IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO CrR 3.2, CrR 3.2.1, CrRLJ 3.2 and CrRLJ 3.2.1

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ORDER NO. 25700-A-721

     The Minority and Justice Commission and the Board for Judicial Administration having recommended the adoption of the proposed amendments to CrR 3.2, CrR 3.2.1, CrRLJ 3.2 and CrRLJ 3.2.1, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in January 2002 in the Washington Reports, Washington Register, Washington State Bar Association and the Administrative Office of the Courts' websites.

     (b) The purpose statement as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2002. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 6th day of December 2001.

	Gerry L. Alexander
	CHIEF JUSTICE

     The Supreme Court Rules Committee, in turn, sent the proposed change to the Superior Court Judges' Association and the WSBA Court Rules and Procedures Committee for prepublication comment. The WSBA formed a subcommittee to study the proposed change to CrR 3.2 and its companion courts of limited jurisdiction rule, CrRLJ 3.2. The SCJA did not take a position on the merits of the proposed court rule change but rather sent it to the Board for Judicial Administration (BJA) for comment.

     In the spring of 2001, the BJA established a subcommittee to study the proposed changes to CrR 3.2 and CrRLJ 3.2. The subcommittee members were representatives from the Minority and Justice Commission, judges from the Superior Courts and courts of limited jurisdiction and the WSBA. The subcommittee met during the summer of 2001 to review proposed changes to CrR 3.2 and CrRLJ 3.2 and other rules impacted by these changes.

     The proposed amendments to CrR 3.2 change the structure of the rule to clarify it. Part of the structural reorganization is to separate out the three broad issues a judge is directed to consider for pretrial release; that is, whether the accused is likely to appear at future hearings, whether there is a likely danger that the accused will commit a violent crime, and whether the accused will seek to intimidate witnesses or otherwise interfere with the administration of justice.

     A new sentence is added at the beginning of the rule to highlight that if probable cause is not found the accused shall be released without conditions.

     The amendment to section (a) deletes language relating to how probable cause is determined. That language has been moved to CrR 3.2.1(b) where it is more appropriately covered.

     The amendment to section (b)(6) adds electronic monitoring as an option for conditions for pretrial release. The final sentence of this section provides that if a court determines that a bond is necessary to secure future appearance, the court shall consider the accused's financial resources in setting the bond. A similar provision is included at section (d) when the bond is set after there has been a showing there is a substantial danger the accused will commit a violent crime, seek to intimidate a witness, or otherwise unlawfully interfere with the administration of justice.

     The amendments to section (c) add additional factors for a court to consider when determining whether the accused will appear in court in the future.

     No amendments are suggested for existing sections (d) through (m) except to renumber them to conform to the suggested changes to CrR 3.2.

     (a) Presumption of Release in Noncapital Cases.

     Any person, other than a person charged with a capital offense, shall at the preliminary appearance or reappearance pursuant to rule 3.2.1 or CrRLJ 3.2.1 be ordered released on the accused's personal recognizance pending trial unless:

     (1) the court determines that such recognizance will not reasonably assure the accused's appearance, when required, or

     (2) if there is shown a likely danger that the accused:

     (a) will commit a violent crime, or that the accused

     (b) will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice.

     For the purpose of this rule, "violent crimes" are not limited to crimes defined as violent offenses in RCW 9.94A.030.

     In making the determination herein, the court shall, on the available information, consider the relevant facts including, but not limited to, those in subsections (c) and (e) of this rule.      If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Sworn testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part.

     (b) Showing of Likely Failure to Appear -- Least Restrictive Conditions of Release. If the court determines that the accused is not likely to appear if released on personal recognizance, Tthe court shall impose the least restrictive of the following conditions that will reasonably assure that the accused will be present for later hearings, will not significantly interfere with the administration of justice and not pose a substantial danger to others or the community or, if no single condition gives that assurance, any combination of the following conditions:

     (1) Place the accused in the custody of a designated person or organization agreeing to supervise the accused;

     (2) Place restrictions on the travel, association, or place of abode of the accused during the period of release;

     (3) Require the execution of an unsecured bond in a specified amount;

     (4) Require the execution of a bond in a specified amount and the deposit in the registry of the court in cash or other security as directed, of a sum not to exceed 10 percent of the amount of the bond, such deposit to be returned upon the performance of the conditions of release or forfeited for violation of any condition of release;

     (5) Require the execution of a bond with sufficient solvent sureties, or the deposit of cash in lieu thereof;

     (6) Require the accused to return to custody during specified hours or to be placed on electronic monitoring, if available; or

     (7) Impose any condition other than detention deemed reasonably necessary to assure appearance as required, assure noninterference with the trial and reduce danger to others or the community.

     If the court determines that the accused must post a secured or unsecured bond, the court shall consider, on the available information, the accused's financial resources for the purposes of setting a bond that will reasonably assure the accused's appearance.

     (bc) Relevant Factors -- Future Appearance. In determining which conditions of release will reasonably assure the accused's appearance and noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to:

     (1) the length and character of the accused's residence in the community tThe accused's history of response to legal process, particularly court orders to personally appear;

     (2) tThe accused's employment status and history, and financial condition enrollment in an educational institution or training program, participation in a counseling or treatment program, performance of volunteer work in the community, participation in school or cultural activities or receipt of financial assistance from the government;

     (3) tThe accused's family ties and relationships;

     (4) tThe accused's reputation, character and mental condition;

     (5) the accused's history of response to legal process tThe length of the accused's residence in the community;

     (6) tThe accused's criminal record;

     (7) tThe willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;

     (8) tThe nature of the charge, if relevant to the risk of nonappearance;

     (9) aAny other factors indicating the accused's ties to the community.; the accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice; whether or not there is evidence of present threats or intimidation directed to witnesses; the accused's past record of committing offenses while on pretrial release, probation or parole; and the accused's past record of use of or threatened use of deadly weapons or firearms, especially to victims or witnesses.

     (ed) Showing of Substantial Danger -- Conditions of Release. Upon a showing that there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice, the court may impose one or more of the following nonexclusive conditions:

     (1) Prohibit the accused from approaching or communicating in any manner with particular persons or classes of persons;

     (2) Prohibit the accused from going to certain geographical areas or premises;

     (3) Prohibit the accused from possessing any dangerous weapons or firearms, or engaging in certain described activities or possessing or consuming any intoxicating liquors or drugs not prescribed to the accused;

     (4) Require the accused to report regularly to and remain under the supervision of an officer of the court or other person or agency;

     (5) Prohibit the accused from committing any violations of criminal law;

     (6) Require the accused to post a secured or unsecured bond or deposit cash in lieu thereof, conditioned on compliance with all conditions of release. This condition may be imposed only if no less restrictive condition or combination of conditions would reasonably assure the safety of the community or the appearance of the defendant. If the court determines under this section that the accused must post a secured or unsecured bond, the court shall consider, on the available information, the accused's financial resources for the purposes of setting a bond that will reasonably assure the safety of the community and prevent the defendant from intimidating witnesses or otherwise unlawfully interfering with the administration of justice.

     (7) Place the accused in the custody of a designated person or organization agreeing to supervise the accused;

     (8) Place restrictions on the travel, association, or place of abode of the accused during the period of release;

     (9) Require the accused to return to custody during specified hours or to be placed on electronic monitoring, if available; or

     (10) Impose any condition other than detention to assure noninterference with the administration of justice and reduce danger to others or the community.

     (eb) Relevant Factors -- Showing of Substantial Danger. In determining which conditions of release will reasonably assure the accused's appearance and noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to: the length and character of the accused's residence in the community; the accused's employment status and history and financial condition; the accused's family ties and relationships; the accused's reputation, character and mental condition; the accused's history of response to legal process;

     (1) Tthe accused's criminal record;

     (2) Tthe willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;

     (3) Tthe nature of the charge; any other factors indicating the accused's ties to the community;

     (4) The accused's reputation, character and mental condition;

     (5) Tthe accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice;

     (6) Wwhether or not there is evidence of present threats or intimidation directed to witnesses;

     (7) Tthe accused's past record of committing offenses while on pretrial release, probation or parole; and

     (8) Tthe accused's past record of use of or threatened use of deadly weapons or firearms, especially to victim's or witnesses.

     (df) Delay of Release. The court may delay release of a person in the following circumstances:

     (1) If the person is intoxicated and release will jeopardize the persons safety or that of others, the court may delay release of the person or have the person transferred to the custody and care of a treatment center.

     (2) If the persons mental condition is such that the court believes the person should be interviewed by a mental health professional for possible commitment to a mental treatment facility pursuant to RCW 71.05, the court may delay release of the person.

     (3) Unless other grounds exist for continued detention, a person detained pursuant to this section must be released from detention not later than 24 hours after the preliminary appearance.

     (eg) Release in Capital Cases. Any person charged with a capital offense shall not be released in accordance with this rule unless the court finds that release on conditions will reasonably assure that the accused will appear for later hearings, will not significantly interfere with the administration of justice and will not pose a substantial danger to another or the community. If a risk of flight, interference or danger is believed to exist, the person may be ordered detained without bail.

     (fh) Release After Finding or Plea of Guilty. After a person has been found or pleaded guilty, and subject to RCW 9.95.062, 9.95.064, 10.64.025, and 10.64.027, the court may revoke, modify, or suspend the terms of release and/or bail previously ordered.

     (gi) Order for Release. A court authorizing the release of the accused under this rule shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform the accused of the penalties applicable to violations of the conditions imposed, if any, shall inform the accused of the penalties applicable to violations of the conditions of the accused's release and shall advise the accused that a warrant for the accused's arrest may be issued upon any such violation.

     (hj) Review of Conditions.

     (1) At any time after the preliminary appearance, an accused who is being detained due to failure to post bail may move for reconsideration of bail. In connection with this motion, both parties may present information by proffer or otherwise. If deemed necessary for a fair determination of the issue, the court may direct the taking of additional testimony.

     (2) A hearing on the motion shall be held within a reasonable time. An electronic or stenographic record of the hearing shall be made. Following the hearing, the court shall promptly enter an order setting out the conditions of release in accordance with section (g). If a bail requirement is imposed or maintained, the court shall set out its reasons on the record or in writing.

     (ik) Amendment or Revocation of Order.

     (1) The court ordering the release of an accused on any condition specified in this rule may at any time on change of circumstances, new information or showing of good cause amend its order to impose additional or different conditions for release.

     (2) Upon a showing that the accused has willfully violated a condition of release, the court may revoke release and may order forfeiture of any bond. Before entering an order revoking release or forfeiting bail, the court shall hold a hearing in accordance with section (h). Release may be revoked only if the violation is proved by clear and convincing evidence.

     (jl) Arrest for Violation of Conditions.

     (1) Arrest With Warrant. Upon the court's own motion or a verified application by the prosecuting attorney alleging with specificity that an accused has willfully violated a condition of the accused's release, a court shall order the accused to appear for immediate hearing or issue a warrant directing the arrest of the accused for immediate hearing for reconsideration of conditions of release pursuant to section (i).

     (2) Arrest Without Warrant. A law enforcement officer having probable cause to believe that an accused released pending trial for a felony is about to leave the state or has violated a condition of such release under circumstances rendering the securing of a warrant impracticable may arrest the accused and take him forthwith before the court for reconsideration of conditions of release pursuant to section (i).

     (km) Evidence. Information stated in, or offered in connection with, any order entered pursuant to this rule need not conform to the rules pertaining to the admissibility of evidence in a court of law.

     (ln) Forfeiture. Nothing contained in this rule shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court.

     (mo) Accused Released on Recognizance or Bail -- Absence -- Forfeiture. If the accused has been released on the accused's own recognizance, on bail, or has deposited money instead thereof, and does not appear when the accused's personal appearance is necessary or violated conditions of release, the court, in addition to the forfeiture of the recognizance, or of the money deposited, may direct the clerk to issue a bench warrant for the accused's arrest.

     (b) How Determined. The court shall determine probable cause on evidence presented by a peace officer or prosecuting authority in the same manner as provided for a warrant of arrest in rule 2.2(a). The evidence shall be preserved and may consist of an electronically recorded telephonic statement. If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Sworn testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part.

     (c) Court Days. For the purpose of section (a) Saturday, Sunday and holidays may be considered judicial days.

     (d) Preliminary Appearance.

     (1) Adult. Unless a defendant has appeared or will appear before a court of limited jurisdiction for a preliminary appearance pursuant to CrRLJ 3.2.1(a), any defendant whether detained in jail or subjected to court-authorized conditions of release shall be brought before the superior court as soon as practicable after the detention is commenced, the conditions of release are imposed or the order is entered, but in any event before the close of business on the next court day. A person is not subject to conditions of release if the person has been served with a summons and the only obligation is to appear in court on a future date.

     (2) Juveniles. Any person in whose case the juvenile court has entered a written order declining jurisdiction, and who is detained in custody must be taken to appear before the superior court as soon as practicable after the juvenile court order is entered, but in any event before the close of business on the next court day.

     (3) Unavailability. If an accused is unavailable for preliminary appearance because of physical or mental disability, the court may, for good cause shown and recited in a written order, enlarge the time prior to preliminary appearance.

     (e) Procedure at Preliminary Appearance.

     (1) At the preliminary appearance, the court shall provide for a lawyer pursuant to rule 3.1 and for pretrial release pursuant to rule 3.2, and the court shall orally inform the accused:

     (i) of the nature of the charge against the accused;

     (ii) of the right to be assisted by a lawyer at every stage of the proceedings; and

     (iii) of the right to remain silent, and that anything the accused says may be used against him or her.

     (2) If the court finds that release should be denied or that conditions should attach to release on personal recognizance, other than the promise to appear at subsequent hearings, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charges, unless this determination has previously been made by a court. Before making the determination, the court may consider affidavits filed or sworn testimony and further may examine under oath the affiant and any witnesses he or she may produce. Subject to constitutional limitations, the findings of probable cause may be based on evidence which is hearsay in whole or in part.

     (f) Time Limits.

     (1) Unless an information or indictment is filed or the affected person consents in writing or on the record in open court, an accused, shall not be detained in jail or subjected to conditions of release for more than 72 hours after the defendant's detention in jail or release on conditions, whichever occurs first. Computation of the 72 hour period shall not include any part of Saturdays, Sundays or holidays.

     (2) If no information or indictment has been filed at the time of the preliminary appearance, and the accused has not otherwise consented, the court shall either:

     (i) order in writing that the accused be released from jail or exonerated from the conditions of release at a time certain which is within the period described in subsection (f)(1); or

     (ii) set a time at which the accused shall reappear before the court. The time set for reappearance must also be within the period described in subsection (f)(1). If no information or indictment has been filed by the time set for release or reappearance, the accused shall be immediately released from jail or deemed exonerated from all conditions of release.

[Former Rule 3.2A and former Rule 3.2B adopted effective July 1, 1992; redesignated as Rule 3.2.1 adopted effective April 3, 2001.]

     The Supreme Court Rules Committee, in turn, sent the proposed change to the Superior Court Judges' Association and the WSBA Court Rules and Procedures Committee for prepublication comment. The WSBA formed a subcommittee to study the proposed change to CrR 3.2 and its companion courts of limited jurisdiction rule, CrRLJ 3.2. The SCJA did not take a position on the merits of the proposed court rule change but rather sent it to the Board for Judicial Administration (BJA) for comment.

     In the spring of 2001, the BJA established a subcommittee to study the proposed changes to CrR 3.2 and CrRLJ 3.2. The subcommittee members were representatives from the Minority and Justice Commission, judges from the Superior Courts and courts of limited jurisdiction and the WSBA. The subcommittee met during the summer of 2001 to review proposed changes to CrR 3.2 and CrRLJ 3.2 and other rules impacted by these changes.

     The proposed amendments to CrRLJ 3.2 change the structure of the rule to clarify it. Part of the structural reorganization is to separate out the three broad issues a judge is directed to consider for pretrial release; that is, whether the accused is likely to appear at future hearings, whether there is a likely danger that the accused will commit a violent crime, and whether the accused will seek to intimidate witnesses or otherwise interfere with the administration of justice.

     A new sentence is added at the beginning of the rule to highlight that if probable cause is not found the accused shall be released without conditions.

     The amendment to section (a) deletes language relating to how probable cause is determined. That language has been moved to CrRLJ 3.2.1(b) where it is more appropriately covered.

     The amendment to section (b)(6) adds electronic monitoring as an option for conditions for pretrial release. The final sentence of this section provides that if a court determines that a bond is necessary to secure future appearance, the court shall consider the accused's financial resources in setting the bond. A similar provision is included at section (d) when the bond is set after there has been a showing that there is a substantial danger the accused will commit a violent crime, seek to intimidate a witness, or otherwise unlawfully interfere with the administration of justice.

     New section (b)(8) incorporates language originally suggested by the Supreme Court's Duplicate Rules Committee when its recommended consolidated rules were published for comment in 1999. It permits a court of limited jurisdiction to adopt a bail schedule for persons who have been arrested on probable cause but who have not yet made a preliminary appearance. The schedule is at local option and may be adopted by majority vote of the judges. Finally, this provisions permits the Supreme Court to adopt a uniform bail schedule as an appendix to the courts of limited jurisdiction criminal rules. This would remove the lengthy bail schedules now contained at sections (m) through (s), exclusive of sections (n) and (o) which are presently reserved.

     The amendments to section (c) add additional factors for a court to consider when determining whether the accused will appear in court in the future.

     No amendments are suggested for existing sections (d) through (m) except to renumber them to conform to the suggested changes to CrRLJ 3.2.

     (a) Presumption of Release in Noncapital Cases. Any person, other than a person charged with a capital offense, shall at the preliminary appearance or reappearance pursuant to rule 3.2.1 be ordered released on the accused's personal recognizance pending trial unless:

     (1) the court determines that such recognizance will not reasonably assure the accused's appearance, when required, or

     (2) if there is shown a likely danger that the accused:

     (a) will commit a violent crime, or that the accused

     (b) will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice.

     For the purpose of this rule, "violent crimes" may include misdemeanors and gross misdemeanors and are not limited to crimes defined as violent offenses in RCW 9.94A.030.

     In making the determination herein, the court shall, on the available information, consider the relevant facts including, but not limited to, those in subsections (c) and (e) of this rule.      If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony and further may examine under oath the affiant and any witnesses the affiant may produce. The testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part.

     (b) Showing of Likely Failure to Appear -- Least Restrictive Conditions of Release. If the court determines that the accused is not likely to appear if released on personal recognizance, Tthe court shall impose the least restrictive of the following conditions that will reasonably assure that the accused will be present for later hearings, will not significantly interfere with the administration of justice and not pose a substantial danger to others or the community or, if no single condition gives that assurance, any combination of the following conditions:

     (1) Place the accused in the custody of a designated person or organization agreeing to supervise the accused;

     (2) Place restrictions on the travel, association, or place of abode of the accused during the period of release;

     (3) Require the execution of an unsecured bond in a specified amount;

     (4) Require the execution of a bond in a specified amount and the deposit in the registry of the court in cash or other security as directed, of a sum not to exceed 10 percent of the amount of the bond, such deposit to be returned upon the performance of the conditions of release or forfeited for violation of any condition of release;

     (5) Require the execution of a bond with sufficient solvent sureties or the deposit of cash in lieu thereof;

     (6) Require the accused to return to custody during specified hours or to be placed on electronic monitoring, if available; or

     (7) Impose any condition other than detention deemed reasonably necessary to assure appearance as required, assure noninterference with the trial and reduce the danger to others or the community.

     A court of limited jurisdiction may adopt a bail schedule for persons who have been arrested on probable cause but have not yet made a preliminary appearance before a judicial officer. The adoption of such a schedule or whether to adopt a schedule, is in the discretion of each court of limited jurisdiction, and may be adopted by majority vote. Bail schedules are not subject to GR 7. The supreme court may adopt a uniform bail schedule as an appendix to these rules.

     If the court determines that the accused must post a secured or unsecured bond, the court shall consider, on the available information, the accused's financial resources for the purposes of setting a bond that will reasonably assure the accused's appearance.

     A court of limited jurisdiction may adopt a bail schedule for persons who have been arrested on probable cause but have not yet made a preliminary appearance before a judicial officer. With the exception of offenses specified in CrRLJ 3.2(m), the adoption of such a schedule or whether to adopt a schedule, is in the discretion of each court of limited jurisdiction, and may be adopted by majority vote. Bail schedules are not subject to GR 7.

     (bc) Relevant Factors -- Future Appearance. In determining which conditions of release will reasonably assure the accused's appearance and noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to:

     (1) the length and character of the accused's residence in the community tThe accused's history of response to legal process, particularly court orders to personally appear;

     (2) tThe accused's employment status and history, and financial condition enrollment in an educational institution or training program, participation in a counseling or treatment program, performance of volunteer work in the community, participation in school or cultural activities or receipt of financial assistance from the government;

     (3) tThe accused's family ties and relationships;

     (4) tThe accused's reputation, character and mental condition;

     (5) the accused's history of response to legal process tThe length of the accused's residence in the community;

     (6) tThe accused's criminal record;

     (7) tThe willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;

     (8) tThe nature of the charge, if relevant to the risk of nonappearance;

     (9) Any other factors indicating the accused's ties to the community. the accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice; whether or not there is evidence of present threats or intimidation directed to witnesses; the accused's past record of committing offenses while on pretrial release, probation or parole; and the accused's past record of use of or threatened use of deadly weapons or firearms, especially to victims or witnesses.

     (cd) Showing of Substantial Danger -- Conditions of Release. Upon a showing that there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice, the court may impose one or more of the following nonexclusive conditions:

     (1) Prohibit the accused from approaching or communicating in any manner with particular persons or classes of persons;

     (2) Prohibit the accused from going to certain geographical areas or premises;

     (3) Prohibit the accused from possessing any dangerous weapons or firearms, or engaging in certain described activities or possessing or consuming any intoxicating liquors or drugs not prescribed to the accused;

     (4) Require the accused to report regularly to and remain under the supervision of an officer of the court or other person or agency;

     (5) Prohibit the accused from committing any violations of criminal law;

     (6) Require the accused to post a secured or unsecured bond or deposit cash in lieu thereof, conditioned on compliance with all conditions of release. This condition may be imposed only if no less restrictive condition or combination of conditions would reasonably assure the safety of the community or the appearance of the defendant. If the court determines under this section that the accused must post a secured or unsecured bond, the court shall consider, on the available information, the accused financial resources for the purposes of setting a bond that will reasonably assure the safety of the community and prevent the defendant from intimidating witnesses or otherwise unlawfully interfering with the administration of justice.

     (7) Place the accused in the custody of a designated person or organization agreeing to supervise the accused;

     (8) Place restrictions on the travel, association, or place of abode of the accused during the period of release;

     (9) Require the accused to return to custody during specified hours or to be placed on electronic monitoring, if available; or

     (10) Impose any condition other than detention to assure noninterference with the administration of justice and reduce danger to others or the community.

     (eb) Relevant Factors -- Showing of Substantial Danger. In determining which conditions of release will reasonably assure the accused's appearance and noninterference with the administration of justice, and reduce danger to others or the community, the court shall, on the available information, consider the relevant facts including but not limited to: the length and character of the accused's residence in the community; the accused's employment status and history and financial condition; the accused's family ties and relationships; the accused's reputation, character and mental condition; the accused's history of response to legal process;

     (1) Tthe accused's criminal record;

     (2) Tthe willingness of responsible members of the community to vouch for the accused's reliability and assist the accused in complying with conditions of release;

     (3) Tthe nature of the charge; any other factors indicating the accused's ties to the community;

     (4) The accused's reputation, character and mental condition;

     (5) Tthe accused's past record of threats to victims or witnesses or interference with witnesses or the administration of justice;

     (6) Wwhether or not there is evidence of present threats or intimidation directed to witnesses;

     (7) Tthe accused's past record of committing offenses while on pretrial release, probation or parole; and

     (8) Tthe accused's past record of use of or threatened use of deadly weapons or firearms, especially to victim's or witnesses.

     (df) Delay of Release. The court may delay release of a person in the following circumstances:

     (1) If the person is intoxicated and release will jeopardize the persons safety or that of others, the court may delay release of the person or have the person transferred to the custody and care of a treatment center.

     (2) If the persons mental condition is such that the court believes the person should be interviewed by a mental health professional for possible commitment to a mental treatment facility pursuant to RCW 71.05, the court may delay release of the person.

     (3) Unless other grounds exist for continued detention, a person detained pursuant to this section must be released from detention not later than 24 hours after the preliminary appearance.

     (eg) Release in Capital Cases. Any person charged with a capital offense shall not be released in accordance with this rule unless the court finds that release on conditions will reasonably assure that the accused will appear for later hearings, will not significantly interfere with the administration of justice and will not pose a substantial danger to another or the community. If a risk of flight, interference or danger is believed to exist, the person may be ordered detained without bail.

     (fh) Release After Finding or Plea of Guilty. After a person has been found or pleaded guilty, the court may revoke, modify, or suspend the terms of release and/or bail previously ordered.

     (gi) Order for Release. A court authorizing the release of the accused under this rule shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform the accused of the penalties applicable to violations of the conditions of the accused's release and shall advise the accused that a warrant for the accused's arrest may be issued upon any such violation.

     (hj) Amendment or Revocation of Order.

     (1) The court ordering the release of an accused on any condition specified in this rule may at any time on change of circumstances, new information or showing of good cause amend its order to impose additional or different conditions for release.

     (2) Upon a showing that the accused has willfully violated a condition of release, the court may revoke release and may order forfeiture of any bond. Before entering an order revoking release or forfeiting bail, the court shall hold a hearing. Release may be revoked only if the violation is proved by clear and convincing evidence.

     (ik) Arrest for Violation of Conditions.

     (1) Arrest With Warrant. Upon the courts own motion or a verified application by the prosecuting authority alleging with specificity that an accused has willfully violated a condition of the accused's release, a court shall order the accused to appear for immediate hearing or issue a warrant directing the arrest of the accused for immediate hearing for reconsideration of conditions of release pursuant to section (h).

     (2) Arrest Without Warrant. A law enforcement officer having probable cause to believe that an accused released pending trial for a felony is about to leave the state or has violated a condition of such release under circumstances rendering the securing of a warrant impracticable may arrest the accused and take him forthwith before the court for reconsideration of conditions of release pursuant to section (h).

     (ji) Evidence. Information stated in, or offered in connection with, any order entered pursuant to this rule need not conform to the rules pertaining to the admissibility of evidence in a court of law.

     (km) Forfeiture. Nothing contained in this rule shall be construed to prevent the disposition of any case or class of cases by forfeiture of collateral security where such disposition is authorized by the court.

     (ln) Accused Released on Recognizance or Bail -- Absence -- Forfeiture. If the accused has been released on the accused's own recognizance, on bail, or has deposited money instead thereof, and does not appear when the accused's personal appearance is necessary or violates conditions of release, the court, in addition to the forfeiture of the recognizance, or of the money deposited, may direct the clerk to issue a bench warrant for the accused's arrest.

     (mo) Bail in Criminal Offense Cases--Mandatory Appearance. (Unchanged.)

     (np) (Reserved.)

     (oq) Forfeitable Fisheries Offenses.

     (pr) Forfeitable Wildlife Offenses. (Unchanged.)

     (qs) Forfeitable Natural Resources Offenses. (Unchanged.)

     (rt) Forfeitable Parks Offenses. (Unchanged.)

     (su) Forfeitable Utilities and Transportation Offenses. (Unchanged.)

     (b) How Determined. The court shall determine probable cause on evidence presented by a peace officer or prosecuting authority in the same manner as provided for a warrant of arrest in rule 2.2(a). The evidence shall be preserved and may consist of an electronically recorded telephonic statement. If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Sworn testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part.

     (c) Court Days. For the purpose of section (a) Saturday, Sunday and holidays may be considered judicial days.

     (d) Preliminary Appearance.

     (1) Adult. Unless an accused has appeared or will appear before the superior court for a preliminary appearance, any accused detained in jail must be brought before a court of limited jurisdiction as soon as practicable after the detention is commended, but in any event before the close of the next court day.

     (2) Juveniles. Unless an accused has appeared or will appear before the superior court for a preliminary appearance, any accused in whose case the juvenile court has entered a written order declining jurisdiction and who is detained in custody, must be brought before a court of limited jurisdiction as soon as practicable after the juvenile court order is entered, but in any event before the close of business on the next court day.

     (3) Unavailability. If an accused is unavailable for preliminary appearance because of physical or mental disability, the court may, for good cause shown and recorded by the court, enlarge the time prior to preliminary appearance.

     (e) Procedure at Preliminary Appearance.

     (1) At the preliminary appearance, the court shall provide for a lawyer pursuant to rule 3.1 and for pretrial release pursuant to rule 3.2, and the court shall orally inform the accused:

     (i) of the nature of the charge against the accused;

     (ii) of the right to be assisted by a lawyer at every stage of the proceedings; and

     (iii) of the right to remain silent, and that anything the accused says may be used against him or her.

     (2) If the court finds that release should be denied or that conditions should attach to release on personal recognizance, other than the promise to appear in court at subsequent hearings, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider affidavits filed or sworn testimony and further may examine under oath the affiant and any witnesses he or she may produce. Subject to constitutional limitations, the finding of probable cause may be based on evidence which is hearsay in whole or in part.

     (f) Time Limits.

     (1) Unless a written complaint is filed or the accused consents in writing or on the record in open court, an accused, following a preliminary appearance, shall not be detained in jail or subjected to conditions of release for more than 72 hours after the accused's detention in jail or release on conditions, whichever occurs first. Computation of the 72-hour period shall not include any part of Saturdays, Sundays, or holidays.

     (2) If no complaint, information or indictment has been filed at the time of the preliminary appearance, and the accused has not otherwise consented, the court shall either:

     (i) order in writing that the accused be released from jail or exonerated from the conditions of release at a time certain which is within the period described in subsection (f)(1); or

     (ii) set a time at which the accused shall reappear before the court. The time set for reappearance must also be within the period described in subsection (f)(1). If no complaint, information or indictment has been filed by the time set for release or reappearance, the accused shall be immediately released from jail or deemed exonerated from all conditions of release.

     (g) Preliminary Hearing on Felony Complaint.

     (1) When a felony complaint is filed, the court may conduct a preliminary hearing to determine whether there is probable cause to believe that the accused has committed a felony unless an information or indictment is filed in superior court prior to the time set for the preliminary hearing. If the court finds probable cause, the court shall bind the defendant over to the superior court. If the court binds the accused over, or if the parties waive the preliminary hearing, an information shall be filed without unnecessary delay. Jurisdiction vests in the superior court at the time the information is filed.

     (2) If at the time a felony complaint is filed with the district court the accused is detained in jail or subjected to conditions of release, the time from the filing of the complaint in district court to the filing of an information in superior court shall not exceed 30 days plus any time which is the subject of a stipulation under subsection (g)(3). If at the time the complaint is filed with the district court the accused is not detained in jail or subjected to conditions of release, the time from the accused's first appearance in district court which next follows the filing of the complaint to the time of the filing of an information in superior court shall not exceed 30 days, excluding any time which is the subject of a stipulation under subsection (g)(3). If the applicable time period specified above elapses and no information has been filed in superior court, the case shall be dismissed without prejudice.

     (3) Before or after the preliminary hearing or a waiver thereof, the court may delay a preliminary hearing or defer a bind-over date if the parties stipulate in writing that the case shall remain in the court of limited jurisdiction for a specified time, which may be in addition to the 30-day time limit established in subsection (g)(2).

     (4) A preliminary hearing shall be conducted as follows:

     (i) the defendant may as a matter of right be present at such hearing;

     (ii) the court shall inform the defendant of the charge unless the defendant waives such reading;

     (iii) witnesses shall be examined under oath and may be cross-examined;

     (iv) the defendant may testify and call witnesses in the defendant's behalf.

     (5) If a preliminary hearing on the felony complaint is held and the court finds that probable cause does not exist, the charge shall be dismissed, and may be refiled only if a motion to set aside the finding is granted by the superior court. The superior court shall determine whether, at the time of the hearing on such motion, there is probable cause to believe that the defendant has committed a felony.

     (6) If a preliminary hearing is held, the court shall file the record in superior court promptly after notice that the information has been filed. The record shall include, but not be limited to, all written pleadings, docket entries, the bond, and any exhibits filed in the court of limited jurisdiction. Upon written request of any party, the court shall file the recording of any testimony.

     Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

     Reviser's note: The brackets and enclosed material above occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.

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