20 Good Behavior Bonds

20. GOOD BEHAVIOR BONDS

20.1 ISSUANCE

20.11 May only be issued by judicial officer authorized to hold court of inquiry [OCGA 17-6-90].

20.12 Probable Cause Basis:

A. May be based upon another's sworn affidavit; OR

B. Court's own motion. -- CAUTION -- Court's discretion must not be "arbitrary or capricious." Probable cause MUST exist. Judge should state basis in order or signed memorandum.

20.13 Grounds:

A. Conduct of person in the county;

B. Directed at person or property in the county;

C. Justifying belief that:

1. safety of person is endangered, or

2. personal peace may be disturbed, or

3. person's property may be disturbed, or

4. person's property may be injured [OCGA 17-6-90(a)]

D. Can't be purely speculative. Conduct in county of issuing court must reasonably justify the belief.

RECOMMENDATION - It is the opinion of the Benchbook Committee that the use of Good Behavior Bonds be restricted to situations sufficient to find probable cause that a criminal offense has occurred or is imminent. [see generally [Foster v. Withrow, 201 Ga. 260, 39 SE2d 466 (1946)]. Examples might be: (1) a crime has occurred, but the victim is not wishing a criminal prosecution; (2) probable cause exists of terroristic threats but there is not sufficient corroboration for conviction; (3) probable cause exists for cross-warrants against both parties; (4) seriousness of "criminal" conduct does not yet warrant prosecution, but some action is needed to prevent escalation; recent actions or statements indicate a clear intent to commit a criminal offense soon. See Parker v. Leeuwenburg, 2017 WL 875104 (S16A1505, decided March 6, 2017) (dissent believes the statute is subject to a constitutional challenge for vagueness and overbreadth).

20.2 HEARING OR APPEARANCE BOND

20.21 Normal procedure is now to set show cause hearing at the time of the application or motion [OCGA 17-6-90(a)].

A. The hearing is set within seven days.

B. If the court finds insufficient cause for the hearing, costs are imposed on the applicant (statute does not base costs on non-issuance of bond but on a court finding of insufficient cause for the hearing} [OCGA 17-6-90(c)].

20.22 In court's discretion, upon a showing, at the time of the application or thereafter, that danger is imminent, arrest can be made before hearing [OCGA 17-6-90(d)].

If respondent is arrested, hearing must be held within 24 hours or reasonable bond must be set.

20.23 Bail amount must be reasonable and should be reasonably related to apparent danger; may not be used to punish defendant. Set by issuing court [OCGA 17-6-90(da)].

20.24 Conditions- OCGA 17-6-90(d) permits reasonable conditions for his or her "good behavior" not just appearance at hearing:

A. Set by issuing court;

B. Must be reasonable:

1. may not be punitive;

2. no permanent effect on rights of defendant;

3. must reasonably relate to the problem (e.g., shouldn't restrict use of alcohol where no indication alcohol is part of the problem);

4. must not require what is clearly impossible.

C. Should require hearing appearance;

D. Must be given to defendant and surety. [OCGA 17-6-90(da); URMC § 23].

20.25 Appearance bond is returnable only to issuing court and is amendable as to amount or conditions [OCGA 17-6-90(b)].

20.26 Defendant must be released on appearance bond if not brought before court within 24 hours [OCGA 17-6-90(a)]; only alternative to release on appearance bond is to hold evidentiary hearing within 24 hours of arrest.

20.3 HEARING

20.31 Defendant entitled to hearing within 24 hours if not admitted to bail [OCGA 17-6-90(d)]. If defendant not arrested, show cause hearing is set within 7 days.

20.32 Statute now requires hearing without need of request from Respondent/defendant. (Also the presence of both sides a hearing is needed for the proper formulation of bond conditions.

20.33 State or complaining party carries burden of proof at ALL stages [189 Ga. 623, 7 SE2d 251 (1940); 201 Ga. 260, 39 SE2d 466 (1946)].

20.34 Procedure is penal so "sufficient cause" beyond a reasonable doubt respondent/defendant is entitled to due process similar to that of criminal defendants [Foster v. Withrow, 201 Ga. 260...

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