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Rule 5.4 – Hearings for violation of conditions of release

May 15, 2021 | Criminal Procedure, Delaware, Superior Court

(a)Definitions.

All terms shall have the meanings given them in Rule 5.2(a).

(b)Power of the court to issue summons or warrant. The court, when notified by the State or the Department of Correction of a violation of the defendant’s conditions of release, may issue a summons or a warrant for the arrest of a defendant for violating any condition of release,
(c)Power to arrest and autliorize arrest without a warrant, {)In general.

(1)In general. In addition to the State’s authority to arrest a defendant without a warrant as otherwise provided by law, the Commissioner of the Department of Correction or any probation officer, acting in performance of his or her duties, under exigent circumstances may arrest a supervised defendant without a warrant when in the judgment of the Commissioner or probation officer the supervised defendant has violated any material condition of release, as set forth in 11 Del C. ยง 2114. The Commissioner or probation officer may deputize any other officer with power of arrest to do so by giving that officer a written statement setting forth in what manner the supervised defendant has in the judgment of the Commissioner or the probation officer violated a material condition of release. When an arrest is made by a probation officer or the Commissioner, the officer shall present to the detaining authority a written statement of the circumstances of violation.
(2)Notice to court and detaining authority. Upon arrest and detention under this subsection, the State, the Commissioner, or a probation officer shall immediately notify the court with jurisdiction over the defendant and shall submit to the court a written report showing in what manner the defendant has violated the conditions of release.
(d)Pretrial violations hearing.

If the State, the Commissioner, or a probation officer alleges noncompliance with material conditions of release, or if the defendant is arrested under the authority of a summons or warrant issued for violation of the conditions of release, a probation officer shall take the defendant directly before the court with jurisdiction over the defendant if that court is in session or take the defendant before a magistrate who may revoke or modify the bail, provided that a hearing before the court that has jurisdiction shall be held within 72 hours. The hearing may be summary in nature.

(e)Entry of order,

Upon the completion of a hearing under subsection (d), the court shall enter an order continuing the existing conditions of release, setting different conditions of release, or revoking the defendant’s release. If the court finds that the defendant has breached the conditions of release, the court may require more intensive conditions of release in its discretion and need not order a new pretrial assessment. The court shall revoke the defendant’s release only when the State:

(1) shows that the defendant knowingly violated a condition of release; and
(2) proves, by clear and convincing evidence, that no other condition or combination of conditions of release can reasonably assure the defendant’s appearance at court proceedings, public safety, and that the defendant does not obstruct justice.
(f)Review, An order continuing or modifying the conditions of release under this rule is reviewable by the court only upon a material change in circumstance. The court may rule on subsequent motions with or without a hearing.

Del. R. Crim. P. Super Ct. 5.4

Adopted December 13, 2018, effective January 1, 2019.

Commentary on Interim Rule 5.4.

The Bail Reform Act and these rules are designed to give defendants an opportunity to be released on the least restrictive conditions needed to reasonably assure the defendant’s appearance, public safety, and the integrity of the judicial process. When a defendant receives that opportunity and then fails to comply with the conditions of release, however, the defendant is in a categorically different position.

For that reason, Rule 5.4 gives the court discretion to determine the appropriate consequences of a breach of the conditions of release, including the discretion to impose monetary conditions of release. Although the court may take into account the resuhs of the pretrial assessment in determining those consequences, the court need not follow the results of any prior pretrial assessment, give it any particular weight, or order a new pretrial assessment. Instead, upon a breach of release, the court is entitled to use its discretion under this rule to modify the conditions of release as it deems appropriate to reasonably assure the defendant’s appearance, public safety, and the integrity of the judicial process.