Chapter 1 - § 1.3 • BAIL AND BOND

• Jurisdiction: Colorado

§ 1.3 • BAIL AND BOND

§ 1.3.1—Summary

"Bail" is a security that may include a bond, with or without monetary conditions, that is required by a court for the release of a person in custody. Bail is set to provide a reasonable assurance of public safety and appearance in court of the defendant. C.R.S. § 16-1-104(3). A "bond" is an undertaking, with or without security or sureties, binding the defendant to comply with the conditions of the undertaking, i.e., to come to court when ordered and comply with any other court-ordered conditions on the bond. C.R.S. § 16-1-104(5). A "personal recognizance" bond is a bond that is secured only by the defendant. C.R.S. § 16-1-104(13). A "co-signed personal recognizance bond" requires the signature and promise of a person or persons other than the defendant, but does not require the posting of any other security.

All persons charged with DUI are eligible for bail. Colo. Const. art. II, § 19; C.R.S. §§ 16-2-111 and 16-4-101. Except in limited circumstances, any person charged with DUI, DUI per se, or DWAI is bailable by sufficient sureties. C.R.S. §§ 16-2-111 and 16-4-101(1). Any person charged with a misdemeanor in county court shall be admitted to bail pursuant to the provisions of article 4 of title 16, C.R.S. C.R.S. § 16-2-111. C.R.S. § 16-2-111 also provides the authority to establish a bond schedule that may be used by judicially designated officers, such as bond commissioners, when a judge is not immediately available. Any person in custody for whom no bond has been set has the right to request the court to set bond and conditions of release. A hearing should be held and bond and conditions of release should be set whether or not charges have been filed. C.R.S. § 16-4-102.

The Eighth Amendment to the U.S. Constitution and article II, section 20 of the Colorado Constitution prohibit excessive bail. C.R.S. § 16-4-103(4)(a) requires that any "monetary condition of release must be reasonable." The power to grant bail is inherent in the judicial function and is derived not from the constitution, but from the common law. Yording v. Walker, 683 P.2d 788 (Colo. 1984); People v. Sanders, 522 P.2d 735 (Colo. 1974).

The power to fix the amount of bail is a matter of judicial discretion and will not be disturbed except in a clear case of abuse of discretion. Balltrip v. People, 401 P.2d 259 (Colo. 1965). However, the purposes for which bail is imposed should be met by means that impose the least possible hardship on the accused. People v. Sanders, 522 P.2d 735 (Colo. 1974).

The purpose of bail is not to punish the defendant before he or she has been convicted. Lucero v. District Court, 532 P.2d 955 (Colo. 1975). The purpose of setting bail and requiring the posting of a bond before an accused is released from custody is to ensure the presence of the accused at trial. Hafelfinger v. District Court, 674 P.2d 375 (Colo. 1984); Wesson v. Johnson, 579 P.2d 1165 (Colo. 1978). Bail should be reasonably sufficient to secure the defendant's presence at trial and should not be more than is reasonably sufficient to prevent evasion of the law by flight or concealment. Palmer v. District Court, 398 P.2d 435 (Colo. 1965). The right to bail does not amount to a guarantee that every defendant who is charged with a crime will be released without bail if he or she is indigent. People v. Jones, 489 P.2d 596 (Colo. 1971).

The criteria the court should consider in establishing the amount of bail and the type of bond are set out by statute and are discussed in § 1.3.2, below. The court must impose certain conditions on all bonds and may impose certain other conditions as long as those conditions are reasonably related to the purposes of bail and bond. Bond conditions are addressed in § 1.3.4.

Bond may not be unilaterally modified by the court, but may be modified upon proper notice and hearing. Bond modification is discussed in § 1.3.5. Failure of the defendant to appear results in a forfeiture of the bond. Bond cannot be extended beyond conviction without the surety's consent. The rights of sureties on a bond, both professional and non-compensated, are described in §§ 1.3.7 and 1.3.8, respectively.

§ 1.3.2—Criteria for Setting Bail

The criteria the court should consider in establishing the amount of bail and the type of bond are set out by statute in C.R.S. § 16-4-103. In determining the type of bond and the conditions of release, the judge shall consider and be governed by the following criteria:

(3) (a) The type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the defendant as required and to protect the safety of . . . the community . . . .

(b) In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.

(4) When the type of bond and conditions of release are determined by the court, the court shall:

(a) Presume that all persons in custody are eligible for release on bond with the appropriate and least-restrictive conditions consistent with provisions in paragraph (a) of subsection (3) of this section unless a person is otherwise ineligible for release pursuant to the provisions of section 16-4-101 and section 19 of article II of the Colorado constitution. A monetary condition of release must be reasonable, and any other condition of conduct not mandated by statute must be tailored to address a specific concern.
(b) To the extent a court uses a bond schedule, the court shall incorporate into the bond schedule conditions of release and factors that consider the individualized risk and circumstances of a person in custody and all other relevant criteria and not solely the level of offense; and
(c) Consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration and levels of community-based supervision as conductions of pretrial release.

(5) The court may also consider the following criteria as appropriate and relevant in making a determination of the type of bond and conditions of release:

(a) The employment status and history of the person in custody;
(b) The nature and extent of family relationships of the person in custody;
(c) Past and present residences of the person in custody;
(d) The character and reputation of the person in custody;
(e) Identity of persons who agree to assist the person in custody in attending court at the proper time;
(f) The likely sentence, considering the nature and the offense presently charged;
(g) The prior criminal record, if any, of the person in custody and any prior failures to appear for court;
(h) Any facts indicating the possibility of violations of the law if the person in custody is released without certain conditions of release;
(i) Any facts indicating that the defendant is likely to intimidate or harass possible witnesses; and
(j) Any other facts tending to indicate that the person in custody has strong ties to the community and is not likely to flee the jurisdiction.

(6) When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.

§ 1.3.3—Types of Bonds and the Limits Thereon

In addition to setting the amount of any monetary conditions, the judge has several alternatives as to what kind of bond is appropriate for the pretrial release of a person in custody. Often, the selection of the type of bond that may be posted is more important than the monetary conditions of release. C.R.S. § 16-4-104(1) provides that bond may be a personal recognizance (signed by the defendant) or a co-signed personal recognizance (signed by both the defendant and some other appropriate person or persons). A court may require a secured bond, i.e., a bond secured by cash, stocks and bonds, surety, or real estate. Paragraphs (1)(c) and (1)(d) of the statute establish certain requirements for each of these types of bonds.

C.R.S. § 16-4-113, as amended effective April 25, 2019, provides that, except when certain identified risks exist, bond shall be a personal recognizance bond for unclassified offenses where the maximum penalty does not exceed six months' imprisonment. A first offense of DWAI is punishable by up to 180 days in jail, so, theoretically, a person charged only with first-offense DWAI is entitled to a personal recognizance bond, unless the other risk factors of C.R.S. § 16-4-113(1)(a) through (f) apply.

C.R.S. § 16-4-113(1)(a) through (f) are as follows:

(a) The arrested person fails to sufficiently identify himself or herself; or
(b) The arrested person refuses to sign a personal recognizance; or
(c) The continued detention or posting of a surety bond is necessary to prevent imminent bodily harm to the accused or to another; or
(d) The arrested person has no ties to the jurisdiction of the court reasonably sufficient to assure his or her appearance, and there is substantial likelihood that he or she will fail to appear for trial if released upon his or her personal recognizance; or
(e) The arrested person has previously failed to appear for trial for an offense concerning which he or she had given his written promise to

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