§ 29-901 — Bail; personal recognizance; appointment of counsel; conditions; pretrial release program; conditions

Nebraska § 29-901

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

(1) Except as provided in subsection (2) of this section, any bailable defendant shall be ordered released from custody pending judgment on his or her personal recognizance unless the judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community.
(2)(a) This subsection applies to any bailable defendant who is charged with one or more Class IIIA, IV, or V misdemeanors or violations of city or county ordinances, except when:
(i) The victim is an intimate partner as defined in section 28-323 ; or
(ii) The defendant is charged with one or more violations of section 60-6,196 or 60-6,197 or city or village ordinances enacted in conformance with section 60-6,196 or 60-6,197 .
(b) Any bailable defendant described in this subsection shall be ordered released from custody pending judgment on his or her personal recognizance or under other conditions of release, other than payment of a bond, unless:
(i) The defendant has previously failed to appear in the instant case or any other case in the previous six months;
(ii) The judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of the defendant, victims, witnesses, or other persons; and
(iii) The defendant was arrested pursuant to a warrant.
(3) The court shall consider all methods of bond and conditions of release to avoid pretrial incarceration. If the judge determines that the defendant shall not be released on his or her personal recognizance, the judge shall consider the defendant's financial ability to pay a bond and shall impose the least onerous of the following conditions that will reasonably assure the defendant's appearance or that will eliminate or minimize the risk of harm to others or the public at large:
(a) Place the defendant in the custody of a designated person or organization agreeing to supervise the defendant;
(b) Place restrictions on the travel, association, or place of abode of the defendant during the period of such release; or
(c) Require, at the option of any bailable defendant, either of the following:
(i) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent to be retained by the clerk as appearance bond costs, except that when no charge is subsequently filed against the defendant or if the charge or charges which are filed are dropped before the appearance of the defendant which the bond was to assure, the entire deposit shall be returned to the defendant. If the bond is subsequently reduced by the court after the original bond has been posted, no additional appearance bond costs shall be retained by the clerk. The difference in the appearance bond costs between the original bond and the reduced bond shall be returned to the defendant. In no event shall the deposit be less than twenty-five dollars. Whenever jurisdiction is transferred from a court requiring an appearance bond under this subdivision to another state court, the transferring court shall transfer the ninety percent of the deposit remaining after the appearance bond costs have been retained. No further costs shall be levied or collected by the court acquiring jurisdiction; or
(ii) The execution of a bail bond with such surety or sureties as shall seem proper to the judge or, in lieu of such surety or sureties, at the option of such person, a cash deposit of such sum so fixed, conditioned for his or her appearance before the proper court, to answer the offense with which he or she may be charged and to appear at such times thereafter as may be ordered by the proper court. The cash deposit shall be returned to the defendant upon the performance of all appearances.
(4) If the court requires the defendant to execute an appearance bond requiring the defendant to post money or requires the defendant to execute a bail bond, the court shall appoint counsel for the defendant if the court finds the defendant is financially unable to pay the amount required and is indigent.
(5) If the amount of bail is deemed insufficient by the court before which the offense is pending, the court may order an increase of such bail and the defendant shall provide the additional undertaking, written or cash, to secure his or her release. All recognizances in criminal cases shall be in writing and be continuous from term to term until final judgment of the court in such cases and shall also extend, when the court has suspended execution of sentence for a limited time, as provided in section 29-2202 , or, when the court has suspended execution of sentence to enable the defendant to apply for a writ of error to the Supreme Court or Court of Appeals, as provided in section 29-2301 , until the period of suspension has expired. When two or more indictments or informations are returned against the same person at the same term of court, the recognizance given may be made to include all offenses charged therein. Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value above encumbrance equal to the amount of such justification and shall name all other cases pending in which he or she is a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in the real estate, but such recognizance shall not constitute a lien on the real estate described therein until judgment is entered thereon against such surety.
(6) In order to assure compliance with the conditions of release referred to in subsection (3) of this section, the court may order a defendant to be supervised by a person, an organization, or a pretrial services program approved by the county board. A court shall waive any fees or costs associated with the conditions of release or supervision if the court finds the defendant is unable to pay for such costs. Eligibility for release or supervision by such pretrial release program shall under no circumstances be conditioned upon the defendant's ability to pay. While under supervision of an approved entity, and in addition to the conditions of release referred to in subsection (3) of this section, the court may impose the following conditions:
(a) Periodic telephone contact by the defendant with the organization or pretrial services program;
(b) Periodic office visits by the defendant to the organization or pretrial services program;
(c) Periodic visits to the defendant's home by the organization or pretrial services program;
(d) Mental health or substance abuse treatment for the defendant, including residential treatment, if the defendant consents or agrees to the treatment;
(e) Periodic alcohol or drug testing of the defendant;
(f) Domestic violence counseling for the defendant, if the defendant consents or agrees to the counseling;
(g) Electronic or global-positioning monitoring of the defendant;
(h) Participation in a 24/7 sobriety program under the 24/7 Sobriety Program Act; and
(i) Any other supervision techniques shown by research to increase court appearance and public safety rates for defendants released on bond.
(7) The incriminating results of any drug or alcohol test or any information learned by a representative of an organization or program shall not be admissible in any proceeding, except for a proceeding relating to revocation or amendment of conditions of bond release.

Legislative History

Source: G.S.1873, c. 58, §§ 346 to 348, p. 802; R.S.1913, § 9003; Laws 1921, c. 203, § 1, p. 733; C.S.1922, § 10027; C.S.1929, § 29-901; R.S.1943, § 29-901; Laws 1951, c. 87, § 1, p. 250; Laws 1953, c. 90, § 1, p. 261; Laws 1961, c. 132, § 1, p. 384; Laws 1972, LB 1032, § 174; Laws 1974, LB 828, § 1; Laws 1975, LB 284, § 2; Laws 1984, LB 773, § 1; Laws 1991, LB 732, § 74; Laws 1999, LB 51, § 1; Laws 2009, LB63, § 23; Laws 2010, LB771, § 15; Laws 2017, LB259, § 2; Laws 2020, LB881, § 14; Laws 2021, LB271, § 7. Cross References: Appeals, suspension of sentence, see section 29-2301. Forfeiture of recognizance, see sections 29-1105 to 29-1110. Suspension of sentence, see section 29-2202. 24/7 Sobriety Program Act, see section 60-701. Annotations: 1. Applicability of section 2. Bonds 3. Discretion of court 4. Miscellaneous 1. Applicability of section This section does not apply after judgment has been rendered. State v. Woodward, 210 Neb. 740, 316 N.W.2d 759 (1982). This section does not apply to prisoner held under extradition warrant. In re Application of Campbell, 147 Neb. 382, 23 N.W.2d 698 (1946). 2. Bonds Obligation of surety on bail bond is to have principal appear forthwith, where no date is fixed. State v. Casey, 180 Neb. 888, 146 N.W.2d 370 (1966). Since 1953, a cash appearance bond may be given. Koop v. City of Omaha, 173 Neb. 633, 114 N.W.2d 380 (1962). In prosecution for violation of National Prohibition Act where bail bond had been declared forfeited before repeal of act, surety was liable. La Grotta v. United States, 77 F.2d 673 (8th Cir. 1935). 3. Discretion of court Not error for court to remand defendant on bail to custody following jury instructions, but prior to verdict. State v. Starks, 198 Neb. 433, 253 N.W.2d 166 (1977). Fixation of the amount of bail is a matter resting in the sound discretion of the trial court. Kennedy v. Corrigan, 169 Neb. 586, 100 N.W.2d 550 (1960). Acceptance and approval of bail bonds is a judicial function. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954). Order fixing amount of bail will not be reviewed on habeas corpus unless it appears that amount is unreasonably great and disproportionate to the offense charged. In re Scott, 38 Neb. 502, 56 N.W. 1009 (1893). 4. Miscellaneous The deposit of cash in lieu of or in support of bail under this section is for the purpose only of ensuring the defendant's appearance in court when required, and upon full compliance with any such court order and release of bail, the statutory refund must be made. State v. McKichan, 219 Neb. 560, 364 N.W.2d 47 (1985). Court when releasing a defendant on bond need only inform defendant of special or unusual condition of his bail attached thereto and no duty exists to inform the defendant of obvious condition to return to the court as ordered nor inform defendant of possible penalty for failure to appear. State v. King, 214 Neb. 855, 336 N.W.2d 576 (1983). Record did not show that cash deposit was made. State v. Mills, 179 Neb. 853, 140 N.W.2d 826 (1966). An appearance bond (less any applicable statutory fee) must be refunded to the defendant rather than peremptorily applied to costs where the defendant appeared as ordered and judgment had been entered against him. State v. Zamarron, 19 Neb. App. 349, 806 N.W.2d 128 (2011). Surety was estopped to question irregularities of the proceeding. Berkowitz v. United States, 90 F.2d 881 (8th Cir. 1937).