Senate Bill No. 1161 became effective July 1st, 2007. The new law effects Idaho Code 19-2927, it amends an existing law relating to Surety bail forfeitures. Now 180 days will be given to the surety for the return of the defendant or the remittance of the bail forfeiture to the courts. The stipulation was added that the bail must surrender the defendant to the jail facility of the county which issued the warrant, rather then to any Idaho peace officer. Amendments  have  also  been   made   to  Idaho Criminal Rule 46  which were implemented on July 1st as well (d) The surety shall clearly identify on the bond the name  and mailing address of the person designated to receive all notices. (e)(1) If the defendant fails to appear before the court at the time required as a condition of bail, and the court finds that such failure is without sufficient cause, or where no evidence is presented which would provide sufficient cause, the court  shall immediately ex parte forfeit the bail and issue a bench warrant for the defendant.  (e)(4) The court shall give written notice to the person posting the undertaking bail or, if the bail consists of a surety bond, to the surety or its designated agent of the action taken by the court. Provided that within 7 days of the entry of forfeiture, the court may, for good cause, set aside the forfeiture and reinstate the bail without the consent of the person posting the bail and quash the warrant, if still outstanding. At the time of reinstatement, the court shall provide written notice to the person posting the bail. (5) After the court enters the order forfeiting bail, the clerk must, within 5 days, mail a written notice of forfeiture to the last known address of the person posting the undertaking of bail or, if the bail consists of a surety bond, to the surety or its designated agent. If the defendant does not appear or is not brought before the court within 180 days after the entry of the order forfeiting bail, the clerk, upon receiving payment of the forfeited bail, shall remit such forfeiture to the county auditor for distribution and apportionment as provided by I. C. § 19-4705. (g) Exoneration of bail.  If the defendant appears or is brought before the court within 180 days after the order forfeiting bail, the court shall rescind the order of forfeiture and shall exonerate the bond.

 

ORDER AMENDING CRIMINAL RULE (I.C.R.) 46 

Rule 46. Bail or release on own recognizance.
(a) Bail or release before sentence. A person arrested for an offense not punishable by death shall be admitted to bail or may be released upon defendant's own recognizance at any time before a plea of guilty or verdict of guilty, after which the defendant may be admitted to bail or released on defendant's own recognizance before sentencing in the discretion of the court. A person arrested for an offense punishable by death may be admitted to bail in the exercise of discretion by any magistrate or district court authorized by law to set bail. The determination of whether a person should be released upon defendant's own recognizance or admitted to bail, and the determination of the amount and conditions of bail, if any, can be made after considering any of the following factors:
(1) Defendant's employment status and history, and financial condition. (
(2) The nature and extent of defendant's family relationships.
(3) Defendant's past and present residences.
(4) Defendant's character and reputation.
(5) The persons who agree to assist the defendant in attending court at the proper time.
(6) The nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty. 1
(7) Defendant's prior criminal record, if any, and, if defendant has previously been released pending a trial or hearing, whether defendant appeared as required.
(8) Any facts indicating the possibility of violations of law if defendant is released without restrictions. (9) Any other facts tending to indicate that defendant has strong ties to the community and is not likely to flee the jurisdiction.
(10) What reasonable restrictions, conditions and prohibitions should be placed upon defendant's activities, movements, associations and residences.
(b) Right to bail or release pending appeal. A defendant may be admitted to bail or released upon defendant's own recognizance by the court in which defendant was convicted pending an appeal upon consideration of the factors set forth in subsection (a) of this rule above unless it appears that the appeal is frivolous or taken for delay. Application for admittance to bail or release upon his defendant's own recognizance may be made by a defendant to the appellate court upon a showing in the application that the court in which defendant was convicted has refused to admit defendant to bail or release defendant on defendant's own recognizance.
(c) Terms and prohibitions of bail or release. If a person is admitted to bail or released upon the person's own recognizance, the court making such determination may impose such reasonable terms, conditions and prohibitions as the court finds necessary in the exercise of its discretion. Whenever no contact is ordered pursuant to Idaho Code § 18-920, a no contact order shall be issued in accord with the standards set out in Criminal Rule 46.2. If one of the conditions of bail or release upon the person’s own recognizance is an area of restriction monitored by electronic or global positioning system tracking, then the court shall notify the defendant in writing at the time of the setting of bail or release that intentionally leaving the area of restriction, except for the purpose of obtaining emergency medical care, may be prosecuted as the crime of escape and subject the defendant to the penalties set forth in I.C. § 18-2505 or I.C. § 18-2506.
(d) Bail, form, conditions and place of deposit. In the event the defendant is not released upon the defendant's own recognizance, but is admitted to bail, the court setting the bail shall determine the amount thereof and authorize acceptance of cash, or bonds or notes of the United States, in an amount equal to the bail set by the court which shall be deposited with the clerk of the court setting the bail as security for the agreement of the defendant to appear at a specified time and place ordered by the court. The court may also, as a condition of release, require an agreement to comply with other terms and conditions of release. A bail bond issued by a corporate surety qualified by law to do business in the state of Idaho may be given as security, in lieu of cash or bonds or notes of the United States. The surety shall clearly identify on the bond the name 2 and mailing address of the person designated to receive all notices. The court shall not require that bail be posted only in cash, nor shall the court specify differing amounts for bail depending upon whether it is posted in cash, or in bonds or notes of the United States, or by corporate surety. Personal sureties on a bail bond shall be permitted with the approval of the court, and the general form of the surety bond and justification of sureties shall be as provided in Title 19, Chapter 29, Idaho Code. Provided, bail may be posted by depositing a cashier's check, money order, or a personal check payable to the clerk of the court under such procedures as shall be established by the administrative district judge, or where acceptance of the personal check has been approved by a magistrate or a district judge. When issuing a warrant of attachment for contempt regarding the nonpayment of any sum ordered by the court, the court may endorse upon the warrant that upon payment of a specified sum of money, not exceeding the amount owing, the contempt will be purged, the defendant shall be released, and the defendant need not appear in court in the contempt proceeding.
(e) Forfeiture and enforcement of bail bond. The court which set the amount of a bail bond may order the forfeiture and enforcement of the bail bond in any of the following manners:
(1) In the event the defendant fails to appear before the court at the time required as a condition of bail, and the court finds that such failure is without sufficient cause, or where no evidence is presented which would provide sufficient cause, the court shall immediately ex parte forfeit the bail and may issue a bench warrant for the defendant.
(2) Upon a verified application of the prosecuting attorney alleging that a person has willfully violated conditions of the person's release on bail, other than failure to appear, the court may issue a warrant directing that the person be arrested and brought before the court for hearing, or the court may order the person to appear before the court at a time certain.
(3) Upon a bail revocation hearing, at which the defendant shall appear if the person can be found, if the court finds that there has been a willful breach of conditions of bail, and if the defendant is present before the court, it may revoke the bail and remand the bailed person to the custody of the sheriff, and may at any time thereafter reconsider the issue of bail and may set new bail and impose other or additional conditions of release.
(4) The court which has forfeited bail before remittance of the forfeiture may direct that the forfeiture be set aside upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. If the court sets aside the forfeiture, it may, with the written consent of the person posting the bail, reinstate the bail, or the court may exonerate the bail, or the court may recommit the defendant 3 to the custody of the sheriff and set new bail or may release the defendant on his or her own recognizance. The court shall give written notice to the person posting the  bail or, if the bail consists of a surety bond, to the surety or its designated agent of the action taken by the court. Provided that within seven (7) days of the entry of forfeiture, the court may, for good cause, set aside the forfeiture and reinstate the bail without the consent of the person posting the bail and quash the bench warrant, if still outstanding. At the time of such reinstatement, the court shall provide written notice to the person posting the bail, or, if the bail consists of a surety bond, to the surety or its designated agent.
(5) After the court enters the order forfeiting bail, the clerk must, within five (5) days, mail a written notice of forfeiture to the last known address of the person posting the undertaking of bail or, if the bail consists of a surety bond, to the surety or its designated agent. If the defendant does not appear or is not brought before the court within one hundred eighty (180) days after the entry of the order forfeiting bail, the clerk, upon receiving payment of the forfeited bail, shall remit such forfeiture to the county auditor for distribution and apportionment as provided by I. C. § 19-4705. 
(f) Readmittance to bail. After the order of recommitment of a defendant the court may again determine the amount of bail and order that the defendant be admitted to bail in the sum determined and released upon such conditions and prohibitions as the court determines in its discretion. 
(g) Exoneration of bail. When the conditions of bail have been satisfied, or if the clerk fails to mail a written notice to the person posting the undertaking of the bail or, if the bail consists of a surety bond, to the surety or its designated agent within five (5) days of the order of forfeiture, the court shall then discharge the bail, exonerate sureties, and release any cash bonds or property deposited with the court. If the defendant appears or is brought before the court within one hundred eighty (180) days after the order forfeiting bail, the court shall rescind the order of forfeiture and shall exonerate the bond.
(h) Increasing or reducing bail. (1) The court before which a case is pending may, after a defendant has been admitted to bail, increase or reduce the amount of bail. Upon application of the prosecuting attorney for an increase in bail, the court shall order the defendant to appear for a hearing on the application. The court shall also notify the person posting the undertaking of the date and time of the hearing. If the defendant fails to appear at the hearing after being properly notified of the date and the time of said hearing, the court shall, absent evidence of sufficient excuse for his absence, immediately forfeit the bail and may issue a warrant for arrest of the defendant. (2) Upon application of the defendant, and timely notice to the prosecuting attorney of said application, the court may reduce the existing bail, in its discretion. If the court finds good cause to reduce the bail of the defendant, the court may enter such an order and may, with the written 4 consent of the person posting the undertaking, continue the defendant on the original undertaking, with the court record properly reflecting the reduced amount of the bail obligation. If the person posting the undertaking refuses such consent, the court may reduce the amount of the bond only by requiring the defendant to surrender himself to the custody of the sheriff and posting a new bond in the reduced amount. The court's order shall reflect that upon such surrender, the original undertaking shall be exonerated.

 

 

 

 

I. Applicable Statutes

A. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL.

B. Idaho Criminal Rules (I.C.R.), Rule 46 MICHIE’S IDAHO COURT RULES IDAHO CRIMINAL RULES Rules 46.

II. Licensing Requirements for Agents

A. Idaho’s statutes currently do not contain regulations for regarding the licensing of bail bond recovery or bail enforcement agents. The closest equivalent in the ID statutes to these positions is "bail."

B. IDAHO CODE TITLE 8. PROVISIONAL REMEDIES IN CIVIL ACTIONS CHAPTER 1. ARREST AND BAIL 8-117 Qualifications of bail.

1. Each of them must be resident and householder or freeholder within the state.
2. Each must be worth the amount specified in the order of arrest, or the amount to which the order is reduced, as provided in this chapter, over and above all his liabilities, exclusive of property exempt from execution; but the judge, on justification, may allow more than two (2) sureties to justify severally in amounts less than expressed in the order, if the whole justification be equivalent to that of two (2) sufficient bail.

III. Notice of Forfeiture

A. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2927 Forfeiture of bail.

1. If, without sufficient excuse, the defendant neglects to appear before the court upon any occasion when this presence has been ordered the court must immediately direct the fact to be entered upon its minutes, order the forfeiture of the undertaking of bail or the money deposited instead of bail, as the case may be, and order the issuance of a bench warrant for the arrest of the defendant.

2. The clerk shall mail written notice within five (5) days of the forfeiture for failure to appear to the last known address of the person posting the undertaking of bail. A failure to give timely notice shall exonerate the bail or undertaking.

3. The court which has forfeited the undertaking of bail, or the money deposited instead of bail, may, before remittance of the forfeiture, and with the written consent of the person posting the same, set aside the forfeiture and reinstate the undertaking of bail or money deposited instead of bail.

B. Idaho Criminal Rules (I.C.R.), Rule 46 MICHIE’S IDAHO COURT RULES IDAHO CRIMINAL RULES. Rules 46. Bail or release on own recognizance.

After the court enters the order forfeiting bail, the clerk must, within five (5) days, mail a written notice of forfeiture to the last known address of the person posting the undertaking of bail.

C. Court decisions

State v. Rocha, 131 Idaho 113, 952 P. 2d 1249 (Ct App. 1998).

1. Once proper notice is given and a surety fails to remit the forfeited bail bond, the prosecuting attorney may proceed under this section for enforcement of the forfeited bond.

2. There is no provision in the state code or criminal rules authorizing the enforcement of a bail bond forfeiture without the necessity of an independent action.

Allotted Time between Forfeiture Declaration and Payment Due Date.

A. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2927 Forfeiture of bail.

1. If at any time within ninety (90) days after entry of forfeiture, the defendant appears and satisfactorily excuses his neglect, the court shall direct the forfeiture of the undertaking or the deposit to be exonerated.

2. If within ninety (90) days of the date of forfeiture, a person, other than the defendant, who has provided bail for the defendant, surrenders the defendant to any Idaho peace officer, the undertaking of bail or deposits are thereby exonerated.

3. The court which has forfeited the undertaking of bail, or the money deposited instead of bail, may, before remittance of the forfeiture, and with the written consent of the person posting the same, set aside the forfeiture and reinstate the undertaking of bail or money deposited instead of bail.

B. Idaho Criminal Rules (I.C.R.), Rule 46 MICHIE’S IDAHO COURT RULES IDAHO CRIMINAL RULES Rules 46. Bail or release on own recognizance.

If the defendant does not appear or is not brought before the court within ninety (90) days after the entry of the order forfeiting bail, the clerk, upon receiving payment of the forfeited bail, shall remit such forfeiture to the county auditor for distribution and apportionment.

C. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2928 Enforcement of forfeiture.

If the forfeiture is not discharged, as provided in the last section, the prosecuting attorney may, at any time after ninety (90) days from the entry upon the minutes, as provided in the last section, proceed by action in the name of the county, against the bail upon their undertaking.

V. Forfeiture Defenses

A. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2927 Forfeiture of bail.

The clerk shall mail written notice within five (5) days of the forfeiture of failure to appear to the last known address of the person posting the undertaking of bail. A failure to give timely notice shall exonerate the bail or undertaking.

B. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2927 Surrender of defendant by bail.

At any time before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the officer in whose custody he was committed at the time of giving bail, or to the county sheriff where the action is pending, in the following manner:

1. A certificate of surrender, executed by the bail, must be delivered to the officer, who must also attach thereto his signature, the month, day, year and time of day as evidence of surrender and detain the defendant in his custody thereon as upon a commitment. The certificate of surrender shall contain the legal caption of the action in which the undertaking was given, including the name of the defendant, case number, name and address of the bail, and shall clearly state that the bond is being revoked by the bail.

2. The receiving officer shall, the next judicial day, file with the court in which the action or appeal is pending the certificate of surrender, and shall deliver a copy of the same to the county prosecuting attorney. The court shall thereupon order the bail be exonerated.

C. Idaho Criminal Rules (I.C.R.), Rule 46 MICHIE’S IDAHO COURT RULES IDAHO CRIMINAL RULES Rule 46. Bail or release on own recognizance.

1. The court which has forfeited bail before remittance of the forfeiture may direct that the forfeiture be set aside upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture.

2. Exoneration of bail. When the conditions of bail have been satisfied, or if the clerk fails to mail a written notice to the person posting the undertaking of the bail within five (5) days of the order of forfeiture, the court shall then discharge the bail, exonerate sureties, and release any cash bonds or property deposited with the court.

3. If the defendant appears or is brought before the court within ninety (90) days after the order forfeiting bail, the court shall rescind the order of forfeiture and shall exonerate the bond.

VI. Remission

No specific provisions exist in the ID statutes at this time in regard to "remission".

VII. Bail Agent’s Arrest Authority

A. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2924 Surrender of defendant by bail.

At any time before the forfeiture of their undertaking, the bail may surrender the defendant.

B. IDAHO CODE TITLE 19. CRIMINAL PROCEDURE CHAPTER 29. BAIL 19-2906 Nature of bail.

If the offense is bailable, the defendant may be admitted to bail before conviction; or after indictment, upon his being surrendered by his bail to answer the indictment in the court in which it is found, or to which it may be transferred for trial.

VIII. Other Noteworthy Provisions

A. IDAHO CODE TITLE 18. CRIMES AND PUNISHMENTS CHAPTER 30. FALSE PERSONATION – FRAUDULENT MARRIAGES 18-3001 False personation.

Every person who falsely personates another, and in such assumed character, either:

1. Becomes bail or surety for any party in any proceeding whatever, before any court or officer authorized to take such bail or surety; or

2. Is punished by imprisonment in the county jail not exceeding two (2) years, or by a fine not exceeding $5,000.

B. Court decisions

State v. Rupp, 123 Idaho 1, 843 P.2d 151 (1992). --Bondsman’s Liability.

The terms of an appellate bail bond read into the record extended bondsman’s liability on the bond until defendant appears before the trial court on remand.

IX. Noteworthy State Appellate Decisions

A. State v. Abracadabra Bail Bonds
131 Idaho 113
952 P.2d 1249
Idaho Appellate Court
Jan. 07, 1998

Bonding company appealed from orders of the District Court, Canyon County, Sergio A. Gutierrez, J., which denied motion for exoneration of bail bond, held company in comtempt for failure to pay forfeited bond and revoked its privilege to business in district, and sanctioned its attorney for filing repetitive motions. The Court of Appeals, Perry, J., held that:
(1) magistrate did not abuse his discretion in failing to forfeit bond on defendant’s first nonappearance when presented with sufficient excuse for nonappearance;
(2) five-day period for giving notice to surety did not begin to run until bond was subsequently forfeited when defendant failed to appear for arraignment on superseding indictment;
(3) district court was without authority to enforce payment of bond forfeiture under penalty of contempt;
(4) bonding company’s contractual liability to pay forfeited bond was enforceable only through separate civil proceeding; and
(5) bonding company was not aggrieved party entitled to appeal sanctions imposed upon its attorney. Affirmed in part; reversed in part.

B. State v. Rocha
131 Idaho 113,
952 P. 2d 1249
(Ct. App. 1998)

Bail bondsman contractual obligation to pay forfeited bond was a civil liability enforceable by the prosecuting attorney in a separate civil action, and district court was without authority to enforce payment of the bond forfeiture under the penalty of contempt.

C. State v. Rupp
123 Idaho 1,
843 P.2d 151
(1992)

The trial court did not abuse its discretion in ruling that defendant’s alleged fraud in obtaining an appellate bail bond was not a ground for setting aside the forfeiture of the bond and denying bondsman’s motion to exonerate the bond under subdivision (e)(4) of this rule.

D. State v. Fry
128 Idaho 50,
910 P.2d 164
(Ct. App. 1994)

1. While it has long been held in Idaho that matters such as the fixing of bail and the release from custody are within the discretion of the court, the forfeiture of a bond or the setting aside of such a forfeiture are also discretionary decisions within the realm of the district court.

2. In deciding how much, if any, of the bond to forfeit, when defendant fails to appear before the court, the court should also consider:
a. the willfulness of the defendant’s violation of bail conditions;
b. the surety’s participation in locating and apprehending the defendant;
c. the costs, inconvenience, and prejudice suffered by the state as a result of the violation;
d. any intangible costs;
e. the public’s interest in ensuring a defendant’s appearance; and
f. any mitigating factors.

3. The incarceration of a defendant in another jurisdiction, which prevented him from appearing before the court, is only one fact to be considered by the district court in making its discretionary decision whether to forfeit the bond; the court should also consider whether the incarceration arises from a new crime committed while the defendant was free on bond or from an offense that preceded his arrest.