SB3068.DOC

SECTION 1. Chapter 804, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§804- Bail bondsmen defined. A bail bondsmen is a person or entity that gives bail, as defined in section 804-1 and as qualified under section 804-10.5.

§804- Enforcement procedures for bail bondsmen. (a)

Each court of record in this State shall implement a system for the recording and dissemination of the names of bail bondsmen who are prohibited from posting bail bonds in the State due to an unpaid judgment as set forth in this section.

(b) By entering into a bond, each obligor, including the bond principal and bail bondsmen, submits to the jurisdiction of the court and acknowledges the applicability of the forfeiture procedures set forth in this section.

(c) Liability of bond obligors on bonds issued by bail bondsmen may be enforced, without the necessity of an independent action, as follows:

(1) If a defendant does not appear before the court and is in violation of the primary condition of an appearance bond, the court may declare the bond forfeited. If a bond is declared forfeited by the court, notice of the bail forfeiture order shall be served on the bonding agent by certified mail and on the bail insurance company by regular mail within ten days after the entry of said forfeiture. Service of notice of the bail forfeiture on the defendant is not required. The notice shall include but is not limited to:

(A) A statement intended to inform the bail bondsmen of the entry of forfeiture;

(B) An advisement that the bail bondsmen has the right to request a show cause hearing fifteen days after receipt of notice of forfeiture, by procedures set by the court; and

(C) An advisement that if the bail bondsmen does not request a show cause hearing, judgment shall be entered upon expiration of thirty days following the entry of forfeiture.

(d) A bail bondsmen, upon whom notice of a bail forfeiture order has been served, shall have fifteen days after receipt of notice of forfeiture to request a hearing to show cause why judgment on the forfeiture should not be entered for the state against the bail bondsmen. The request shall be granted by the court and a hearing shall be set within thirty days after entry of forfeiture or at the court's earliest convenience. At the conclusion of the hearing requested by the bail bondsmen, if any, the court may enter judgment for the State against the bail bondsmen, or the court may in its discretion order further hearings. Upon expiration of thirty days after the entry of forfeiture, the court shall enter judgment for the State against the bail bondsmen if the bail bondsmen did not request within fifteen days after receipt of notice of such forfeiture a hearing to show cause.

(e) If a show cause hearing was timely set but the hearing did not occur within thirty days after the entry of forfeiture, any entry of judgment at the conclusion of the hearing against the bail bondsmen shall not be vacated on the grounds that the matter was not timely heard. If judgment is entered against a bail bondsmen upon the conclusion of a requested show cause hearing, and the hearing did not occur within thirty days after the entry of forfeiture, execution upon the judgment shall be automatically stayed for no more than one hundred twenty days after entry of forfeiture.

(f) If at any time prior to the entry of judgment, the defendant appears in court, either voluntarily or in custody after surrender or arrest, the court shall on its own motion direct that the bail forfeiture be set aside and the bond exonerated at the time the defendant first appears in court; except that, if the State extradites such defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond.

(g) If, at a time prior to the entry of judgment, the bail bondsmen provides proof to the court that the defendant is in custody in any other jurisdiction within the State, the court shall on its own motion direct that the bail forfeiture be set aside and the bond exonerated; except that, if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond. If the court elects to extradite the defendant, any forfeiture will be stayed until such time the defendant appears in the court where the bond returns.

(h) A bail bondsmen shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or order of the court. If the bail bondsmen provides proof to the court that the defendant is in custody in any other jurisdiction within the State, within ninety days after the entry of judgment, the court shall on its own motion direct that the bail forfeiture judgment be vacated and the bond exonerated; except that, if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond. If the court elects to extradite the defendant, any judgment will be stayed until the time the defendant appears in the court where the bond returns.

(i) Execution upon a bail forfeiture judgment shall be automatically stayed for ninety days from the date of entry of judgment; except that, if judgment is entered against a bail bondsmen upon the conclusion of a requested show cause hearing, and the hearing did not occur within thirty days after the entry of forfeiture, the judgment shall be automatically stayed as set forth in this subsection.

(j) Upon the expiration of the stay of execution, the bail forfeiture judgment shall be paid forthwith by the bail bondsmen, if not previously paid, unless the defendant appears in court, either voluntarily or in custody after surrender or arrest, or the court enters an order granting an additional stay of execution or otherwise vacates the judgment.

(k) If a bail forfeiture judgment is not paid on or before the expiration date of the stay of execution, the name of the bail bondsmen shall be placed on the record of the court that entered the judgment. The bail bondsmen shall be prohibited from executing any further bail bonds in this State until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.

If a bail forfeiture judgment remains unpaid for thirty days after the name of the bonding agent is placed on the record, the court shall send notice by certified mail to the bail insurance company for whom the bonding agent has executed the bond that if the judgment is not paid within fifteen days after the date of mailing of said notice, the name of the bail insurance company shall be placed on the board and the company shall be prohibited from executing any further bail bonds in this State until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.

A bail bondsmen shall be removed forthwith from the record only after every judgment for which the bail bondsmen was placed on the record is satisfied, vacated, discharged, or stayed by entry of an additional stay of execution. No bail bondsmen shall be placed on the board in the absence of the required notice.

(l) The court may order that a bail forfeiture judgment be vacated and set aside or that execution thereon be stayed upon such conditions as the court may impose, if it appears that justice so requires.

(m) In exercising its discretion in any decision or order under this section, a trial court shall be mindful of the policies concerning bail, including the policy that sureties should not be penalized when it appears they are unable, through no fault of their own, to perform the condition of the bond.

Acts of God, of the State, or operation of law relieve a surety from liability. A trial court has no jurisdiction to relieve the surety from liability on a bail bond except on grounds generally recognized by the law as excusing the performance of the undertaking, and grounds exist only when the appearance of accused is made impossible by an act of God, an act of the State which is the beneficiary of the bond, or an act of law. If the principal in a bail bond dies before the day of performance or is prevented by illness from appearing, the case shall be considered as an act of God. If the principal in a bail bond is in prison within the State, pursuant to a judgment of a court of competent jurisdiction of the State, the case shall be considered as an act of the State. Where the party has been turned over to the federal court within the State by a prior bondsmen and is serving a sentence by that court, or if the party has been arrested in the state where the obligation is given and sent out of the State by the governor upon requisition from another state or foreign jurisdiction, the case shall be considered as an operation of law.

(n) When a bail bondsmen enters into a surety agreement, he undertakes a calculated risk, so that events which materially increase that risk have the effect of terminating the obligation.

(o) A bail bondsmen shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or by order of the court. The defendant shall appear at each place, and upon each date to answer the charges, or at a court to which the proceeding is transferred or continued, until an appropriate plea or conviction. If the defendant appears in court, either voluntarily or in custody after surrender or arrest, within ninety days after the entry of judgment, the court, at the time the defendant first appears in court, shall on its own motion direct that the bail forfeiture judgment be vacated and the bond exonerated; except that, if the State extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond.

(p) If within one year after payment of the bail forfeiture judgment, the bail bondsmen effects the apprehension or surrender of the defendant and provides reasonable notice to the court to which the bond returns that the defendant is available for extradition, the court shall vacate the judgment and order a remission of the amount paid on the bond less any necessary and actual costs incurred by the State and the sheriff who has actually extradited the defendant.

(q) Bail bonds shall be deemed valid notwithstanding the fact that a bond may have been written by a bail bondsmen who has been placed on the record and is otherwise prohibited from writing bail bonds. The ineligibility of a bail bondsmen to write bonds because the name of the bail bondsmen has been placed on the record shall not be a defense to liability on any appearance bond accepted by a court.

(r) The automatic stay of execution upon a bail forfeiture judgment shall expire pursuant to its terms unless the defendant appears and surrenders to the court having jurisdiction or satisfies the court that appearance and surrender by the defendant was impossible and without fault by the defendant, in which case the court may order that a forfeiture be set aside and judgment vacated.

(s) If the name of a bail bondsmen is placed on the record, and remains on the record for the same forfeiture for more than forty-five consecutive days, the court that placed the name of the bail bondsmen on the record shall order the suspension of the bail bondsmen from giving bail bonds, after hearing pursuant, until such time as all forfeitures and judgments ordered and entered against the bail bondsmen have been certified as paid or vacated by order of a court of record. If the bail forfeiture judgment is not paid within fifteen days after the name of a bail insurance company has been placed on the record, the court shall also order the bail insurance company on the bond to pay the judgment after notice and hearing."

SECTION 2. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	3068
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII