CHAPTER 23A-43
BAIL
23A-43-1 23A-43-1. (Rule 46(a)) Reserved
23A-43-2 Release of defendant on personal recognizance or unsecured bond--Exceptions.
23A-43-2.1 Defendants charged with offense punishable by death.
23A-43-3 Additional conditions of release imposed when necessary to assure appearance for trial.
23A-43-3.1 Report of noncompliance with mental health treatment.
23A-43-3.2 Rules regarding noncompliance with mental health treatment.
23A-43-4 Factors considered in determining conditions of release to be imposed.
23A-43-4.1 23A-43-4.1, 23A-43-4.2. Transferred to §§ 25-10-40, 25-10-41.
23A-43-5 (Rule 46(b)) Conditions of release and bond continued unless ordered increased--Statement of reasons for adding conditions.
23A-43-6 Order stating conditions of release--Advice to defendant as to results of violation.
23A-43-7 Amendment of order to impose additional or different conditions of release--Review on inability of defendant to meet additional conditions.
23A-43-8 Review of conditions when defendant unable to meet conditions for release--Statement by magistrate of reasons for conditions.
23A-43-9 Review of conditions requiring return to custody after specified hours--Statement by magistrate of reasons for requirement.
23A-43-10 Review by another magistrate when committing magistrate unavailable.
23A-43-11 Continuation of conditions to insure subjection to another court where charges pending--Transmittal of papers to other jurisdiction.
23A-43-12 Information considered in bail proceedings need not conform to rules of evidence.
23A-43-13 Disposition of cases by forfeiture of collateral not prohibited.
23A-43-14 Motion for amendment by circuit judge of conditions of release.
23A-43-15 Appeal to Supreme Court for amendment of conditions of release--Disposition by court.
23A-43-16 Release pending judgment or appeal--Criteria considered--Right to judicial review of conditions.
23A-43-17 (Rule 46(c)) Burden of proof as to risk of flight or danger.
23A-43-18 Conditions of release imposed on material witness--Release after deposition taken.
23A-43-19 Order for commitment or better security from person about to abscond--Order of arrest.
23A-43-20 (Rule 46(d)) Justification by sureties--Findings as to financial responsibility--Attorney not to be surety.
23A-43-21 (Rule 46(e)(1)) Forfeiture of bond and revocation of release on breach of condition--Warrant for arrest.
23A-43-22 (Rule 46(e)(2)) Setting aside forfeiture of bail.
23A-43-23 (Rule 46(e)(3)) Default judgment on forfeiture--Enforcement of liability on motion--Notice of motion.
23A-43-24 (Rule 46(e)(4)) Remission of bond after entry of judgment.
23A-43-25 Proceeding against bail after forfeiture of undertaking--Payment into county treasury of money deposit forfeited--Bonds for traffic or other misdemeanor violations excluded.
23A-43-25.1 Reinstated bond or undertaking paid to officer with whom originally deposited.
23A-43-26 (Rule 46(f)) Exoneration of obligors and release of bail--Cash deposit or surrender of defendant exonerating.
23A-43-27 Exoneration of bail on commitment under sentence.
23A-43-28 Exoneration of bail on commitment as mentally ill.
23A-43-29 Arrest of defendant by surety on violation of conditions--Recommitment and discharge of surety.
23A-43-30 (Rule 46(g)) Court supervision to eliminate unnecessary detention.
23A-43-31 Failure to appear after release as forfeiture of security--Felony or misdemeanor.
23A-43-32 Contempt powers of courts unimpaired.
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23A-43-2. Release of defendant on personal recognizance or unsecured bond--Exceptions.
Except for a defendant charged with an offense punishable by death or a defendant who is currently released on personal recognizance bond, a defendant shall, at his appearance before a committing magistrate or court be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the committing magistrate or court, unless the magistrate or court determines in the exercise of his discretion, that such a release will not reasonably assure the appearance of the defendant as required or that the defendant may pose a danger to any other person or to the community.
Source: SL 1978, ch 178, § 506; SL 1980, ch 183, § 1; SL 1982, ch 187.
23A-43-2.1. Defendants charged with offense punishable by death.
A person who is charged with an offense punishable by death shall be treated in accordance with the provisions of § 23A-43-3, unless the committing magistrate has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, the person may be ordered detained.
Source: SL 1980, ch 183, § 2.
23A-43-3. Additional conditions of release imposed when necessary to assure appearance for trial.
If a determination is made that a release pursuant to § 23A-43-2 will not reasonably assure the appearance of the defendant as required, the committing magistrate or court shall, either in lieu of or in addition to the methods of release described in § 23A-43-2, impose the first of the following conditions of release which will reasonably assure the appearance of the defendant for trial or, if no single condition gives that assurance, any combination of the following conditions:
(1) Place the defendant in the custody of a designated person or organization agreeing to supervise him;
(2) Place restrictions on the travel, association, or place of abode of the defendant during the period of release;
(3) Require the defendant to complete a mental health assessment by a specified date and follow any treatment recommendations. The court shall consider available funding sources before imposing this condition of release;
(4) Require an appearance bond in a specified amount. The bond shall be executed by depositing with the clerk of the court, in cash or other security, as directed, a sum not to exceed ten percent of the amount of the bond. The deposit shall be returned upon the performance of the conditions of release;
(5) Require the execution of a bail bond with sufficient solvent sureties, or the deposit of cash in lieu of a bail bond; or
(6) Impose any other condition reasonably necessary to assure the defendant's appearance as required, including a condition requiring that the defendant return to custody after specified hours.
Source: SL 1978, ch 178, § 506; SL 2017, ch 109, § 9.
23A-43-3.1. Report of noncompliance with mental health treatment.
If a court has imposed conditions of release that require a defendant to follow any treatment recommendations pursuant to subdivision 23A-43-3(3), the provider of those treatment services shall report any noncompliance to the court that has imposed the condition of release.
Source: SL 2017, ch 109, § 10.
23A-43-3.2. Rules regarding noncompliance with mental health treatment.
The Supreme Court may establish rules, pursuant to § 16-3-1, regarding the definition of noncompliance in § 23A-43-3.1 and how noncompliance may be reported to the court.
Source: SL 2017, ch 109, § 11.
23A-43-4. Factors considered in determining conditions of release to be imposed.
In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the results of any mental health assessment, the length of the defendant's residence in the community, the defendant's record of convictions, the defendant's record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that the defendant will flee or pose a danger to any person or to the community.
Source: SL 1978, ch 178, § 509; SL 1980, ch 179, § 3; SL 2017, ch 109, § 12.
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23A-43-5. (Rule 46(b)) Conditions of release and bond continued unless ordered increased--Statement of reasons for adding conditions.
A defendant released before trial shall continue on release until a plea or verdict of guilty has been entered, under the same terms and conditions as were previously imposed unless the committing magistrate or court determines that other terms and conditions or termination of his release are necessary to insure the orderly and expeditious progress of the trial. After conviction but prior to the entry of judgment, the defendant may be released pursuant to § 23A-43-16. If a person has been arrested on a complaint and is indicted before an information has been filed on the complaint, any bond posted from the original arrest shall continue and be the bond for the same offense, unless otherwise ordered by the court. If the terms and conditions are increased in severity or if the termination of release is ordered, the committing magistrate or court shall state the reasons therefor on the record.
Source: SL 1978, ch 178, § 507; SL 1985, ch 200, § 1.
23A-43-6. Order stating conditions of release--Advice to defendant as to results of violation.
A committing magistrate or court authorizing the release of a defendant under § 23A-43-2, 23A-43-3, or 23A-43-5 shall issue an appropriate order containing a statement of the conditions imposed, if any, shall inform the defendant of the penalties for a violation of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.
Source: SL 1978, ch 178, § 510.
23A-43-7. Amendment of order to impose additional or different conditions of release--Review on inability of defendant to meet additional conditions.
A committing magistrate or court ordering the release of a defendant on any condition specified in § 23A-43-2 or 23A-43-3 may at any time amend his or its order to impose additional or different conditions of release. If, however, the imposition of such additional or different conditions results in the detention of the defendant as a result of his inability to meet such conditions or in the release of the defendant on a condition requiring him to return to custody after specified hours, the provisions of §§ 23A-43-8 to 23A-43-10, inclusive, shall apply.
Source: SL 1978, ch 178, § 512.
23A-43-8. Review of conditions when defendant unable to meet conditions for release--Statement by magistrate of reasons for conditions.
A defendant for whom conditions of release are imposed and who after twenty-four hours from the time of the release hearing, continues to be detained as a result of his inability to meet the conditions of release, may, upon application, have the conditions reviewed by the committing magistrate, the court that imposed them, or a circuit court having jurisdiction of the defendant and the offense charged. Unless the conditions of release are amended and the person is thereupon released, the committing magistrate or court shall set forth in writing the reasons for requiring the conditions imposed.
Source: SL 1978, ch 178, § 511; SL 1983, ch 193.
23A-43-9. Review of conditions requiring return to custody after specified hours--Statement by magistrate of reasons for requirement.
A defendant who is ordered released on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the committing magistrate or court that imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition, the committing magistrate or court shall set forth in writing the reasons for continuing the requirement.
Source: SL 1978, ch 178, § 511.
23A-43-10. Review by another magistrate when committing magistrate unavailable.
If the magistrate or court that imposed the conditions of release is not available for review pursuant to § 23A-43-8 or 23A-43-9, any other committing magistrate or court in the circuit may review such conditions.
Source: SL 1978, ch 178, § 511.
23A-43-11. Continuation of conditions to insure subjection to another court where charges pending--Transmittal of papers to other jurisdiction.
If at any time during the course of a prosecution it appears that a defendant who has been conditionally released is not subject to the jurisdiction of the court imposing such conditions, and it appears that he is subject to prosecution in another court, the committing magistrate or court that imposed such conditions shall, following the procedure specified in §§ 23A-43-2 and 23A-43-3, continue such conditions of release, or alter them if necessary, in such manner as will insure that he, within such time as the committing magistrate or court shall specify, will render himself amenable to a warrant for his arrest from the proper court, and if not sooner arrested thereon, will go to the office of the sheriff of the county where the prosecution had been initiated, at a time specified in the order, to surrender himself upon the warrant if issued. The clerk of the court imposing such continued or altered conditions of release shall within ten days transmit all papers in the action filed with him, including bail if posted, to the prosecuting attorney of the proper jurisdiction.
Source: SL 1978, ch 178, § 508.
23A-43-12. Information considered in bail proceedings need not conform to rules of evidence.
Information stated in, or offered in connection with, any order entered pursuant to §§ 23A-43-1 to 23A-43-13, inclusive, need not conform to the rules pertaining to the admissibility of evidence in a court of law.
Source: SL 1978, ch 178, § 513.
23A-43-13. Disposition of cases by forfeiture of collateral not prohibited.
Nothing contained in §§ 23A-43-1 to 23A-43-12, inclusive, 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.
Source: SL 1978, ch 178, § 514.
23A-43-14. Motion for amendment by circuit judge of conditions of release.
A defendant who is detained, or whose release on a condition requiring him to return to custody after specified hours is continued, after review of his application pursuant to § 23A-43-7, 23A-43-8, 23A-43-9, or 23A-43-10 by a committing magistrate, other than a judge of the court having original jurisdiction over the offense with which he is charged or a justice of the Supreme Court, may move the circuit court having original jurisdiction over the offense with which he is charged to amend the order.
Source: SL 1978, ch 178, § 515.
23A-43-15. Appeal to Supreme Court for amendment of conditions of release--Disposition by court.
In any case in which a defendant is detained after a court denies a motion under § 23A-43-14 to amend an order imposing conditions of release, or after conditions of release have been imposed or amended by a judge of the court having original jurisdiction over the offense charged, an appeal may be taken to the Supreme Court. Any order so appealed shall be affirmed if it is supported by the proceedings below. If the order is not so supported, the Supreme Court may remand the case for a further hearing, or may, with or without additional evidence, order the defendant released pursuant to §§ 23A-43-2 and 23A-43-3.
Source: SL 1978, ch 178, § 516.
23A-43-16. Release pending judgment or appeal--Criteria considered--Right to judicial review of conditions.
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected.
Source: SDC 1939 & Supp 1960, § 34.1803; SDCL, § 23-26-4; SL 1978, ch 178, § 517; SL 1985, ch 200, § 2.
23A-43-17. (Rule 46(c)) Burden of proof as to risk of flight or danger.
On a motion pursuant to § 23A-43-16, the burden of establishing that a defendant will not flee or pose a danger to any other person or to the community rests with the defendant.
Source: SL 1978, ch 178, § 518; SL 1985, ch 200, § 3.
23A-43-18. Conditions of release imposed on material witness--Release after deposition taken.
If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and if it is shown that it may become impracticable to secure his presence by subpoena, a committing magistrate or court shall impose conditions of release upon him pursuant to §§ 23A-43-2 and 23A-43-3. No material witness shall be detained because of his inability to comply with any condition of release if his testimony can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice, but his release may be delayed for a reasonable period of time until his deposition can be taken pursuant to chapter 23A-12.
Source: SDC 1939 & Supp 1960, § 34.1410; SDCL, §§ 23-27-22, 23-27-23; SL 1978, ch 178, § 519.
23A-43-19. Order for commitment or better security from person about to abscond--Order of arrest.
When proof is made to any committing magistrate that a person previously released on the execution of an appearance bail bond with one or more sureties is about to abscond, and that his bail is insufficient, the committing magistrate shall require such person to give better security or, for default thereof, cause him to be committed. An order for his arrest may be endorsed on the former commitment, or a new warrant therefor may be issued, by such committing magistrate, setting forth the cause thereof.
Source: SDC 1939 & Supp 1960, § 34.1807; SDCL, § 23-26-8; SL 1978, ch 178, § 520.
23A-43-20. (Rule 46(d)) Justification by sureties--Findings as to financial responsibility--Attorney not to be surety.
Every surety, except a corporate surety authorized by chapter 58-21, shall justify by affidavit and may be required to describe in the affidavit the property by which he proposes to justify and the encumbrances on it, the number and amount of other bonds and undertakings for bail entered into by him and remaining undischarged and all his other liabilities. No bond shall be approved unless the surety or sureties, in the opinion of the judge, or magistrate authorized to admit to bail, are financially responsible in at least the amount of the bond. No practicing attorney shall be a surety on any bond.
Source: CCrimP 1877, § 555; CL 1887, § 7607; RCCrimP 1903, § 588; RC 1919, § 4598; SDC 1939 & Supp 1960, § 34.1805; SDCL, § 23-26-6; SL 1978, ch 178, § 521.
23A-43-21. (Rule 46(e)(1)) Forfeiture of bond and revocation of release on breach of condition--Warrant for arrest.
Upon a showing that there has been a material breach of a condition of release without good cause, the court shall declare a forfeiture of the bond, if any, and shall enter an order revoking the conditions of release. If the defendant is not in custody, the court shall direct the clerk to issue a warrant for the defendant's arrest. The defendant shall remain in custody until discharged by due course of law.
Source: SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-11; SL 1978, ch 178, § 522; SL 1979, ch 159, § 41.
23A-43-22. (Rule 46(e)(2)) Setting aside forfeiture of bail.
A court may direct that a forfeiture be set aside, upon such conditions as it may impose, if it appears that justice does not require enforcement of the forfeiture.
Source: CCrimP 1877, § 559; CL 1887, § 7611; RCCrimP 1903, § 592; RC 1919, § 4602; SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-12; SL 1978, ch 178, § 523.
23A-43-23. (Rule 46(e)(3)) Default judgment on forfeiture--Enforcement of liability on motion--Notice of motion.
When a forfeiture has not been set aside, a court shall on motion enter a judgment of default, and execution may issue thereon. By entering into a bond the obligors submit themselves to the jurisdiction of the circuit court and irrevocably appoint the clerk of the court of the county as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors at their last known addresses.
Source: SL 1978, ch 178, § 524.
23A-43-24. (Rule 46(e)(4)) Remission of bond after entry of judgment.
After entry of such judgment, a court may remit the bond in whole or in part under such conditions as it may impose, if it appears that justice does not require the enforcement of the forfeiture.
Source: SL 1978, ch 178, § 526.
23A-43-25. Proceeding against bail after forfeiture of undertaking--Payment into county treasury of money deposit forfeited--Bonds for traffic or other misdemeanor violations excluded.
After the forfeiture of recognizance, bond or undertaking of bail, including an appearance bond, the prosecuting attorney shall proceed, with all due diligence, by action against the bail upon the instrument so forfeited. If money deposited instead of bail, including an appearance bond, is forfeited, the clerk of the court or other officer with whom it is deposited, shall monthly pay the money deposited to the county treasurer who shall deposit it in the county treasury. This section is not to be construed to include bonds assessed for violations of traffic or other misdemeanor violations included on an approved fine and bond schedule adopted by a circuit court for use by lay magistrates and law enforcement officials for purposes of levying a fine and costs to permit a violator to submit a power of attorney in lieu of a court appearance. Bonds which have been submitted in payment of such violations, accompanied by either a signed or unsigned power of attorney, shall be deposited in accordance with state laws governing the deposit of such fines, liquidated court costs and surcharges.
Source: SDC 1939 & Supp 1960, § 34.1809; SDCL, § 23-26-13; SL 1974, ch 158, § 5; SL 1978, ch 173, § 1; SL 1978, ch 178, § 525; SL 1979, ch 159, § 42; SL 1982, ch 170, § 6; SL 1996, ch 157.
23A-43-25.1. Reinstated bond or undertaking paid to officer with whom originally deposited.
Upon order of the court for the reinstatement of bond or undertaking of bail, previously forfeited, the county treasurer shall pay to the clerk of court or other officer with whom it was originally deposited such bond or undertaking of bail.
Source: SL 1978, ch 173, § 2; SDCL Supp, § 23-26-13.1; SL 1979, ch 159, § 43.
23A-43-26. (Rule 46(f)) Exoneration of obligors and release of bail--Cash deposit or surrender of defendant exonerating.
When the condition of a bond has been satisfied or the forfeiture of a bond has been set aside or remitted, a court shall exonerate the obligors and release any bail. A surety may be exonerated by a deposit of cash in the amount of the bond or by a timely surrender of the defendant into custody.
Source: SL 1978, ch 178, § 527.
23A-43-27. Exoneration of bail on commitment under sentence.
When a defendant is committed pursuant to § 23A-26-12, the court shall exonerate his bail pursuant to § 23A-43-24.
Source: CCrimP 1877, § 410; CL 1887, § 7437; RCCrimP 1903, § 417; RC 1919, § 4934; SDC 1939 & Supp 1960, § 34.3676; SDCL, § 23-48-2; SL 1978, ch 178, § 528.
23A-43-28. Exoneration of bail on commitment as mentally ill.
If a defendant is committed as mentally ill, the court shall exonerate his bail pursuant to § 23A-43-24.
Source: SDC 1939 & Supp 1960, § 34.2004; SDCL, § 23-38-7; SL 1978, ch 175, § 9; SL 1978, ch 178, § 529.
23A-43-29. Arrest of defendant by surety on violation of conditions--Recommitment and discharge of surety.
Any defendant who is released on the execution of an appearance bail bond with one or more sureties may, if he violates the conditions of his release, in vacation, be arrested by his surety, delivered to a law enforcement officer, and brought before any committing magistrate. At the request of such surety, the committing magistrate shall recommit the defendant to the custody of the law enforcement officer, and endorse on the recognizance, or certified copy thereof, the discharge and exoneretur of the surety. The person so committed shall be held in custody until discharged by due course of law.
Source: SDC 1939 & Supp 1960, § 34.1808; SDCL, §§ 23-26-9, 23-26-10; SL 1978, ch 178, § 530.
23A-43-30. (Rule 46(g)) Court supervision to eliminate unnecessary detention.
A court shall exercise supervision over the detention of defendants and witnesses pending trial for the purpose of eliminating all unnecessary detention.
Source: SL 1978, ch 178, § 531.
23A-43-31. Failure to appear after release as forfeiture of security--Felony or misdemeanor.
Any person who, having been released pursuant to this chapter, fails to appear before any court or judicial officer as required or fails to comply with the provisions of § 25-10-41 shall, subject to the provisions of this title, forfeit any security which was given or pledged for such person's release and, in addition, shall:
(1) If such person was released in connection with a charge of a felony, an alleged felony violation of § 32-23-1, or fails to report for a jail or state correctional facility sentence for any offense, be guilty of a Class 6 felony;
(2) If such person was released in connection with a charge of a misdemeanor, be guilty of a Class 1 misdemeanor; or
(3) If such person was released for appearance as a material witness, be guilty of a Class 1 misdemeanor.
Source: SL 1976, ch 158, § 43-2; SDCL Supp, §§ 23-26-14 to 23-26-16; SL 1978, ch 178, § 533; SL 1994, ch 182; SL 1998, ch 153, § 1; SL 2006, ch 130, § 7; SL 2023, ch 82, § 49.
23A-43-32. Contempt powers of courts unimpaired.
Nothing in this chapter shall interfere with or prevent the exercise by any court of its power to punish for contempt.
Source: SL 1978, ch 178, § 532.