Rule 46(a) must: (A) issue an order containing a statement of the release conditions imposed, if any; (B) inform the person of the penalties applicable to violations of the release conditions; and (C) advise the person that a warrant for the person's arrest will be issued immediately upon any violation. (5) Review of Release Conditions. A person for whom release conditions are imposed who continues to be detained 48 hours after the release hearing because of an inability to meet the conditions may, upon request, have the conditions reviewed by a magistrate. (6) Amending Release Conditions. A magistrate ordering the release of a person on any condition specified in a release order may amend the order at any time to impose additional or different conditions of release. (7) Release Information. Information stated in, or offered in connection with, an order entered under Rule 46(a) need not conform to the North Dakota Rules of Evidence. (8) Collateral Security. Rule 46(a) does not prevent the disposition of any case or class of cases by forfeiture of collateral security when that disposition is authorized by the court. (b) Release During Trial. A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person's conduct will not obstruct the orderly and expeditious progress of the trial. (c) Motion for Release. (1) Motion to District Court. A person must make any application for release, modification of release conditions, or revocation of release after a notice of appeal from a judgment of conviction has been filed, 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 first making a motion to the district court under Rule 46(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 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 promptly on the documents, declarations, and portions of the record the parties present. The supreme court or one of its justices may order the release of the appellant pending disposition of the motion. (d) Release of Material Witness. A magistrate may issue a warrant for detention of a person if: (1) it appears by a declaration that the testimony of the person is material in any criminal proceeding; and (2) it is shown that it may be impracticable to secure the person's presence by subpoena. The magistrate may impose release conditions 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 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 is taken. (e) Surety. (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 a declaration that its assets are adequate. The court may require the declaration 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. (f) Bail Forfeiture. (1) Declaration. (A) The court must declare the bail forfeited if a condition of the bond is breached. (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 set aside in whole or in part a bail forfeiture upon any condition the court may impose if it appears justice does not require 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. (3) Enforcement. (A) Default and Execution. If it does not set aside a bail forfeiture, the court must, upon the prosecution's motion, enter a default judgment. (B) Jurisdiction and Service. By entering into a bond, each surety submits to the court's jurisdiction and irrevocably appoints the clerk of court as its agent to receive service of any filings affecting its liability. (C) Motion to Enforce. The court may, upon the prosecution's motion, enforce the surety's liability without an independent action. The prosecution must serve any motion, and notice as the court prescribes, on the clerk of court. If so served, the clerk must promptly mail or send by third-party commercial carrier a copy to the surety at its last-known address. (4) Remission. After entering a judgment under Rule 46 (f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2)(A). (g) Exoneration. 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. (h) Supervising Detention Pending Trial. To eliminate unnecessary detention, a court must supervise the detention of defendants it orders held awaiting trial and of persons it orders held as material witnesses.