Report Title:

Bail; Apprehension of Fugitives; Surrender

Description:

Regulates the conduct of persons who apprehend bail fugitives. Establishes qualifications. Establishes requirements and prohibits certain practices for fugitive apprehension. Establishes penalty for violations. Permits surrender of a defendant by a bail agent only if the defendant has violated a condition of bail or if he remains incarcerated for offenses other than the subject of the surety. (HB3014 HD1)

HOUSE OF REPRESENTATIVES

H.B. NO.

3014

TWENTY-THIRD LEGISLATURE, 2006

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO BAIL.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that bail and bail agents provide an extraordinarily valuable service to law enforcement and accused persons alike. The bail clause of the Eighth Amendment of the United States Constitution embodies the long-standing Anglo-American tradition that favors pretrial release of accused persons. Pretrial release on bail frees up crowded jail space and permits defendants to participate more fully in their defense. Bail agents, backed by surety insurance companies, make possible the pretrial release of more than two million defendants annually, at no expense to the taxpayers, by providing assurances that people charged with crimes will appear as scheduled to answer those charges.

The legislature also finds that persons authorized to apprehend bail fugitives have very broad common law powers to arrest a person. To protect against abuses, many states have enacted laws regulating the conduct of persons who apprehend bail fugitives. Four states have banned the practice outright, twelve others require licenses, and others restrict certain types of conduct.

The purpose of this Act is to regulate the conduct of persons who apprehend bail fugitives. This Act is primarily directed towards presently unregulated bail fugitive recovery persons. However, this Act is intended to also reach bail agents who are already regulated in other aspects. This Act also requires the discharge of surety only after a breach of one or more conditions of bail set forth in sections 804-7.1 and 804-7.4, Hawaii Revised Statutes, or if the defendant remains incarcerated for offenses other than the subject of the surety.

SECTION 2. Chapter 804, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . BAIL FUGITIVE APPREHENSION

§804-A Definitions. As used in this part, unless a different meaning is required:

"Bail agent" means a person who represents a surety who provides bail bond insurance as defined under section 431:1-210.

"Bail fugitive" means a defendant in a pending criminal case who has been released from custody under a financially secured appearance, cash, or other bond and has had that bond declared forfeited, or a defendant in a pending criminal case who has violated a bond condition whereby apprehension and re-incarceration are permitted.

"Bail fugitive recovery person" means:

(1) A person who is provided written authorization by the bail agent or depositor of bail, and is contracted to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, correctional facility, or police department; or

(2) A person who is employed to assist a bail agent or depositor of bail to investigate, surveil, locate, and arrest a bail fugitive for surrender to the appropriate court, correctional facility, or police department.

"Depositor of bail" means a person or entity that has deposited money or bonds to secure the release of a person charged with a crime or offense.

"Law enforcement officer" has the same meaning as in section 710-1000.

§804-B Bail fugitive apprehension; qualifications. (a) No person, other than a law enforcement officer, shall be a person authorized to apprehend a bail fugitive, nor be allowed to arrest a defendant unless the person is:

(1) A bail agent;

(2) A depositor of bail;

(3) A private investigator licensed in the state of Hawaii; or

(4) A bail fugitive recovery person who complies with the following:

(i) Be at least twenty-one years of age;

(ii) Have no felony conviction within the last ten years;

(iii) Register with the attorney general;

(iv) Submit to fingerprinting and background checks; and

(v) Comply with all laws while apprehending a bail fugitive.

(b) Upon registration with the attorney general, bail fugitive recovery persons shall carry on the person at all times in the course of performing the person's duties under this part, photographic identification cards attesting to registration. The attorney general shall be responsible for registration and issuing identification cards.

§804-C Bail fugitive apprehension; documentation required. Before apprehending a bail fugitive, a bail fugitive recovery person authorized to apprehend a bail fugitive shall have in the person's possession proper documentation of authority to apprehend issued by the bail agent or depositor of bail. The document conferring authority to apprehend the bail fugitive shall include the following:

(1) The name of the individual authorized to apprehend a bail fugitive and any fictitious name, if applicable;

(2) The address of the principal office of the individual authorized to apprehend a bail fugitive; and

(3) The name and principal business address of the bail agency, surety company, or other party contracting with the person authorized to apprehend a bail fugitive.

At the time of surrendering the fugitive to the custody of the chief of police, the chief's authorized subordinate or public safety officer, the person authorized to apprehend a bail fugitive shall produce satisfactory documentation asserting that the surrendered person is a bail fugitive. The chief of police and the director of public safety shall designate the sites where surrender may occur. The police may refuse to accept surrender if proper identification and documentation are not presented.

§804-D Bail fugitive apprehension; prohibited acts. A person authorized to apprehend a bail fugitive shall not:

(1) Represent the person in any manner as being a sworn law enforcement officer or wear a badge or uniform that a reasonable person might believe are those of a government agency;

(2) Represent that documentation of authority to apprehend issued by the bail agent or depositor of bail is an arrest or search warrant or other document that a reasonable person might believe was issued by a government entity; or

(3) Enter an occupied residential structure without the consent of the occupants who are present at the time of the entry.

§804-E Bail fugitive apprehension; notice to police. An individual authorized to apprehend a bail fugitive, prior to but not more than three hours before attempting to apprehend the bail fugitive, shall notify the county police department of the intent to apprehend a bail fugitive in that jurisdiction by:

(1) Indicating the name of the individual authorized to apprehend a bail fugitive in the jurisdiction; and

(2) Stating the name and approximate location of the bail fugitive.

For the purposes of this section, notice may be provided to a police department by telephone prior to the arrest.

§804-F Penalty. Any person who violates sections 804-B to 804-E or who hires an individual to apprehend a bail fugitive, knowing that the individual is not authorized by section 804-B to apprehend a bail fugitive, shall be guilty of a misdemeanor.

§804-G Administration. This part shall be administered by the attorney general. The attorney general may adopt rules under chapter 91 to implement this part."

SECTION 3. Section 804-14, Hawaii Revised Statutes, is amended to read as follows:

"§804-14 Discharge of sureties. Those who may have become bail for anyone, may [at any time] discharge themselves, by surrendering [him] the defendant to the custody of any [sheriff or] chief of police [or his], the chief's authorized subordinate[.], or a public safety officer vested with arrest powers pursuant to section 353C-4(a) only after a breach of one or more conditions of bail as set forth in sections 804-7.1 and 804-7.4, or if the defendant becomes incarcerated for offenses other than the subject of surety."

SECTION 4. Section 804-41, Hawaii Revised Statutes, is amended to read as follows:

"§804-41 Discharge of surety. [At any time before the breach of the condition of the bond, the] A surety may discharge oneself by surrendering the principal into the hands of any [sheriff or the] chief of police [or the sheriff's or], the chief's authorized subordinate[.], or a public safety officer vested with arrest powers pursuant to section 353C-4(a) only after a breach of one or more conditions of bail as set forth in sections 804-7.1 and 804-7.4, or if the defendant becomes incarcerated for offenses other than the subject of surety."

SECTION 5. If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act, which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. In codifying the new part added to chapter 804, Hawaii Revised Statutes, by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on January 1, 2007.