AS Title 12, Chapter 30: Bail

Chapter 30. Bail. Sec. 12.30.006. Release procedures. (a) At the first appearance before a judicial officer, a person charged with an offense shall be released or detained under the provisions of this chapter. (b) At the first appearance before a judicial officer, a person may be detained up to 48 hours for the prosecuting authority to demonstrate that release of the person under AS 12.30.011 would not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, if the person has (1) been charged with an unclassified, class A, class B, or class C felony; or (2) a criminal conviction or charge outside the state. (c) A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions. (d) If a person remains in custody after review of conditions by a judicial officer under (c) of this section, the person may request a subsequent review of conditions. Unless the prosecuting authority stipulates otherwise or the person has been incarcerated for a period equal to the maximum sentence for the most serious charge for which the person is being held, a judicial officer may not schedule a bail review hearing under this subsection unless (1) the person provides to the court and the prosecuting authority a written statement that new information not considered at the previous review will be presented at the hearing; the statement must include a description of the information and the reason the information was not presented at a previous hearing; in this paragraph, “new information” includes the person's inability to post the required bail if the person can show that the person made a good faith effort to post the required bail; (2) the prosecuting authority and any surety, if applicable, have at least 48 hours' written notice before the time set for the review requested under this subsection; the defendant shall notify the surety; and (3) at least seven days have elapsed between the previous review and the time set for the requested review; however, a person may receive only one bail review hearing solely for inability to pay. (e) A judicial officer may solicit comments by the victim or a parent or guardian of a minor victim who is present at the bail review hearing and wishes to comment. The judicial officer shall consider those comments and any response by the person before making a decision concerning the release of the person. (f) The judicial officer shall issue written or oral findings that explain the reasons the officer imposed the particular conditions of release or modifications or additions to conditions previously imposed. The judicial officer shall inform the person that a law enforcement officer or a pretrial services officer under AS 33.07 may arrest the person without a warrant for violation of the court's order establishing conditions of release. (g) Information offered or introduced at a bail hearing to determine conditions of release need not conform to the rules governing the admissibility of evidence. Sec. 12.30.010. Bail before or after conviction; restrictions on release without bail. [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.011. Release before trial. (a) Except as otherwise provided in this chapter, a judicial officer shall order a person charged with an offense to be released on the person's personal recognizance or upon execution of an unsecured appearance bond, on the condition that the person (1) obey all court orders and all federal, state, and local laws; (2) appear in court when ordered; (3) if represented, maintain contact with the person's lawyer; and (4) notify the person's lawyer, who shall notify the prosecuting authority and the court, not more than 24 hours after the person changes residence. (b) If a judicial officer determines that the release under (a) of this section will not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, the officer shall impose the least restrictive condition or conditions that will reasonably ensure the person's appearance and protect the victim, other persons, and the community. In addition to conditions under (a) of this section, the judicial officer may, singly or in combination, (1) require the execution of an appearance bond in a specified amount of cash to be deposited into the registry of the court, in a sum not to exceed 10 percent of the amount of the bond; (2) require the execution of a bail bond with sufficient solvent sureties or the deposit of cash; (3) require the execution of a performance bond in a specified amount of cash to be deposited in the registry of the court; (4) place restrictions on the person's travel, association, or residence; (5) order the person to refrain from possessing a deadly weapon on the person or in the person's vehicle or residence; (6) require the person to maintain employment or, if unemployed, actively seek employment; (7) require the person to notify the person's lawyer and the prosecuting authority within two business days after any change in employment; (8) require the person to avoid all contact with a victim, a potential witness, or a codefendant; (9) require the person to refrain from the consumption and possession of alcoholic beverages; (10) require the person to refrain from the use of a controlled substance as defined by AS 11.71 , unless prescribed by a licensed health care provider with prescriptive authority; (11) require the person to be physically inside the person's residence, or in the residence of the person's third-party custodian, at time periods set by the court; (12) require the person to keep regular contact with a law enforcement officer or agency; (13) order the person to refrain from entering or remaining in premises licensed under AS 04 ; (14) place the person in the custody of an individual who agrees to serve as a third-party custodian of the person as provided in AS 12.30.021 ; (15) if the person is under the treatment of a licensed health care provider, order the person to follow the provider's treatment recommendations; (16) order the person to take medication that has been prescribed for the person by a licensed health care provider with prescriptive authority; (17) order the person to submit to electronic monitoring; (18) order the person to submit to a pretrial risk assessment by the Department of Corrections under AS 33.07 ; (19) order the person to submit to supervision by a pretrial services officer under AS 33.07 , which may include the use of electronic monitoring; (20) order the person to comply with any other condition that is reasonably necessary to ensure the appearance of the person and to ensure the safety of the victim, other persons, and the community; and (21) require the person to comply with a program established under AS 47.38.020 if the person has been charged with an alcohol-related or substance-abuse-related offense that is an unclassified felony, a class A felony, a sexual felony, or a crime involving domestic violence. (c) In determining the conditions of release under this chapter, the court shall consider the following: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the nature and extent of the person's family ties and relationships; (4) the person's employment status and history; (5) the length and character of the person's past and present residence; (6) the person's record of convictions and any pending criminal charges; (7) the person's record of appearance at court proceedings; (8) assets available to the person to meet monetary conditions of release; (9) the person's reputation, character, and mental condition; (10) the effect of the offense on the victim, any threats made to the victim, and the danger that the person poses to the victim; (11) any other facts that are relevant to the person's appearance or the person's danger to the victim, other persons, or the community; and (12) the pretrial risk assessment provided by a pretrial services officer, if available. (d) In making a finding regarding the release of a person under this chapter, (1) except as otherwise provided in this chapter, the burden of proof is on the prosecuting authority that a person charged with an offense should be detained or released with conditions described in (b) of this section or AS 12.30.016 ; (2) there is a rebuttable presumption that there is a substantial risk that the person will not appear and the person poses a danger to the victim, other persons, or the community, if the person is (A) charged with an unclassified felony, a class A felony, a sexual felony, or a felony under AS 28.35.030 or 28.35.032; (B) charged with a felony crime against a person under AS 11.41 , was previously convicted of a felony crime against a person under AS 11.41 in this state or a similar offense in another jurisdiction, and less than five years have elapsed between the date of the person's unconditional discharge on the immediately preceding offense and the commission of the present offense; (C) charged with a felony offense committed while the person was on release under this chapter for a charge or conviction of another offense; (D) charged with a crime involving domestic violence, and has been convicted in the previous five years of a crime involving domestic violence in this state or a similar offense in another jurisdiction; (E) arrested in connection with an accusation that the person committed a felony outside the state or is a fugitive from justice from another jurisdiction, and the court is considering release under AS 12.70 . (e) If the supreme court establishes a schedule of bail amounts or conditions of release for misdemeanor offenses, the schedule must include a condition providing that a correctional facility shall, at the time of release, conduct a chemical test of the breath of a person who has been arrested and who is intoxicated and shall detain the person until the test result indicates that the person's breath has less than 0.08 grams of alcohol for each 210 liters of breath or, with the consent of the person, release the person to another person who is willing and able to provide care for the person. Sec. 12.30.016. Release before trial in certain cases. (a) A judicial officer may impose, in addition to those required or authorized under AS 12.30.011 , conditions of release for offenses described in this section, if necessary to reasonably assure the person's appearance or the safety of the victim, other persons, or the community. (b) In a prosecution charging a violation of AS 04.11.010 , 04.11.499, AS 28.35.030 , or 28.35.032, a judicial officer may order the person (1) to refrain from (A) consuming alcoholic beverages; or (B) possessing on the person, in the person's residence, or in any vehicle or other property over which the person has control, alcoholic beverages; (2) to submit to a search without a warrant of the person, the person's personal property, the person's residence, or any vehicle or other property over which the person has control, for the presence of alcoholic beverages by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the conditions of the person's release by possessing alcoholic beverages; (3) to submit to a breath test when requested by a law enforcement officer or pretrial services officer; (4) to provide a sample for a urinalysis or blood test when requested by a law enforcement officer or pretrial services officer; (5) to take a drug or combination of drugs intended to prevent substance abuse; (6) to follow any treatment plan imposed by the court under AS 28.35.028 ; (7) to comply with a program established under AS 47.38.020 . (c) In a prosecution charging a violation of AS 11.71 or AS 11.73 , a judicial officer may order the person (1) to refrain from (A) consuming a controlled substance; or (B) possessing on the person, in the person's residence, or in any vehicle or other property over which the person has control, a controlled substance or drug paraphernalia; (2) to submit to a search without a warrant of the person, the person's personal property, the person's residence, or any vehicle or other property over which the person has control, for the presence of a controlled substance or drug paraphernalia by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the terms of the person's release by possessing controlled substances or drug paraphernalia; (3) to enroll in a random drug testing program, at the person's expense, with testing to occur not less than once a week, or to submit to random drug testing by the pretrial services office in the Department of Corrections to detect the presence of a controlled substance, with the results being submitted to the court and the prosecuting authority; (4) to refrain from entering or remaining in a place where a controlled substance is being used, manufactured, grown, or distributed; (5) to refrain from being physically present at, within a two-block area of, or within a designated area near, the location where the alleged offense occurred or at other designated places, unless the person actually resides within that area; (6) to refrain from the use or possession of an inhalant; or (7) to comply with a program established under AS 47.38.020 . (d) [Repealed, § 179 ch 36 SLA 2016.] (e) In a prosecution charging the crime of stalking that is not a crime involving domestic violence, a judicial officer may order the person to (1) follow the provisions of any protective order to which the person is respondent; (2) refrain from contacting, in any manner, including by telephone or electronic communication, the victim; (3) engage in counseling; if available in the community, the judicial officer shall require that counseling ordered include counseling about alternatives to aggressive behavior; (4) participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety. (f) In a prosecution charging a crime under AS 11.41.410 — 11.41.458, a judicial officer (1) may order the person to have no contact with the victim except as specifically allowed by the court; (2) may order the person to reside in a place where the person is not likely to come into contact with the victim of the offense; (3) may order the person to have no contact with any person under 18 years of age except in the normal course of business in a public place; (4) shall assure that the victim and the parent or guardian of a minor victim have been notified by a law enforcement agency or the prosecuting authority of a hearing where release is being considered, or that a reasonable effort at notification has been made; and (5) shall solicit comments from the victim or a parent or guardian of the minor victim who is present and wishes to comment, and consider those comments before making a decision concerning the release of the person. Sec. 12.30.020. Release before trial. [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.021. Third-party custodians. (a) In addition to other conditions imposed under AS 12.30.011 or 12.30.016, a judicial officer may appoint a third-party custodian if the officer finds that the appointment will, singly or in combination with other conditions, reasonably ensure the person's appearance and the safety of the victim, other persons, and the community. (b) A judicial officer may appoint an individual as a third-party custodian if the proposed custodian (1) provides information to the judicial officer about the proposed custodian's residence, occupation, ties to the community, and relationship with the person, and provides any other information requested by the judicial officer; (2) is physically able to perform the duties of custodian of the person; (3) personally, by telephone, or by other technology approved by the court, appears in court with the person and acknowledges to the judicial officer orally and in writing that the proposed custodian (A) understands the duties of custodian and agrees to perform them; the proposed custodian must specifically agree to immediately report in accordance with the terms of the order if the person released has violated a condition of release; and (B) understands that failure to perform those duties may result in the custodian's being held criminally liable under AS 09.50.010 or AS 11.56.758 . (c) A judicial officer may not appoint a person as a third-party custodian if (1) the proposed custodian is acting as a third-party custodian for another person; (2) the proposed custodian has been unconditionally discharged within the previous five years from a felony, a crime under AS 11.41 , or a similar crime in this or another jurisdiction; (3) criminal charges are pending in this state or another jurisdiction against the proposed custodian; (4) the proposed custodian is on probation in this state or another jurisdiction for an offense; (5) the proposed custodian may be called as a witness in the prosecution of the person; (6) the proposed custodian resides out of state; however, a nonresident may serve as a custodian if the nonresident resides in the state while serving as custodian. Secs. 12.30.023 , 12.30.025. Release before trial in cases involving controlled substances or alcohol; release before trial in cases involving stalking. [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.027. Release in domestic violence cases. (a) Before ordering release before or after trial, or pending appeal, of a person charged with or convicted of a crime involving domestic violence, the judicial officer shall consider the safety of the victim or other household member. To protect the victim, household member, other persons, and the community and to reasonably ensure the person's appearance, the judicial officer (1) shall impose conditions required under AS 12.30.011 ; (2) may impose any of the conditions authorized under AS 12.30.011 ; (3) may impose any of the provisions of AS 18.66.100 (c)(1) — (7) and (11); (4) may order the person to participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety; and (5) may impose any other condition necessary to protect the victim, household member, other persons, and the community, and to ensure the appearance of the person in court, including ordering the person to refrain from the consumption of alcohol. (b) A judicial officer may not order or permit a person released under (a) of this section to return to the residence or place of employment of the victim or the residence or place of employment of a petitioner who has a protective order directed to the person and issued, filed, or recognized under AS 18.66.100 — 18.66.180 unless (1) 20 days have elapsed following the date the person was arrested; (2) the victim or petitioner consents to the person's return to the residence or place of employment; (3) the person does not have a prior conviction for an offense under AS 11.41 that is a crime involving domestic violence; and (4) the court finds by clear and convincing evidence that the return to the residence or place of employment does not pose a danger to the victim or petitioner. (c) If the court imposes conditions of release under (a) of this section, it shall (1) issue a written order specifying the conditions of release; (2) provide a copy of the order to the person arrested or charged; and (3) immediately distribute a copy of the order to the law enforcement agency that arrested the person. (d) When a person is released from custody under (a) of this section, (1) from a correctional facility, the correctional facility shall notify the prosecuting authority and the prosecuting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release; (2) from other than a correctional facility, the arresting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release. (e) A person arrested for a crime involving domestic violence or for violation of a condition of release in connection with a crime involving domestic violence may not be released from custody until the person has appeared in person before a judicial officer or telephonically for arraignment. (f) A person may not bring a civil action for damages for a failure to comply with the provisions of this section. (g) [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.029. Release in sexual abuse and sexual assault cases. [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.030. Appeal from conditions of release. (a) If a person remains in custody after a review provided for in AS 12.30.006 (c) or (d), an appeal may be taken to the court having appellate jurisdiction over the court imposing the conditions. The appellate court shall affirm the order unless it finds that the lower court abused its discretion. (b) If the appellate court finds that the lower court abused its discretion, the appellate court may modify the order, remand the matter for further proceedings, or remand the matter directing entry of the appropriate order, including release under AS 12.30.011 (a). The appeal shall be determined promptly. Sec. 12.30.031. Temporary release. (a) A person, either before trial or after conviction, who is detained under this chapter may be released temporarily if (1) the person is being held in connection with a misdemeanor or class B or C felony; (2) the release is requested because of the (A) death of an immediate family member of the person; (B) birth of the person's child if the defendant executes an affidavit of paternity before the release; (C) person's need for a mental health or substance abuse assessment that the court finds cannot be accommodated in the facility or telephonically; or (D) person's need for a medical or dental examination required for acceptance into a residential treatment facility; and (3) the court solicits information from the Department of Corrections regarding the defendant's conduct while incarcerated and considers that information when making a decision under this subsection. (b) If a court orders temporary release of a person under (a) of this section, the court shall order the person to appear in court during normal business hours at the end of the period of temporary release and before the person is returned to a correctional facility. Sec. 12.30.035. Release pending appeal by state. If the state appeals an order dismissing an indictment, information, or complaint, or granting a new trial after verdict or judgment, the court shall treat the defendant in accordance with the provisions governing pretrial release under this chapter. Sec. 12.30.040. Release before sentence; release after conviction. (a) Except as provided in (b) of this section, a person who has been convicted of an offense and is awaiting sentence or who has filed an appeal may be released under the provisions of this chapter if the person establishes, by clear and convincing evidence, that the person can be released under conditions that will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community. (b) A person may not be released under (a) of this section if the person has been convicted of an offense that is (1) an unclassified or class A felony; (2) a sexual felony; (3) a class B felony if the person has been convicted within the previous 10 years of a felony committed in this state or a similar offense committed in another jurisdiction; or (4) a felony in violation of AS 11.41 , and the person has been found guilty but mentally ill. (c) A person who has been convicted of an offense and who has filed an application for post-conviction relief may not be released under this section until the court enters an order vacating all convictions against the person. A person who has prevailed in an application for post-conviction relief may seek release before trial in accordance with the provisions of this chapter. Sec. 12.30.050. Release of material witnesses. (a) If the prosecution or defense establishes by affidavit or other evidence that the testimony of a person is material in a criminal proceeding, and that it may be impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and consider the release or detention of the person under the provisions of AS 12.30.011 . (b) A material witness may not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, unless further detention is necessary to prevent a failure of justice. (c) Release of a material witness under (a) of this section may be delayed for a reasonable period of time for the deposition of the witness to be taken. Sec. 12.30.055. Persons appearing on petition to revoke. (a) A person who is in custody in connection with a petition to revoke probation for a felony crime against a person under AS 11.41 does not have a right to be released under this chapter. A judicial officer may, however, release the person under the provisions of this chapter, if it is established by a preponderance of the evidence that the proposed release conditions will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community. (b) [Repealed, § 138 ch 4 FSSLA 2019.] Sec. 12.30.060. Penalties for failure to appear. [Repealed, § 30 ch 19 SLA 2010.] Sec. 12.30.070. Contempt. Nothing in this chapter shall prevent a court from exercising its power to punish for contempt. Sec. 12.30.075. Forfeited cash and other securities. (a) Cash or other security posted by a person under AS 12.30.011 that would otherwise be forfeited shall be held by the court in trust for the benefit of the victim if, within 30 days after an order of the court establishing a failure to appear or a violation of conditions of release, the prosecuting authority gives notice that restitution may be requested as part of the sentence if the person is convicted. (b) If a restitution order is not entered, the court shall order the cash or other security being held in trust to be forfeited to the state. (c) If a restitution order is entered, the court shall apply the cash or other security to the satisfaction of the order. If the cash or other security held in trust is applied to an order of restitution, the court shall issue a separate judgment against the defendant in favor of the state in the amount that would have otherwise been forfeited, and any cash or other security remaining after payment of the restitution shall be applied against that judgment. Any cash or other security remaining shall be forfeited to the state. Sec. 12.30.078. Conviction occurrence. In this chapter, a conviction occurs at the time the person is found guilty, either by plea or verdict, of the offense. Sec. 12.30.080. Definitions. In this chapter, (1) “crime involving domestic violence” has the meaning given in AS 18.66.990 ; (2) “judicial officer” means a person authorized to release a person pending trial, sentencing, or pending appeal; (3) “knowingly” has the meaning given in AS 11.81.900 ; (4) “offense” means any criminal offense; (5) “peace officer” has the meaning given in AS 11.81.900 ; (6) “sexual felony” has the meaning given in AS 12.55.185 ; (7) “stalking” means a violation of AS 11.41.260 or 11.41.270.