The Use of No Bond Holds in Colorado
| Publication year | 2003 |
| Pages | 81 |
2003, November, Pg. 81. The Use of No Bond Holds in Colorado
Vol. 32, No. 11, Pg. 81
The Colorado Lawyer
November 2003
Vol. 32, No. 11 [Page 81]
November 2003
Vol. 32, No. 11 [Page 81]
Specialty Law Columns
Criminal Law Newsletter
The Use of "No Bond" Holds in Colorado
by David R. Juarez
Criminal Law Newsletter
The Use of "No Bond" Holds in Colorado
by David R. Juarez
This column is sponsored by the CBA Criminal Law Section. It
features articles written by prosecutors, defense lawyers
and judges to provide information about case law
legislation, and advocacy affecting the prosecution, defense
and administration of criminal cases in Colorado state and
federal courts.
Column Editors:
Leonard Frieling, a criminal defense attorney in private
practice, Boulder - (303) 449-0092, lfrieling@lfrieling.com;
Morris Hoffman, a judge for the Second Judicial District
Court, Denver
About The Author:
This month's article was written by David R. Juarez,
Northglenn, a shareholder and director with Donelson &
Goodwin, P.C., where he practices civil litigation, personal
injury, and criminal defense - (303) 450-1665, david
juarez@dg-esq.com. He recently was an Adams County
magistrate, responsible for the daily advisement of newly
arrested prisoners.
The author gratefully acknowledges the valuable assistance of
Lori Hughes, an extern from the University of Colorado School
of Law, in the preparation of this article.
Criminal suspects sometimes are arrested and unjustifiably
detained in jail when they are eligible for release on bond.
This article examines the use and misuse of "no
bond" warrants and holds, which may cause the
unreasonable detention of criminal defendants.
The purpose of bail is to "insure the defendant's
presence at the time of trial and not to punish a defendant
before he has been convicted."1 Every day, across the
state, prisoners are being advised of their rights pursuant
to the Colorado Rules of Criminal Procedure
("C.R.Crim.P.").2 Many prisoners may be awaiting
review of their warrantless arrest by a judicial officer and
to have their bond set. Other prisoners have been arrested on
warrants. Prisoners arrested on warrants also are being
advised of their rights, the charges against them, the
location of the originating jurisdiction for the warrant, and
the amount of their bond.
Despite the lack of legal authority for such warrants, it is
common for prisoners to be held on a warrant that indicates
it was issued with "no bond set" by the issuing
judicial officer. Sheriffs' offices and police
departments routinely interpret these warrants as "no
bond" holds and, accordingly, detain the individuals
until the sheriff from the issuing jurisdiction arranges to
transport them to the jurisdiction from which the warrant was
issued, if applicable.
Courts have been issuing no bond hold warrants without legal
authority to do so in new non-capital offenses. It has been
the author's experience that no bond hold warrants have
been issued for failure to: (1) appear on hearing dates or
review dates; (2) comply with probation sentences; and (3)
comply with deferred sentences.
This article examines the procedural protections afforded to
people so detained. It also discusses the legality of denying
bond to the criminally accused, as well as the
constitutionality of no bond warrants and holds.
Arrests on New Charges And Granting of Bail
Individuals are subject to arrest on a finding of probable
cause supported by a sworn affidavit.3 Usually, the
magistrate or county court judge is called on to review an
affidavit in support of a warrantless arrest (discussed
below). Individuals arrested on new charges are entitled to
be brought promptly before a magistrate or judge to have bond
set,4 with certain limited exceptions provided by the
Colorado Constitution and other state law.5
Although a presumption in favor of granting bail is
applicable in all cases, it may be rebutted in capital cases,
as well as in some non-capital cases involving crimes of
violence.6 Such rebuttal requires reasonable notice to the
parties and a hearing within ninety-six hours of arrest. To
be nonbailable in non-capital cases, the proof must be
evident or the presumption great that: (1) the accused
committed the felony to be charged; or (2) the public would
be placed in significant peril if the accused were released
on bail.7
Defendants charged with new crimes of violence may be denied
bail if they have two or more prior felony convictions or one
prior felony conviction for a crime of violence.8 Bond also
may be denied to a defendant who is a previous offender if he
or she is specifically charged with the crime of possession
of a weapon.9
The practical effects of denying bond are to deprive the
defendant of his or her liberty and to accelerate the speedy
trial rights of the detained person.10 Except in the case of
a capital offense, if a person is denied bail or the bail
bond is revoked or increased, his or her trial must be
commenced not more than ninety days after the date on which
bail is denied, revoked, or increased.11 If the trial is not
commenced within ninety days and the delay is not
attributable to the defense, the court must immediately
schedule a bail hearing and set the amount of the bail for
the defendant.12
State law provides a process for the application for bail for
offenses not subject to the exceptions for bail discussed
above.13 State law also directs any judge of a court of
record to set bail if such bail has not been indicated on a
warrant, as required by C.R.Crim.P. 4.14 Further, state law
authorizes the district attorney to be heard on the issue of
bail.15
The Eighth Amendment to the U.S. Constitution proscribes
excessive bail, excessive fines, and the infliction of cruel
and unusual punishment. The provisions for bail for the
criminally accused contained in the Colorado Constitution are
consistent with the requirements of the Eighth Amendment.16
Warrantless Arrests
It is not uncommon for detainees to be held longer than
forty-eight hours, without bond being set until after the
defendant's first court appearance. However, this
practice is contrary to case law. In County of Riverside v.
McLaughlin,17 the U.S. Supreme Court ruled that persons
arrested without a warrant are entitled to a prompt
determination of probable cause by a magistrate or judge. The
Court relied on its earlier pronouncement in Gerstein v.
Pugh,18 which determined that a state has no legitimate
interest in detaining, for extended periods, an individual
who has been
arrested without a determination of probable cause...
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