RSA 597:2 · Release of a Defendant Pending Trial

597:2 Release of a Defendant Pending Trial. –

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I.

Except as provided in paragraph III or VIII, upon the appearance before the court of a person charged with an offense, the court shall issue an order that, pending arraignment or trial, the person be:

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(a)

Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

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(b)

Released on a condition or combination of conditions pursuant to the provisions of paragraph III;

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(c)

Detained; or

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(d)

Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph XII.

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II.

Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing. The court shall issue an order that, pending a probation violation hearing, the person be:

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(a)

Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

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(b)

Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

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(c)

Detained.

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III.

(a) A person may be detained for a period of not more than 36 hours from the time of his or her arrest, excluding weekends and holidays. The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a finding of probable cause that such release will not reasonably assure the appearance of the person as required or will endanger the safety of the person or of any other person or the community. The court may also consider as a factor in its determination under this paragraph or paragraph IV that a person who is detained as a result of his or her inability to meet the required conditions or post the required bond is the parent and sole caretaker of a child and whether, as a result, such child would become the responsibility of the division for children, youth, and families.

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(b)

If there is probable cause to believe that, on this matter or while on release pending resolution of a previous offense, the person: failed to appear; or committed a felony, class A misdemeanor, or driving or operating while impaired; or violated a condition of bail; there shall be a rebuttable presumption that the person will not abide by bail conditions, and the person shall be detained. At the bail hearing, the defendant shall be permitted to present evidence and the court shall decide whether such person has rebutted the presumption that release will not reasonably assure the appearance of the person as required or comply with bail conditions.

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(c)

Except as provided in RSA 597:1-c, a person who is charged with a qualifying offense shall not be brought before a bail commissioner and shall, upon arrest, be detained pending arraignment before the court. Arraignment shall occur no later than 36 hours after the arrest, excluding weekends and holidays. At the person's appearance before the court, the court shall order that the person be detained pending trial if the court determines by a finding of probable cause that release of the person is a danger to that person or the public. In determining whether release will endanger the safety of that person or the public, the court may consider all relevant and material factors presented pursuant to paragraph VI. If the court does not find probable cause that the person must be detained, the court shall order the person released pursuant to subparagraph I(b), or, if applicable, temporarily detained pursuant to subparagraph I(d). A person arrested for violating the conditions of his or her bail for an offense listed in this subparagraph shall be held until they can be brought before the court at the first available date. If at a subsequent hearing, the court finds probable cause exists that the person violated the conditions of his or her bail for any of the crimes listed in this subparagraph, the defendant shall be held pending trial. For the purpose of this subparagraph, "qualifying offense" means any of the following:

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(1)

Homicide under RSA 630;

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(2)

First degree assault under RSA 631:1;

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(3)

Second degree assault under RSA 631:2;

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(4)

Felony level domestic violence under RSA 631:2-b;

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(5)

Aggravated felonious sexual assault under RSA 632-A:2;

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(6)

Felonious sexual assault under RSA 632-A:3;

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(7)

Kidnapping under RSA 633:1;

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(8)

Felony level stalking under RSA 633:3-a, VI(a);

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(9)

Trafficking in persons under RSA 633:7;

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(10)

Robbery under RSA 636:1, III;

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(11)

Possession, manufacture, or distribution of child sexual abuse images under RSA 649-A;

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(12)

Computer pornography and child exploitation under RSA 649-B;

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(13)

Any felony offense that has as an element the use, attempted use, or threatened use of physical force against a person; or

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(14)

Any felony offense, if the person has twice before been convicted of an offense listed in subparagraph (c).

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IV.

As applied to this section, the court shall not impose a financial condition that will result in the pretrial detention of the person solely as a result of that financial condition unless the court determines by a finding of probable cause after a hearing that no reasonable alternative or combination of conditions will assure that the person will not commit a new offense, violate bail, or fail to appear. The defendant shall be afforded the opportunity to be heard and the court may consider any relevant factors in making its determination.

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V.

In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court may consider all relevant factors bearing upon a person's ability to post bail.

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VI.

(a) Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court. At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court.

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(b)

At any subsequent hearing, such testimony may be presented via video conferencing, unless the court determines that witness testimony in court is necessary. A request by the defendant for in-court testimony shall be made by oral motion at the initial hearing or by written motion prior to any subsequent hearing. Any order granting the defendant's request shall be distributed to the parties at least 48 hours prior to any subsequent hearing.

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(c)

There shall be a rebuttable presumption that an alleged victim of the crime shall not be required to testify at the bail hearing. Nothing in this section shall preclude an alleged victim from voluntarily testifying at such hearing. The state may present evidence of statements made in the course of an investigation through a law enforcement officer.

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VII.

(a) If the court determines that release described in paragraphs I and II will not reasonably assure the appearance of the person as required or, as described in paragraph III or IX, will endanger the safety of the person or of any other person or the community, the court shall issue an order that includes the following conditions:

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(1)

The condition that the person not commit a crime during the period of release; and

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(2)

Such further condition or combination of conditions that he determines will reasonably assure the appearance of the person as required and the safety of the person or of any other person or the community, which may include the condition that the person:

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(A)

Execute an agreement to forfeit, upon failing to appear within 45 days of the date required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the court may specify;

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(B)

Furnish bail for his or her appearance by recognizance with sufficient sureties or by deposit of moneys equal to the amount of the bail required as the court may direct; and

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(C)

Satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of the person or of any other person or the community.

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(b)

In considering the conditions of release described in subparagraph VII(a)(1) or VII(a)(2), the court may upon its own motion, or shall upon the motion of the state, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that because of its source will not reasonably assure the appearance of the person as required.

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XIII.

If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173-B:9, I(a).

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IX.

If a person is charged with any of the offenses listed in RSA 173-B:1, I or charged with violation of a protective order issued under RSA 458:16, III or after arraignment for violation of a protective order under RSA 173-B, the court may order preventive detention without bail if there is probable cause to believe that the person poses a danger to another, or, in the alternative, restrictive conditions including but not limited to electronic monitoring and supervision. The court may consider, but shall not be limited to considering, any of the following conduct as evidence of posing a danger:

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(a)

Threats of suicide.

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(b)

Acute depression.

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(c)

History of violating protective orders.

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(d)

Possessing or attempting to possess a deadly weapon in violation of an order.

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(e)

Death threats or threats of possessiveness toward another.

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(f)

Stalking, as defined in RSA 633:3-a.

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(g)

Cruelty to or violence directed toward pets.

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X.

A no-contact provision contained in any bail order shall not be construed to:

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(a)

Prevent counsel for the defendant to have contact with counsel for any of the individuals protected by such provision; or

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(b)

Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.

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XI.

In a release order issued pursuant to the provisions of this section, the court shall include a written statement that sets forth:

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(a)

All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and

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(b)

The provisions of RSA 641:5, relative to intimidation of witnesses and informants.

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XII.

A person charged with an offense who is, and was at the time the offense was committed, on probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III may be detained for a period of not more than 36 hours from the time of his or her arrest, excluding weekends and holidays. The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state or local law enforcement official. Upon such notice the court shall also direct the clerk to notify by telephone the division of field services, department of corrections, of the pending bail hearing. If the official fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial. Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole may be subject to arrest and detention as probation and parole violators.

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XIII.

Notwithstanding any law to the contrary, upon the appearance of a person charged with a class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines that such release will endanger the safety of the person or of any other person or the community. The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

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XIV.

A person detained by a circuit court has the right to:

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(a)

In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and

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(b)

A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.

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XV.

(a) Each county may develop criteria to evaluate and determine whether a person is indigent or not for the purpose of the person's ability to repay the cost of electronic monitoring. Based on the criteria, the county may render a finding of indigent or not for the purpose of the person's ability to repay the costs of electronic monitoring.

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(b)

If the county finds that the person is not indigent for the purpose of repaying the cost of electronic monitoring, the county may order that the person reimburse the county for payment of the cost of electronic monitoring. The county may extend the time period for repayment in its discretion to allow the person time to make the repayment, except that in no case shall the time period exceed one year from the date the case was closed. The county may seek reimbursement in other ways as determined by the county.

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(c)

If the county finds that the person is indigent for the purpose of repaying the cost of electronic monitoring, the county may waive the cost of electronic monitoring. Source. 1903, 28:1. 1919, 49:1. PL 366:14. RL 425:14. RSA 597:2. 1969, 78:2. 1989, 386:3. 1992, 269:3, 4. 1993, 258:3, eff. Aug. 14, 1993. 1999, 229:1, eff. Jan. 1, 2000. 2005, 230:1, eff. Jan. 1, 2006. 2006, 214:3, eff. July 31, 2006. 2009, 91:1, eff. Aug. 11, 2009. 2011, 236:2, eff. Sept. 3, 2011. 2015, 74:1-3, eff. Jan. 1, 2016. 2018, 366:2, eff. Aug. 31, 2018. 2019, 143:1-3, eff. June 25, 2019. 2020, 12:5, 6, eff. Sept. 14, 2020. 2024, 317:1, 2, 7, eff. Jan. 1, 2025. 2025, 3:3, eff. Sept. 21, 2025; 160:1, eff. Jan. 11, 2026.

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