Revision: Jan. 17, 2019, 5:25 p.m.
SB 91 - AS INTRODUCED
SENATE BILL 91
SPONSORS: Sen. Bradley, Dist 3; Sen. Giuda, Dist 2; Sen. D'Allesandro, Dist 20; Sen. Ward, Dist 8; Sen. Carson, Dist 14; Rep. Fields, Belk. 4; Rep. Testerman, Merr. 2
This bill amends the factors and procedure for determining the dangerousness of a defendant for the purpose of release pending trial, reduces the evidentiary standard necessary for the court to deny bail to a defendant who has previously failed to appear 3 or more times, and provides that a victim shall not be required to testify at a bail hearing.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
III.(a) The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required. A person who the court determines to be a danger to the safety of that person or the public shall be governed by the provisions of paragraph IV[, except that such dangerousness determination shall not be based solely on evidence of drug or alcohol addiction or homelessness.
(b) In determining the amount of the unsecured appearance bond or cash or corporate surety bail under subparagraph II(a), if any, the court:
(1) Shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition.
(2) Shall consider whether the person is the parent and sole caretaker of a child and whether, as a result, such child would become the responsibility of the division of children, youth and families.
(3) Shall consider whether the person is the sole income producer for dependents.
(c) For purposes of the court's determination under this paragraph, evidence of homelessness or a lack of a mailing address by itself shall not constitute prima facie evidence of a lack of reasonable assurance that a person will not appear].
[(d)] (b) If, as a result of the court's decision, a person is detained, the court shall issue on the record findings of fact that document the basis for its decision.
[(e)] (c) If the court or justice determines by a preponderance of the evidence that the release described in this paragraph will not reasonably assure the appearance of the person, the court shall issue an order that includes the following conditions[, subject to the limitation in subparagraph (b)(1)]:
(1) The condition that the person not commit a crime during the period of release; and
(2) Such further condition or combination of conditions that the court determines will reasonably assure the appearance of the person as required, which may include the condition that the person:
(A) Execute an agreement to forfeit, upon failing to appear within 45 days of the date required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court or justice may specify;
(B) Furnish bail for his or her appearance by recognizance with sufficient sureties or by deposit of moneys equal to the amount of the bail required as the court may direct; and
(3) Satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of the person or the public.
[(f)] (d) In considering the conditions of release described in subparagraph [(e)(2)(A) or (e)(2)(B)] (c)(2)(A) or (c)(2)(B), the court may, upon its own motion, or shall, upon the motion of the state, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.
(e) If the court determines by a preponderance of the evidence that a person has 3 or more failures to appear, there shall be a rebuttable presumption that such release will not reasonably assure the appearance of the person as required.
IV.(a) If a person is charged with any criminal offense, an offense listed in RSA 173-B:1, I or a violation of a protective order under RSA 458:16, III, or after arraignment, with a violation of a protective order issued under RSA 173-B, the court may order preventive detention without bail, or, in the alternative, may order restrictive conditions including but not limited to electronic monitoring and supervision, only if the court determines by [clear and convincing] a preponderance of the evidence that release will endanger the safety of that person or the public. The court may consider [the following conduct as evidence of posing a danger] all relevant factors bearing on the issue of dangerousness, including, but not limited to:
(1) Threats of suicide.
(2) Acute depression.
(3) History of violating protective orders.
(4) Possessing or attempting to possess a deadly weapon in violation of an order.
(5) Death threats or threats of possessiveness toward another.
(6) Stalking, as defined in RSA 633:3-a.
(7) Cruelty or violence directed toward pets.
(8) Criminal history.
(9) Motor vehicle history.
(10) Probation or parole status, including any history of violating probation or parole.
(11) Active use of controlled substances.
(12) Evidence of distribution of heroin, fentanyl, carfentanyl, cocaine, crack cocaine, methamphetamine, or other opioid class substances.
(13) Facts underlying the charged conduct.
(14) History of violating bail orders or court-ordered no-contact provisions.
(15) History of failure to appear at court hearings.
V. A no-contact provision contained in any bail order shall not be construed to:
(a) Prevent counsel for the defendant from having contact with counsel for any of the individuals protected by such provision; or
(b) Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.
VI. If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173-B:9, I(a). Nothing in this section shall prevent detention without bail for violation of a protective order issued under RSA 173-B or RSA 633:3-a.
XI. A victim shall not be required to testify in a bail hearing. Nothing in this section shall prevent a victim from testifying voluntarily. Evidence in the bail hearing shall be by offer of proof unless a court has made an order finding that there is clear and convincing evidence that witness testimony in court is required.