Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 14-0774.01 Michael Dohr x4347 HOUSE BILL 14-1261 HOUSE SPONSORSHIP Wright, SENATE SPONSORSHIP (None), House Committees Senate Committees Judiciary A BILL FOR AN ACT Concerning pretrial release. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) Current law allows listed entities electronic read-only access to the name index and register of actions of public case types. The bill adds bonding agents to the list. The bill limits a court's authority to determining the amount of the bond and gives the defendant the ability to choose how to satisfy the bond. The bill limits the court's authority to release a person on personal recognizance bond (PR bond). The court may not issue a PR bond if the person failed to appear on a felony or class 1 misdemeanor in the last 5 years or fails to appear while on bond for a felony or class 1 misdemeanor or if the court does not have sufficient information to make an intelligent decision regarding issuing a PR bond. The bill sets the following specific bond amounts for the following crimes: $10,000 for driving under restraint with a prior DUI; $50,000 for vehicular eluding while driving under the influence; and $50,000 for felony drug distribution. A pretrial supervision program that supervises a defendant who has also been released on a bond with a bond posted by a compensated surety shall notify the surety, within 2 business days, of any violations or potential violations of bond or supervision conditions discovered by the pretrial supervision program or if the pretrial supervision program intends to request bond revocation. The bill requires the court to order the compensated surety who posted a bond to return all premiums paid by the defendant, and the county or agency to refund all pretrial supervision costs or fees, if, within 14 days of posting the bond for the defendant, all charges related to the bond are dismissed by the court or no charges are filed against the defendant. Under current law, a defendant's bond deposit may be used to cover the court costs. The bill repeals this provision. The bill directs the Colorado commission on criminal and juvenile justice to complete a comprehensive study of county pretrial services programs. The bill creates a criminal affirmative defense for bail bond agents who perform their work in a reasonable manner. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 13-1-119.5, amend (1) (e) and (1) (f); and add (1) (g) as follows: 13-1-119.5. Electronic access to name index and register of actions. (1) Statewide electronic read-only access to the name index and register of actions of public case types shall be made available to the following agencies or attorneys appointed by the court: (e) Respondent parent counsel appointed by the court and paid by the judicial department as it relates to a case in which they are appointed by the court; and (f) Criminal justice agencies as described in section 24-72-302 (3), C.R.S.; and (g) Bonding agents as defined by section 16-1-104 (3.5), C.R.S. SECTION 2. In Colorado Revised Statutes, 16-4-104, amend (1) (c) introductory portion, (2) introductory portion, (2) (b), and (2) (c); and add (2) (d), (5), (6), and (7) as follows: 16-4-104. Types of bond set by the court. (1) The court shall determine, after consideration of all relevant criteria, which of the following types of bond is appropriate for the pretrial release of a person in custody, subject to the relevant statutory conditions of release listed in section 16-4-105. The person may be released upon execution of: (c) A bond with secured monetary conditions when reasonable and necessary to ensure the appearance of the person in court or the safety of any person or persons or the community. The financial conditions shall state an amount of money that the person must post with the court in order for the person to be released. The court may only determine the amount of the monetary condition, and the defendant shall choose how to satisfy the monetary condition. The court shall not specify different monetary bond amounts depending on how the defendant chooses to satisfy the monetary condition. The person may be released from custody upon execution of bond in the full amount of money to be secured in any one of the following ways: (2) Unless the district attorney consents or unless and the court imposes certain additional individualized conditions of release as described in section 16-4-105, a person must not be released on an unsecured personal recognizance bond pursuant to paragraph (a) of subsection (1) of this section under the following circumstances: (b) The person has a record of conviction of a class 1 misdemeanor within two years or a felony within five years, prior to the bail hearing; or (c) The person has willfully failed to appear on bond in any case involving a felony or a class 1 misdemeanor charge in the preceding five years; or (d) A person who is eighteen years of age or older or is being charged as an adult pursuant to section 19-2-517, C.R.S., or transferred to the district court pursuant to section 19-2-518, C.R.S., if the person's criminal record indicates that he or she failed to appear on bond in any case involving a felony or class 1 misdemeanor charge in the preceding five years. (5) A person must not be released on personal recognizance until and unless the judge ordering the release has before him or her reliable information concerning the person, prepared or verified by another person designated by the court, or substantiated by sworn testimony at a hearing before the judge, from which an intelligent decision based on the criteria set forth in this section can be made. Such information must be submitted either orally or in writing without unnecessary delay. (6) Any person who fails to appear while free on bond in conjunction with a class 1 misdemeanor or a felony and who is subsequently arrested is not eligible for a personal recognizance bond for that case in which the person failed to appear; except that, if the defendant can provide satisfactory evidence to the court that the failure to appear was due to circumstances or events beyond the control of the person, the court has the discretion to grant a personal recognizance bond. (7) (a) If a person is arrested under section 42-2-138 (1) (d) (I), C.R.S., for driving while such person's driver's license or privilege to drive, either as a resident or nonresident, is restrained solely or partially because of a conviction of a driving offense pursuant to section 42-4-1301 (1) or (2) (a), C.R.S., then the bail for such person must be at least ten thousand dollars. (b) If a person is arrested for vehicular eluding under section 18-9-116.5, C.R.S., and driving under the influence under section 42-4-1301, C.R.S., arising out of the same incident, the bail for such person must be fifty thousand dollars or such amount as set by the court after consideration of all relevant factors. (c) If a person is arrested for distribution of a schedule I or schedule II controlled substance pursuant to section 18-18-405, C.R.S., then the court shall set bail for such person at fifty thousand dollars; except that, upon the motion of the district attorney or defendant and a showing of good cause, the court may set bail at an amount other than the specified amount. SECTION 3. In Colorado Revised Statutes, 16-4-106, add (4) (e) as follows: 16-4-106. Pretrial services programs. (4) Any pretrial services program approved pursuant to this section must meet the following criteria: (e) A pretrial supervision program that is supervising a defendant who has also been released on a bond with a bond posted by a compensated surety shall notify the surety, within two business days, of any violations or potential violations of bond or supervision conditions that have been discovered by the pretrial supervision program. In addition, when a pretrial supervision program intends to request revocation of bond, it shall notify the surety as soon as reasonably possible of the intention to request revocation of bond. SECTION 4. In Colorado Revised Statutes, 16-4-110, amend (2) as follows: 16-4-110. Exoneration from bond liability. (2) If, within fourteen days after the posting of a bond by a defendant, the terms and conditions of said bond are changed or altered either by order of court or upon the motion of the district attorney or the defendant, the court, after a hearing, may order a compensated surety to refund a portion of the premium paid by the defendant, if necessary, to prevent unjust enrichment. If more than fourteen days have elapsed after posting of a bond by a defendant, the court shall not order the refund of any premium. If, within fourteen days after posting a bond for a defendant, charges are not filed against the defendant or all charges brought against the defendant for which the monetary condition of the bond were imposed are dismissed by the court, the court shall order the compensated surety who posted the bond to return all premiums paid by the defendant and order the county or any other agency to refund to the defendant pretrial supervision costs, bonding fees, or other costs and fees paid by the defendant. SECTION 5. In Colorado Revised Statutes, 16-4-111, repeal (1) (b) as follows: 16-4-111. Disposition of security deposits upon forfeiture or termination of bond. (1) (b) (I) Notwithstanding the provisions of paragraph (a) of this subsection (1), if the depositor of the cash bond is the defendant and the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court may apply the deposit toward any amount owed by the defendant in court costs, fees, fines, restitution, or surcharges. If any amount of the deposit remains after paying the defendant's outstanding court costs, fees, fines, restitution, or surcharges, the court shall return the remainder of the deposit to the defendant. (II) Notwithstanding the provisions of paragraph (a) of this subsection (1), if the depositor of the cash bond is not the defendant, but the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court may apply the deposit toward the amount owed by the defendant in court costs, fees, fines, restitution, or surcharges if the depositor agrees in writing to the use of the deposit for such purpose. If any amount of the deposit remains after paying the defendant's outstanding court costs, fees, fines, restitution, or surcharges, the court shall return the remainder of the deposit to the depositor. SECTION 6. In Colorado Revised Statutes, 16-11.3-103, add (2.6) as follows: 16-11.3-103. Duties of the commission - mission - staffing - repeal. (2.6) The commission shall complete a comprehensive study of the county pretrial supervision programs, including but not limited to: (a) The consistency in such programs; (b) Supervision practices; (c) Exercise of discretion in revoking defendant's bail; (d) Cooperation with surety bail agents; (e) The effectiveness of the programs, including but not limited to situations when a defendant absconds; (f) Records retention and disclosure policies; (g) Coercion of defendants while in jail; (h) The costs of supervision to defendants; (i) The amount of money collected from defendants; (j) Complaints filed against pretrial agencies and complaint processes; (k) The extent to which pretrial agencies contract out part or all of their duties; (l) How these programs might be privatized or partially privatized; (m) Validity of risk instruments being used in court, including but not limited to whether such instruments have been scientifically validated by neutral and qualified professionals; (n) The extent to which judges are ordering defendants to speak to pretrial programs and the appropriateness thereof; (o) The extent to which programs are advising defendants of their ability and right to request monetary bail in lieu of supervision; (p) Whether the assessments by pretrial agencies should be privatized or partially privatized; (q) Whether statutory authority is necessary to charge offenders for the supervision and related services; (r) The policies and procedures for dealing with indigent defendants; (s) Qualifications of pretrial staff and the consistency thereof; (t) An examination of the consistency in local laws or judicial officers' directives in terms of the governance of these programs; and (u) An examination of the costs of such programs. SECTION 7. In Colorado Revised Statutes, add 18-1-708.5 as follows: 18-1-708.5. Bail bond agent - affirmative defense. (1) It is an affirmative defense to all crimes if a defendant acts as a reasonable bonding agent or registered professional cash-bail agent in apprehending a person subject to a bail bond. The elements of the affirmative defense are: (a) The defendant is acting as an authorized agent of a bail bondsman; (b) The defendant reasonably believed the person subject to the bail bond violated the conditions of his or her bond; (c) The defendant reasonably believed he or she had located the person subject to the bail bond; and (d) The defendant acted reasonably in attempting to effect the arrest of the person subject to the bail bond. SECTION 8. Effective date - applicability. This act takes effect July 1, 2014, and applies to arrests made or charges filed on or after said date. SECTION 9. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.