SB3068 HD1.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- Exoneration from bail bond liability. (a) Any person executing a bail bond as principal or as surety shall be exonerated as follows:

(1) When the condition of the bond has been satisfied;

(2) When the amount of the forfeiture has been paid;

(3) When the surety or bail agent appears and provides satisfactory evidence to the court that the defendant is unable to appear before the court due to the defendant's death or detention or incarceration in a foreign jurisdiction, if the defendant is incarcerated for a period in excess of ninety days and the State is unable or has refused to extradite the defendant; provided that if the State extradites the defendant, all costs associated with the extradition shall be borne by the surety or bail agent up to the amount of the bond.

For the purposes of this paragraph, "costs associated with extradition" shall be calculated as and limited to the round-trip mileage between the Hawaii court of jurisdiction and the location of the defendant's incarceration at the rate allowed for reimbursement, up to the amount of the bond;

(4) When bail is revoked pursuant to section 804-7.3 or otherwise and the defendant is before the court or otherwise in custody; or

(5) Upon surrender of the defendant into custody pursuant to section 804-14 or 804-41 at any time before a judgment has been entered against the sureties for forfeiture of the bond, or until one year after the payment of the judgment, upon payment of all costs occasioned thereby. A surety or bail agent may seize and surrender the defendant to the chief of police of the county wherein the bond is taken, and it is the duty of the chief of police, on such surrender and delivery of a certified copy of the bond by which the surety or bail agent is bound, to take the person into custody and acknowledge the surrender in writing.

(b) Upon entry of an order for deferred prosecution or deferred judgment, sureties or bail agents upon any bond given for the appearance of the defendant shall be released from liability on the bond.

(c) A trial court has no jurisdiction to relieve the surety or bail agent from liability on a bail bond, except on grounds generally recognized by the law as excusing the performance of a contract, and such grounds exist only when the appearance of the accused is made impossible by:

(1) An act of God;

(2) An act of the state that is the beneficiary of the bond; or

(3) An act of law.

§804- Enforcement procedures for bail agents. (a) Each court of record in this State shall implement a board system for the recording and dissemination of the names of those bail agents 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 agents, 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 agents may be enforced, without the necessity of an independent action, as follows:

(1) In the event 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;

(2) If a bond is declared forfeited by the court, notice of a bail forfeiture order shall be served on the bail agent by certified mail and on the bail insurance company by regular mail within ten days after the entry of the forfeiture. Service of notice of the bail forfeiture on the defendant is not required. The notice shall include:

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

(B) An advisement that the bail agent 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 agent does not request a show cause hearing, judgment shall be entered upon expiration of thirty days following the entry of forfeiture;

(3) A bail agent, upon whom notice of a bail forfeiture order has been served, shall have fifteen days after receipt of notice of the forfeiture to request a hearing to show cause why judgment on the forfeiture should not be entered for the State against the bail agent. 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, if requested by the bail agent, the court may enter judgment for the State against the bail agent, 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 agent if the bail agent did not request a hearing to show cause;

(4) 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 agent shall not be vacated on the grounds that the matter was not timely heard. If judgment is entered against a bail agent 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;

(5) 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, on its own motion, shall direct that the bail forfeiture be set aside and the bond exonerated at the time the defendant first appears in court; provided that if the State extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety or bail agent up to the amount of the bond;

(6) If, at a time prior to the entry of judgment, the surety or bail agent provides proof to the court that the defendant is in custody in any other jurisdiction within the State, the court, on its own motion, shall direct that the bail forfeiture be set aside and the bond exonerated; provided 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;

(7) A bail agent 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 surety or bail agent 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, on its own motion, shall direct that the bail forfeiture judgment be vacated and the bond exonerated; provided 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;

(8) Execution upon the bail forfeiture judgment shall be automatically stayed for ninety days from the date of entry of judgment; provided that if judgment is entered against a bail agent upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty days after the entry of forfeiture, the judgment shall be automatically stayed;

(9) Upon the expiration of the stay of execution described in paragraph (8), the bail forfeiture judgment shall be paid forthwith by the bail agent, 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;

(10) If a bail forfeiture judgment is not paid on or before the expiration date of the stay of execution, the name of the bail agent shall be placed on the board of the court that entered the judgment. The bail agent 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;

(11) If a bail forfeiture judgment remains unpaid for thirty days after the name of the bail bond agent is placed on the board, the court shall send notice by certified mail to the bail insurance company for whom the bail bond agent has executed the bond that, if the judgment is not paid within fifteen days after the date of mailing of the 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;

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

(13) The court may order that a bail forfeiture judgment be vacated and set aside or that execution thereon be stayed upon conditions as the court may impose, if it appears that justice so requires, as provided in chapter 804; provided that trial court has no jurisdiction to relieve the surety or bail agent from liability on a bail bond except as provided in chapter 804;

(14) A bail agent 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. 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, on its own motion, shall direct that the bail forfeiture judgment be vacated and the bond exonerated; provided 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;

(15) A bail agent or bail insurance company may surrender a defendant within one year of paying a judgment;

(16) If, within one year after payment of the bail forfeiture judgment, the bail agent 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;

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

(18) 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 the surety or bail agent satisfies the court that appearance and surrender by the defendant was impossible and without fault by the defendant. The court may order that a forfeiture be set aside and judgment vacated as set forth in this section; and

(19) If the name of a bail agent is placed on the board, and remains on the board for the same forfeiture for more than forty-five consecutive days, the court that placed the name of the bail agent on the board shall order the insurance commissioner to suspend the license of the bail agent until such time as all forfeitures and judgments ordered and entered against the bail agent 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 board, the insurance commissioner shall also order the bail insurance company on the bond to pay the judgment after notice and hearing."

SECTION 2. Chapter 804-1, Hawaii Revised Statutes, is amended to read as follows:

"§804-1 [~~Bail defined.~~] Definitions. [~~Bail, or the giving of bail, is~~] As used in this part, unless the context otherwise requires:

"Bail" or the "giving of bail" means the signing of the recognizance or bail bond by the defendant and the defendant's surety or sureties, conditioned [~~for~~] on the appearance of the defendant at the session of a court of competent jurisdiction, to be named in the condition, and [~~to abide~~] on the defendant abiding by the judgment of the court[.], a financially secured appearance, cash, or other bond

"Bail agent" or "bail bond agent" means any person who gives bail or bail bonds for compensation in a court of competent jurisdiction in this State, is subject to the director of commerce and consumer affairs, and who is appointed by an insurer by power of attorney to execute or countersign bail bonds in connection with judicial proceedings, including a compensated surety. "Bail agent" or "bail bond agent" shall not include a person who is a full-time, salaried officer or employee of an insurer or a person who pledges United States currency, a United States postal money order, a cashier's check, or other property as security for a bail bond in connection with a judicial proceeding, whether for compensation or otherwise.

"Bail fugitive" means a defendant in a pending criminal case who has been released from custody under a financially secured bail, cash, or other bond and has had that bond declared forfeited, or a defendant in a pending criminal case who has violated a bond condition whereby apprehension and re-incarceration are permitted.

"Bail insurance company" means an insurer engaged in the business of writing bail appearance bonds through bonding agents and is subject to regulation by the insurance commissioner of the department of commerce and consumer affairs.

"Depositor of bail" means a person or entity that has deposited money, stocks, bonds, or other real or personal property to secure the release of a person charged with a crime or offense.

"Insurance commissioner" or "commissioner" means the insurance commissioner of the State.

"On the board" means that the name of a bail agent that has been publicly posted or disseminated by a court as being ineligible to write bail bonds."

SECTION 3. Chapter 804-14, Hawaii Revised Statutes, is amended to read as follows:

"§804-14 Discharge of sureties. Those who may have [~~become bail~~] given bail for anyone, may at any time discharge themselves, by surrendering him to the custody of any sheriff or chief of police or his authorized subordinate who shall take custody of the principle as required by section 804 -(a)(5)."

SECTION 4. Chapter 804-17, Hawaii Revised Statutes is amended to read as follows:

"§804-17 Prompt appearance and response; default. The names of all persons who have given bail or have become bound by recognizance to appear in any court, shall be called in open court on the day and at the time they are respectively bound to appear, and if they fail to appear promptly and respond thereto, their default shall be entered, and the entry shall be evidence of the breach of their appearance bonds or recognizances in proceedings to enforce or exonerate a forfeiture pursuant to this part."

SECTION 5. Section 804- 51, Hawaii Revised Statues, is amended to read as follows:

"§804-51 Procedure for bail forfeiture. Whenever the court, in any criminal cause, forfeits any bond or recognizance given in a criminal cause, the court shall immediately enter [~~up judgment~~] a forfeiture in favor of the State and against the principal or principals [~~and surety or sureties~~], bail agent and bail insurance company on the bond, jointly and severally, for the full amount of the penalty thereof, and shall cause execution to issue thereon immediately after the expiration of thirty days from the date that notice is given via personal service or certified mail, return receipt requested, to the [~~surety or sureties on the bond,~~] bail agent and bail insurance company of the entry of the judgment in favor of the State, unless before the expiration of thirty days from the date that notice is given to the [~~surety or sureties on the bond~~] bail agent and bail insurance company of the entry of the [~~judgment~~] forfeiture in favor of the State, a motion or application of the principal or principals, [~~surety or sureties~~] bail agent and bail insurance company, or any of them, showing good cause why execution should not issue upon the [~~judgment~~] forfeiture, is filed with the court. If the motion or application, after a hearing held thereon, is sustained, the court shall vacate the [~~judgment of~~] forfeiture and, if the principal surrenders or is surrendered pursuant to section 804-14 or section 804-41, return the bond or recognizance to the principal or surety, whoever shall have given it, less the amount of any cost, as established at the hearing, incurred by the State as a result of the nonappearance of the principal or other event on the basis of which the court forfeited the bond or recognizance. If the motion or application, after a hearing held thereon, is overruled, execution shall forthwith issue and shall not be stayed unless the order overruling the motion or application is appealed from as in the case of a final judgment.

This section shall be considered to be set forth in full in words and figures [in], and to form a part of, and to be included in, each and every bond or recognizance given in a criminal cause, whether actually set forth in the bond or recognizance, or not.

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect on July 1, 2050.

THE SENATE	S.B. NO.	3068
TWENTY-SIXTH LEGISLATURE, 2012		S.D. 1
STATE OF HAWAII		H.D. 1