Bill Text: IN SB0253 | 2011 | Regular Session | Amended
Bill Title: Bail.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2011-01-18 - Senator Waterman added as first author [SB0253 Detail]
Download: Indiana-2011-SB0253-Amended.html
Citations Affected: IC 27-10; IC 35-33.
Synopsis: Bail. Provides that every surety for the release on bail of a
person who executes a bail bond by depositing cash or securities in an
amount not less than 10% of the bail must be: (1) an insurer
represented by a bail agent; or (2) a person who is at least 18 years of
age, a United States citizen, a resident of Indiana, related to the person
for whom release on bail is sought within the third degree of affinity,
and the owner of real or tangible personal property in Indiana with a
net asset value that is acceptable to the authority approving the bond.
Requires a court to waive a late surrender fee assessed against a bail
agent or surety, or extend the period for payment beyond the statutorily
permitted period, or both, if: (1) a written request is filed with the court
and the prosecutor; and (2) the surety or bail agent provides evidence
satisfactory to the court that diligent efforts were made to locate the
defendant. Specifies that 40% of the late surrender fees collected under
the Indiana bail law must be deposited in the police pension trust fund,
40% must be deposited in the county extradition fund, and the
remaining 20% must be deposited in the county supplemental public
defender services fund.
Effective: July 1, 2011.
January 6, 2011, read first time and referred to Committee on Rules and Legislative
Procedure.
January 18, 2011, amended; reassigned to Committee on Judiciary.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(1) an insurer as defined and meeting the qualifications prescribed in IC 27-1-5-1, and represented by a bail agent as defined in and meeting the qualifications prescribed in this article; or
(2) a person who:
(A) has reached the age of eighteen (18) years;
(B) is a citizen of the United States;
(C) has been a bona fide resident of Indiana for at least one (1) year immediately preceding the execution of the bond;
(D) is related to the person for whom release on bail is sought within the third degree of affinity; and
(E) owns real or tangible personal property in Indiana with a net asset value that is acceptable to the proper authority approving the bond.
(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, mail notice of the order to both:
(A) the bail agent; and
(B) the surety;
at each of the 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 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 three hundred sixty-five (365) days:
(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.
(c) If the bail agent or surety does not comply with the terms of subsection (b) within one hundred twenty (120) days after the mailing of the notice required under subsection (a)(2), 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 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 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 hundred sixty-five (365) days of the mailing
of notice 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 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 shall 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 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) 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)
forty percent (50%) (40%) shall be deposited in the county extradition
fund established under IC 35-33-14, and the remaining twenty
percent (20%) shall be deposited in the county supplemental public
defender services fund established under IC 33-40-3-1.
(1) Require the defendant to:
(A) execute a bail bond with sufficient solvent sureties;
(B) deposit cash or securities in an amount equal to the bail;
(C) execute a bond secured by real estate in the county, where thirty-three hundredths (0.33) of the true tax value less encumbrances is at least equal to the amount of the bail;
(D) post a real estate bond; or
(E) perform any combination of the requirements described in clauses (A) through (D).
If the court requires the defendant to deposit cash or cash and another form of security as bail, the court may require the defendant and each person who makes the deposit on behalf of the defendant to execute an agreement that allows the court to retain all or a part of the cash to pay publicly paid costs of representation and fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted. The defendant must also pay the fee required by subsection (d).
(2) Require the defendant or a surety qualified under IC 27-10-2-4 to execute:
(A) a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail; and
(B) an agreement that allows the court to retain all or a part of the cash or securities to pay fines, costs, fees, and restitution that the court may order the defendant to pay if the defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of the monetary value of the deposit or fifty dollars ($50), whichever is the lesser amount, may be retained as an administrative fee. The clerk shall also retain from the deposit under this subdivision
fines, costs, fees, and restitution as ordered by the court, publicly
paid costs of representation that shall be disposed of in
accordance with subsection (b), and the fee required by
subsection (d). In the event of the posting of a real estate bond,
the bond shall be used only to insure the presence of the
defendant at any stage of the legal proceedings, but shall not be
foreclosed for the payment of fines, costs, fees, or restitution. The
individual posting bail for the defendant or the defendant
admitted to bail under this subdivision must be notified by the
sheriff, court, or clerk that the defendant's deposit may be
forfeited under section 7 of this chapter or retained under
subsection (b).
(3) Impose reasonable restrictions on the activities, movements,
associations, and residence of the defendant during the period of
release.
(4) Except as provided in section 3.6 of this chapter, require the
defendant to refrain from any direct or indirect contact with an
individual and, if the defendant has been charged with an offense
under IC 35-46-3, any animal belonging to the individual,
including if the defendant has not been released from lawful
detention.
(5) Place the defendant under the reasonable supervision of a
probation officer, pretrial services agency, or other appropriate
public official. If the court places the defendant under the
supervision of a probation officer or pretrial services agency, the
court shall determine whether the defendant must pay the pretrial
services fee under section 3.3 of this chapter.
(6) Release the defendant into the care of a qualified person or
organization responsible for supervising the defendant and
assisting the defendant in appearing in court. The supervisor shall
maintain reasonable contact with the defendant in order to assist
the defendant in making arrangements to appear in court and,
where appropriate, shall accompany the defendant to court. The
supervisor need not be financially responsible for the defendant.
(7) Release the defendant on personal recognizance unless:
(A) the state presents evidence relevant to a risk by the
defendant:
(i) of nonappearance; or
(ii) to the physical safety of the public; and
(B) the court finds by a preponderance of the evidence that the
risk exists.
(8) Require a defendant charged with an offense under IC 35-46-3
to refrain from owning, harboring, or training an animal.
(9) Impose any other reasonable restrictions designed to assure
the defendant's presence in court or the physical safety of another
person or the community.
(b) Within thirty (30) days after disposition of the charges against
the defendant, the court that admitted the defendant to bail shall order
the clerk to remit the amount of the deposit remaining under subsection
(a)(2) to the defendant. The portion of the deposit that is not remitted
to the defendant shall be deposited by the clerk in the supplemental
public defender services fund established under IC 33-40-3.
(c) For purposes of subsection (b), "disposition" occurs when the
indictment or information is dismissed or the defendant is acquitted or
convicted of the charges.
(d) Except as provided in subsection (e), the clerk of the court shall:
(1) collect a fee of five dollars ($5) from each bond or deposit
required under subsection (a)(1); and
(2) retain a fee of five dollars ($5) from each deposit under
subsection (a)(2).
The clerk of the court shall semiannually remit the fees collected under
this subsection to the board of trustees of the public employees'
retirement fund for deposit in the special death benefit fund. The fee
required by subdivision (2) is in addition to the administrative fee
retained under subsection (a)(2).
(e) With the approval of the clerk of the court, the county sheriff
may collect the bail posted under this section. The county sheriff shall
remit the bail to the clerk of the court by the following business day
and remit monthly the five dollar ($5) special death benefit fee to the
county auditor.
(f) When a court imposes a condition of bail described in subsection
(a)(4):
(1) the clerk of the court shall comply with IC 5-2-9; and
(2) the prosecuting attorney shall file a confidential form prescribed
or approved by the division of state court administration with the
clerk.
