Bill Text: IN SB0040 | 2011 | Regular Session | Introduced
Bill Title: Bail.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-01-05 - First reading: referred to Committee on Judiciary [SB0040 Detail]
Download: Indiana-2011-SB0040-Introduced.html
Citations Affected: IC 27-10-2; IC 35-33-14.
Synopsis: Bail. Provides that an undertaking for bail expires 36
months after the undertaking is posted for the release of a defendant
from custody if: (1) the defendant fails to appear as required; and (2)
the court fails to make an adjudication concerning the defendant,
including refusing to extradite the defendant; during the 36 month
period. Requires sureties and bail agents to establish and maintain
electronic mail addresses before June 1, 2011. Provides that if a
defendant does not appear as provided in a bond and the court orders
the bail agent and the surety to surrender the defendant to the court, the
clerk may send notice of the order by electronic mail to the bail agent
and surety. Reduces the amount of time that a surety and bail agent
have to produce a defendant or provide a valid reason for the
defendant's failure to appear from 365 days to 180 days. Provides that
a court must release the bail agent and surety from liability from a bond
if a defendant is arrested before the court enters judgment on the
forfeiture of the bond and the court has actual knowledge that the
defendant was or is in the custody of the United States pending
deportation from the United States. Changes the period used to assess
late surrender fees against a surety and bail agent. Specifies the late
surrender fee is equal to 80% of the face value of the bond. Provides
that costs resulting from a defendant's failure to appear may not be
assessed against a bail agent or surety. Provides that the court in which
a bond is posted retains late surrender fees instead of the fees being
deposited in police pension trust funds and county extradition funds.
Specifies that the retained fees must be used by a court to defray the
costs of operating the court, extraditing criminal defendants, and
operating diversion programs. Repeals the law establishing county
extradition funds on July 1, 2013.
Effective: Upon passage; July 1, 2013.
January 5, 2011, read first time and referred to Committee on Judiciary.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
A BILL FOR AN ACT to amend the Indiana Code concerning bail.
(1) the court where the defendant is to appear;
(2) the amount of the bail; and
(3) that it was made before an official legally authorized to take the bond.
(b) A surety remains liable on an undertaking despite:
(1) any lack of the surety's qualifications as required by section 4 of this chapter;
(2) any other agreement that is expressed in the undertaking;
(3) any failure of the defendant to join in the undertaking; or
(4) any other defect of form or record, or any other irregularity, except as to matters covered by subsection (a).
(c)
(1) the defendant fails to appear as required; and
(2) the court fails to make an adjudication concerning the defendant, including refusing to extradite the defendant;
during the thirty-six (36) month period.
(d) This section does not apply to cases in which a bond has been declared to be forfeited and the surety and bail agent have been notified as described in section 12 of this chapter.
(1) the court shall:
(A) issue a warrant for the defendant's arrest; and
(B) order the bail agent and the surety to surrender the defendant to the court immediately;
(2) the clerk shall, less than thirty (30) days after the defendant's failure to appear,
(A) the bail agent; and
(B) the surety;
at each of the mailing or electronic mailing addresses indicated in the bonds; and
(3) if the defendant later is arrested or otherwise appears:
(A) the court shall order that the surety be released from the bond; and
(B) after the court issues an order under clause (A), the surety's original undertaking shall be reinstated if the surety files a written request or a request by electronic mail for the reinstatement of the undertaking with the court.
This subsection may not be construed to prevent a court from revoking or resetting bail.
(b) The bail agent or surety must:
(1) produce the defendant; or
(2) prove within
(A) that the appearance of the defendant was prevented:
(i) by the defendant's illness or death;
(ii) because the defendant was at the scheduled time of appearance or currently is in the custody of the United States, a state, or a political subdivision of the United States or a state;
(iii) because the required notice was not given; or
(iv) because authorities have refused to extradite the
defendant, by a preponderance of the evidence; and
(B) the defendant's absence was not with the consent or
connivance of the sureties.
However, if a defendant is arrested before a court enters judgment
on the forfeiture of a bond and the court has actual knowledge that
the defendant was or is in the custody of the United States pending
deportation from the United States, the court shall release the bail
agent and surety from liability from the bond.
(c) If the bail agent or surety does not comply with the terms of
subsection (b) within one hundred twenty (120) eighty (180) days after
the mailing of the notice required under subsection (a)(2) is sent, a late
surrender fee shall be assessed against the bail agent or surety as
follows:
(1) If compliance occurs more than one hundred twenty (120)
days but not more than one hundred eighty (180) days after the
mailing of notice, the late surrender fee is twenty percent (20%)
of the face value of the bond.
(2) If compliance occurs more than one hundred eighty (180) days
but not more than two hundred ten (210) days after the mailing of
notice, the late surrender fee is thirty percent (30%) of the face
value of the bond.
(3) If compliance occurs more than two hundred ten (210) days
but not more than two hundred forty (240) days after the mailing
of notice, the late surrender fee is fifty percent (50%) of the face
value of the bond.
(4) If compliance occurs more than two hundred forty (240) days
but not more than three hundred sixty-five (365) days after the
mailing of notice, the late surrender fee is eighty percent (80%)
of the face value of the bond.
(5) If the bail agent or surety does not comply with the terms of
subsection (b) within three hundred sixty-five (365) days of the
mailing of notice required under subsection (a)(2), the late
surrender fee is in an amount equal to eighty percent (80%) of
the face value of the bond.
All late surrender fees are due as of the date of compliance with
subsection (b) or three hundred sixty-five (365) days after the mailing
of notice required under subsection (a)(2), whichever is earlier, and
shall be paid by the surety when due. If the bail agent or surety fails
to pay, then the late surrender fees shall be paid by the commissioner
as provided in subsection (f).
(d) If the bail agent or surety does not comply with the terms of
subsection (b) within three one hundred sixty-five (365) eighty (180)
days of after the mailing of notice is sent as required by subsection
(a)(2), the court shall declare forfeited an amount equal to twenty
percent (20%) of the face value of the bond. The court shall
immediately enter judgment on the forfeiture, without pleadings and
without change of judge or change of venue. and assess against the bail
agent or surety all actual costs resulting from the defendant's failure to
appear. These costs include jury fees, witness fees, and any other
documented costs incurred by the court.
(e) Proceedings relative to the bond, forfeiture of a bond, judgment
on the forfeiture, execution of judgment, or stay of proceedings shall
be in the court in which the bond was posted. Costs and Late surrender
fee fees assessed against a bail agent or surety under subsection (c)
shall be satisfied without further order of the court as provided in
subsection (f). The court may waive the late surrender fee or extend the
period for payment beyond the statutorily permitted period, or both, if
the following conditions are met:
(1) A written request is filed with the court and the prosecutor.
(2) The surety or bail agent provides evidence satisfactory to the
court that diligent efforts were made to locate the defendant.
(f) In the case of an insurer, if the fees costs, or judgment is not
paid, then the clerk shall mail the notice to the commissioner. The
commissioner shall:
(1) within ten (10) days of receipt of the notice forward a copy by
certified mail to the insurer;
(2) forty-five (45) days after receipt of the notice from the clerk,
if the commissioner has not been notified by the clerk that the
fees or judgment or both have been paid, pay the late surrender
fee assessment costs, and any judgment of forfeiture ordered by
the court from funds the insurer has on deposit with the
department of insurance;
(3) upon paying the assessment costs, and judgment, if any, from
funds on deposit, immediately revoke the license of the insurer,
if the satisfaction causes the deposit remaining to be less than the
amount required by this article; and
(4) within ten (10) days after revoking a license, notify the insurer
and the insurer's agents and the clerk of each county in Indiana of
the revocation and the insurer shall be prohibited from conducting
a bail bond business in Indiana until the deposit has been
replenished.
(g) The notice mailed by the clerk to the commissioner pursuant to
the terms of subsection (f) shall include:
(1) the date on which the defendant originally failed to appear as
provided in the bond;
(2) the date of compliance the bail agent or surety failed to
comply with subsection (b); if compliance was achieved within
three hundred sixty-five (365) days after the mailing of the notice
required by subsection (a)(2);
(3) the amount of the bond;
(4) the dollar amount of the late surrender fee due;
(5) the amount of costs resulting from the defendant's failure to
appear; and
(6) (5) if applicable, the dollar amount of the judgment of
forfeiture entered by the court.
(h) Any surety on a bond may appeal to the court of appeals as in
other civil cases without moving for a new trial, and on the appeal the
evidence, if any, shall be reviewed.
(i) Fifty percent (50%) of The court in which the bond was posted
shall retain the late surrender fees collected under this chapter. shall
be deposited in the police pension trust fund established under
IC 36-8-10-12 and the remaining fifty percent (50%) shall be deposited
in the county extradition fund established under IC 35-33-14. Late
surrender fees retained under this subsection may be used by a
court to defray the costs of:
(1) operating the court;
(2) extraditing criminal defendants; or
(3) operating diversion programs.
(j) Before June 1, 2011, each surety and bail agent shall
establish and maintain an electronic mail address for purposes of
conducting business under this section.
(b) This SECTION expires July 2, 2013.
