Prefiled 01/08/10. Read first time 01/11/10.   Referred to Committee on Public Safety & Emergency Preparedness.

     AN ACT Relating to bail for felony offenses; adding a new chapter to Title 10 RCW; creating new sections; providing an effective date; providing a contingent effective date; and providing an expiration date.

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

NEW SECTION.  Sec. 1   The legislature intends by this act to require an individualized determination by a judicial officer of conditions of release for persons in custody for felony. This requirement is consistent with constitutional requirements and court rules regarding the right of a detained person to a prompt determination of probable cause and judicial review of the conditions of release and the requirement that judicial determinations of bail or release be made no later than the preliminary appearance stage.

NEW SECTION.  Sec. 2   (1) Bail for the release of a person arrested and detained for a felony offense must be determined on an individualized basis by a judicial officer.
     (2) This section expires August 1, 2011.

NEW SECTION.  Sec. 3   It is the intent of the legislature to enact a law for the purpose of reasonably assuring public safety in bail determination hearings and hearings pursuant to the proposed amendment to Article I, section 20 of the state Constitution set forth in House Joint Resolution No. 4220. Other provisions of law address matters relating to assuring the appearance of the defendant at trial and preventing interference with the administration of justice.

NEW SECTION.  Sec. 4   Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer must issue an order that, pending trial, the person be:
     (1) Released on personal recognizance;
     (2) Released on a condition or combination of conditions ordered under section 5 of this act or other provision of law;
     (3) Temporarily detained as allowed by law; or
     (4) Detained as provided under this act.

NEW SECTION.  Sec. 5   (1) The judicial officer may at any time amend the order to impose additional or different conditions of release. The conditions imposed under this chapter supplement but do not supplant provisions of law allowing the imposition of conditions to assure the appearance of the defendant at trial or to prevent interference with the administration of justice.
     (2) Appropriate conditions of release under this chapter include, but are not limited to, the following:
     (a) The defendant may be placed in the custody of a designated person or organization agreeing to supervise the defendant;
     (b) The defendant may have restrictions placed upon travel, association, or place of abode during the period of release;
     (c) The defendant may be required to comply with a specified curfew;
     (d) The defendant may be required to return to custody during specified hours or to be placed on electronic monitoring, if available. The defendant, if convicted, may not have the period of incarceration reduced by the number of days spent on electronic monitoring;
     (e) The defendant may be prohibited from approaching or communicating in any manner with particular persons or classes of persons;
     (f) The defendant may be prohibited from going to certain geographical areas or premises;
     (g) The defendant may be prohibited from possessing any dangerous weapons or firearms;
     (h) The defendant may be prohibited from possessing or consuming any intoxicating liquors or drugs not prescribed to the defendant. The defendant may be required to submit to testing to determine the defendant's compliance with this condition;
     (i) The defendant may be prohibited from operating a motor vehicle that is not equipped with an ignition interlock device;
     (j) The defendant may be required to report regularly to and remain under the supervision of an officer of the court or other person or agency; and
     (k) The defendant may be prohibited from committing any violations of criminal law.

NEW SECTION.  Sec. 6   If, after a hearing on offenses prescribed in Article I, section 20 of the state Constitution, the judicial officer finds, by clear and convincing evidence, that a person shows a propensity for violence that creates a substantial likelihood of danger to the community or any persons, and finds that no condition or combination of conditions will reasonably assure the safety of any other person and the community, such judicial officer must order the detention of the person before trial. The detainee is entitled to expedited review of the detention order by the court of appeals under the writ provided in RCW 7.36.160.

NEW SECTION.  Sec. 7   The judicial officer must, in determining whether there are conditions of release that will reasonably assure the safety of any other person and the community, take into account the available information concerning:
     (1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence;
     (2) The weight of the evidence against the defendant; and
     (3) The history and characteristics of the defendant, including:
     (a) The person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings;
     (b) Whether, at the time of the current offense or arrest, the defendant was on community supervision, probation, parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under federal, state, or local law; and
     (c) The nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.

NEW SECTION.  Sec. 8   (1) The judicial officer must hold a hearing in cases involving offenses prescribed in Article I, section 20, to determine whether any condition or combination of conditions will reasonably assure the safety of any other person and the community upon motion of the attorney for the government.
     (2) The hearing must be held immediately upon the defendant's first appearance before the judicial officer unless the defendant, or the attorney for the government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days (not including any intermediate Saturday, Sunday, or legal holiday), and a continuance on motion of the attorney for the government may not exceed three days (not including any intermediate Saturday, Sunday, or legal holiday). During a continuance, such person must be detained.
     (3) At the hearing, such defendant has the right to be represented by counsel, and, if financially unable to obtain representation, to have counsel appointed. The defendant must be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community must be supported by clear and convincing evidence of a propensity for violence that creates a substantial likelihood of danger to the community or any persons.
     (4) The defendant may be detained pending completion of the hearing. The hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the safety of any other person and the community.

NEW SECTION.  Sec. 9   In a release order issued under section 5 of this act the judicial officer must:
     (1) Include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the defendant's conduct; and
     (2) Advise the defendant of:
     (a) The penalties for violating a condition of release, including the penalties for committing an offense while on pretrial release; and
     (b) The consequences of violating a condition of release, including the immediate issuance of a warrant for the defendant's arrest.

NEW SECTION.  Sec. 10   (1) In a detention order issued under section 6 of this act, the judicial officer must:
     (a) Include written findings of fact and a written statement of the reasons for the detention;
     (b) Direct that the person be committed to the custody of the appropriate correctional authorities for confinement separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and
     (c) Direct that the person be afforded reasonable opportunity for private consultation with counsel.
     (2) The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of an appropriate law enforcement officer or other appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.

NEW SECTION.  Sec. 11   Nothing in this chapter may be construed as modifying or limiting the presumption of innocence.

NEW SECTION.  Sec. 12   Sections 3 through 11 of this act constitute a new chapter in Title 10 RCW.

NEW SECTION.  Sec. 13   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 14   Sections 1 and 2 of this act take effect January 1, 2011. Sections 3 through 10 of this act take effect January 1, 2011, only if the proposed amendment to Article I, section 20 of the state Constitution proposed in House Joint Resolution No. 4220 is validly submitted to and is approved and ratified by the voters at the next general election. If the proposed amendment is not approved and ratified, sections 3 through 11 of this act are null and void in their entirety.