N.H. Rev. Stat. § 597:2

Current through the 2024 Legislative

Section 597:2 - Release of a Defendant Pending Trial

I. Except as provided in paragraph III or VI, upon the appearance before the court or magistrate of a person charged with an offense, the court or magistrate shall issue an order that, pending arraignment or trial, the person be:

(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III;

(c) Detained; or

(d) Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph VIII.

II. Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing. The court or magistrate shall issue an order that, pending a probation violation hearing, the person be:

(a) Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b) Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c) Detained.

III. When considering whether to release or detain a person, the court or magistrate shall consider the following issues:

(a) Safety of the public or the defendant.

(1) Except as provided in RSA 597:1-c, a person who is charged with homicide under RSA 630; first degree assault under RSA 631:1; second degree assault under RSA 631:2; felony level domestic violence under RSA 631:2-b; aggravated felonious sexual assault under RSA 632-A:2; felonious sexual assault under RSA 632-A:3; kidnapping under RSA 633:1; felony level stalking under RSA 633:3-a, VI(a); trafficking in persons under RSA 633:7; robbery under RSA 636:1, III; possession, manufacture, or distribution of child sexual abuse images under RSA 649-A; or computer pornography and child exploitation under RSA 649-B; shall not be brought before a bail commissioner and shall, upon arrest, be detained pending arraignment before the court. Arraignment shall occur no later than 24 hours after the arrest. In the case of a person arrested when the court is not open within the next 24 hours, a decision on bail shall be made by a judge or magistrate within 24 hours of the arrest. At the person's appearance before the court or magistrate, the court or magistrate shall order that the person be detained pending trial if the court or magistrate determines by clear and convincing evidence that release of the person is a danger to that person or the public. In determining whether release will endanger the safety of that person or the public, the court or magistrate may consider all relevant and material factors presented pursuant to paragraph IV. If the court or magistrate does not find sufficient evidence that the person must be detained, the court or magistrate shall order the person released pursuant to subparagraph I(a) or subparagraph I(b), or, if applicable, temporarily detained pursuant to subparagraph I(d). A person arrested for violating the conditions of his or her bail for an offense listed in this subparagraph shall be held until they can be brought before the court at the first available date. If at a subsequent hearing, the court finds probable cause exists that the person violated the conditions of his or her bail for any of the crimes listed in this subparagraph, the defendant shall be held pending trial.

(2)

(A) If a person is charged with any other criminal offense, and the court or magistrate determines by clear and convincing evidence that release will endanger the safety of that person or the public, the court or magistrate may:

(i) Order preventive detention without bail;

(ii) Order the defendant to comply with restrictive conditions;

(iii) Order electronic monitoring and supervision where the defendant has been accepted for electronic monitoring and supervision by the county; or

(iv) Any combination thereof.

(B) In determining whether release will endanger the safety of that person or the public, the court or magistrate may consider all relevant factors presented pursuant to paragraph IV.

(b) Assuring the court appearance of charged persons.

(1) The court or magistrate 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 magistrate, 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 or magistrate may require unless the court or magistrate determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required.

(2) If the court or magistrate determines by a preponderance of the evidence that a person has failed to appear on any previous matter charged as a felony, class A misdemeanor, or driving or operating while impaired, or a reasonably equivalent offense in an out-of-state jurisdiction, 3 or more times within the past 3 years, or twice on the present case, there shall be a rebuttable presumption that release will not reasonably assure the appearance of the person as required, and the person shall be detained. At the bail hearing, the defendant shall be permitted to present evidence and the court or magistrate shall decide whether such person has rebutted the presumption that release will not reasonably assure the appearance of the person as required.

(3) In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court or magistrate may consider all relevant factors bearing upon a person's ability to post bail.

(4) The court or magistrate shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition, unless the court or magistrate determines by clear and convincing evidence that the nature of the allegations presents a substantial risk that the person will not appear and that no reasonable alternative will assure the person's appearance. The defendant shall be afforded the opportunity to be heard.

(c) Failure of a person to abide by previous bail conditions. If there is probable cause to believe that, while on release pending resolution of a previous offense, the person committed a felony, class A misdemeanor, or driving or operating while impaired, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense. The court or magistrate shall not impose a financial condition that will result in the pretrial detention of the person solely as a result of that financial condition unless the court or magistrate determines by clear and convincing evidence after a hearing that no reasonable alternative or combination of conditions will assure that the person will not commit a new offense. The court or magistrate may consider any relevant factors in making its determination.

IV.

(a) Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court or magistrate. At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court.

(b) At any subsequent hearing, such testimony may be presented via video conferencing, unless the court determines that witness testimony in court is necessary. A request by the defendant for in-court testimony shall be made by oral motion at the initial hearing or by written motion prior to any subsequent hearing. Any order granting the defendant's request shall be distributed to the parties at least 48 hours prior to any subsequent hearing.

(c) There shall be a rebuttable presumption that an alleged victim of the crime shall not be required to testify at the bail hearing. Nothing in this section shall preclude an alleged victim from voluntarily testifying at such hearing. The state may present evidence of statements made in the course of an investigation through a law enforcement officer.

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).

VII. In a release order issued pursuant to this section, the court or magistrate shall include a written statement that sets forth:

(a) All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and

(b) The provisions of RSA 641:5, relative to tampering with witnesses and informants.

VIII. A person charged with an offense who is, or was at the time the offense was committed, on release pending trial for a felony or misdemeanor under federal or state law, release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law; or probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III, may be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays and holidays. The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state, or local law enforcement official. Upon such notice, the court or magistrate shall direct the clerk to notify by telephone, or other expedient means, the department of corrections, division of field services, of the pending bail hearing. If the department fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial. Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole may be subject to arrest and detention as probation and parole violators.

IX. Upon the appearance of a person charged with a class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines pursuant to paragraph III that such release will endanger the safety of the person or the public. The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

X. A person detained by a circuit court has the right to:

(a) In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and

(b) A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.

XI.

(a) Each county may develop criteria to evaluate and determine whether a person is indigent or not for the purpose of the person's ability to repay the cost of electronic monitoring. Based on the criteria, the county may render a finding of indigent or not for the purpose of the person's ability to repay the costs of electronic monitoring.

(b) If the county finds that the person is not indigent for the purpose of repaying the cost of electronic monitoring, the county may order that the person reimburse the county for payment of the cost of electronic monitoring. The county may extend the time period for repayment in its discretion to allow the person time to make the repayment, except that in no case shall the time period exceed one year from the date the case was closed. The county may seek reimbursement in other ways as determined by the county.

(c) If the county finds that the person is indigent for the purpose of repaying the cost of electronic monitoring, the county may waive the cost of electronic monitoring.

RSA 597:2

Amended by 2024, 317:7, eff. 1/1/2025.

Amended by 2024, 317:2, eff. 1/1/2025.

Amended by 2024, 317:1, eff. 1/1/2025.

Amended by 2020 , 12: 6, eff. 9/14/2020.

Amended by 2020 , 12: 5, eff. 9/14/2020.

Amended by 2019 , 143: 3, eff. 6/25/2019.

Amended by 2019 , 143: 2, eff. 6/25/2019.

Amended by 2019 , 143: 1, eff. 6/25/2019.

Amended by 2018 , 366: 2, eff. 8/31/2018.

Amended by 2015 , 74: 3, eff. 1/1/2016.

Amended by 2015 , 74: 2, eff. 1/1/2016.

Amended by 2015 , 74: 1, eff. 1/1/2016.

Amended by 2011 , 236: 2, eff. 9/3/2011.

1903, 28:1. 1919, 49:1. PL 366 :14. RL 425:14. RSA 597:2. 1969, 78:2. 1989, 386:3. 1992, 269:3, 4. 1993, 258:3, eff. Aug. 14, 1993. 1999, 229:1, eff. Jan. 1, 2000. 2005, 230 : 1 , eff. Jan. 1, 2006. 2006, 214 : 3 , eff. July 31, 2006. 2009, 91 : 1 , eff. Aug. 11, 2009. 2011, 236 : 2 , eff. Sept. 3, 2011. 2015, 74 : 1 -3, eff. Jan. 1, 2016. 2018, 366 : 2 , eff. Aug. 31, 2018. 2019, 143 : 1 -3, eff. June 25, 2019. 2020, 12 : 5 , 6, eff. Sept. 14, 2020.