Arizona

Criminal Procedure

Rule 7.2 – Right to Release

(a)Before Conviction; Bailable Offenses.

(1)Presumption of Innocence. A defendant charged with a crime but not yet convicted is presumed to be innocent.

(2)Right to Release. Except as these rules otherwise provide, any defendant charged with an offense bailable as a matter of right must be released pending and during trial on the defendant’s own recognizance with only the mandatory conditions of release required under Rule 7.3(a). This rule does not apply if the court determines that such a release will not reasonably assure the defendant’s appearance or protect the victim, any other person, or the community from risk of harm by the defendant. If the court makes such a determination, it must impose the least onerous conditions of release set forth in Rule 7.3(c).

(3)Determining Method of Release or Bail Amount. In determining the method of release or the amount of bail, the court must consider the factors set forth in A.R.S. § 13-3967(B).

(b)Before Conviction: Defendants Charged with an Offense Not Eligible for Bail.

(1)Not Eligible Based on Commission of a Specified Felony or Any Felony While on Pretrial Release. A defendant must not be released if the court finds the proof is evident or the presumption great that the defendant committed:

(A) a capital offense or a sexual assault; or

(B) any felony offense while the defendant was on pretrial release for a separate felony charge.

(2)Not Eligible Based on Commission of any Felony and Other Factors. Under article 2, section 22(A)(3) of the Arizona Constitution, the court may not release any defendant charged with a felony if the court finds all of the following:

(A) the proof is evident or the presumption great that the defendant committed one or more of the charged felony offenses;

(B) clear and convincing evidence that the defendant poses a substantial danger to the victim, any other person, or the community or, on certification by motion of the state, the defendant engaged in conduct constituting a dangerous crime against children or terrorism; and

(C) no condition or combination of conditions of release will reasonably assure the safety of the victim, any other person, or the community.

(3)Bail Eligibility Considerations. In making the determinations required by (b)(2)(B) and (b)(2)(C), the court must consider:

(A) the nature and circumstances of the offense charged, including whether the offense is a “dangerous offense” as defined in A.R.S. § 13-105;

(B) the weight of the evidence against the defendant;

(C) the history and characteristics of the defendant, including the defendant’s character, physical and mental condition, past conduct including membership in a criminal street gang, history relating to drug or alcohol abuse, and criminal history;

(D) the nature and seriousness of the danger to the victim, any other person, or the community that would be posed by releasing the defendant on bail, including any threat to a victim or other participants in the judicial process;

(E) the recommendation of the pretrial services program based on an appropriate risk assessment instrument;

(F) any victim statement about the offense and release on bail; and

(G) any other factor relevant to the determination required under (b)(2)(B) and (b)(2)(C).

(4)Bail Eligibility Hearing.

(A) Generally. The superior court must hold a hearing to determine whether a defendant held in custody under Rule 4.2(a)(8) is not eligible for bail as required under (b)(1) or (b)(2), unless the defendant waives this hearing.

(B) Timing. If the State makes an oral motion under A.R.S. § 13-3961(E), the court must hold this hearing within 24 hours of the initial appearance, subject to continuances as provided in A.R.S. § 13-3961. If this motion is not made, the hearing must be held as soon as practicable, but no later than 7 days after the initial appearance unless the detained defendant moves for a continuance or the court finds that extraordinary circumstances exist and delay is indispensable to the interests of justice. For this purpose, extraordinary circumstances are events that would prohibit the hearing from occurring and that are beyond the prosecutor’s control. Upon a finding of extraordinary circumstances, the court may continue the hearing once and for no more than 3 calendar days.

(C) Determination of Probable Cause and Release Conditions. If the court does not find the proof evident or the presumption great under (b)(1) or (b)(2)(A)and there has been no prior finding of probable cause for the charges by a grand jury or through a preliminary hearing, the court must determine whether there is probable cause to believe that an offense was committed and that the defendant committed it.

(i)Probable Cause Found. If the court finds probable cause, or probable cause for the charges was previously determined by a grand jury or through a preliminary hearing, the court must determine release conditions under (a).

(ii)No Probable Cause Found. Unless there was a finding of probable cause for the charges by a grand jury or through a preliminary hearing, If the court does not find probable cause, the defendant must be released from custody. Upon the State’s request, the court must schedule a preliminary hearing as provided in Rule 5.1(a). If the state does not request a preliminary hearing, the court must dismiss the complaint and discharge the defendant, unless probable cause for the charges was previously determined by a grand jury or through a preliminary hearing.

(D) Effect of Findings. If the court finds the proof is evident or the presumption great or finds probable cause, upon the State’s request, the court will hold the defendant to answer before the superior court as provided in Rule 5.4(a).

(E) Findings on the Record. The court’s findings must be on the record.

(c)After Conviction.

(1)Superior Court.

(A) Before Sentencing. After a defendant is convicted of an offense for which the defendant will, in all reasonable probability, receive a sentence of imprisonment, the court may not release the defendant on bail or on the defendant’s own recognizance unless:

(i) the court finds that reasonable grounds exist to believe that the conviction may be set aside on a motion for new trial, judgment of acquittal, or other post-trial motion; or

(ii) the parties stipulate otherwise and the court approves the stipulation.

(B) After a Sentence Involving Imprisonment. If a defendant is convicted of a felony offense and is sentenced to prison, the court may not release the defendant on bail or on the defendant’s own recognizance pending appeal unless the court finds the defendant is in such a physical condition that continued confinement would endanger the defendant’s life.

(C) Protecting Safety. In determining release conditions if the defendant is released under (c)(1)(A) or (B), the court must impose conditions that will protect the victim, any other person, or the community from risk of harm by the defendant.

(D) After Sentence, Pending Appeal. If a defendant is released pending appeal but fails to diligently pursue the appeal, the court must revoke the release.

(E) Release upon Sentence Completion. A defendant held in custody pending appeal must be released if the term of incarceration is completed before the appeal is decided.

(2)Limited Jurisdiction Courts.

(A) Conditions of Release on Appeal. If a defendant files a timely notice of appeal of a conviction for an offense for which the court has imposed a sentence of incarceration, the defendant may remain out of custody under the same conditions of release imposed at or after the defendant’s initial appearance or arraignment.

(B) Lack of Diligence on Appeal. If a defendant is released pending appeal but fails to diligently pursue the appeal, the court must revoke the release.

(C) Motion to Amend Conditions of Release.

(i) Upon the filing of a timely notice of appeal, the court–on motion or on its own–may amend the conditions of release if it finds a substantial risk exists that the defendant presents a danger to the victim, another person or the community, or the defendant is unlikely to return to court if required to do so after the appeal concludes.

(ii) The court must hear a motion under this rule no later than 3 days after filing, although it may continue the hearing for good cause. The defendant may be detained pending the hearing. The hearing must be on the record, and the defendant is entitled to representation by counsel. Any testimony by the defendant is not admissible in another proceeding except as it relates to compliance with prior conditions of release, perjury, or impeachment. The court must state its findings on the record.

(iii) The court may amend the conditions of release in accordance with the standards set forth in Rule 7.3 and Rule 7.4(b). In determining the method of release or the amount of bail, the court must consider the nature and circumstances of the offense, family or local ties, employment, financial resources, the defendant’s character and mental condition, the length of residence in the community, the record of arrests or convictions, the risk of harm to the victim, other persons, or the community, and appearances at prior court proceedings.

(D) Release upon Sentence Completion. A defendant held in custody pending appeal must be released if the defendant’s term of incarceration is completed before the appeal is decided.

(E) Superior Court Review. If the trial court enters an order setting a bond or requiring incarceration during the appeal, the defendant may petition the superior court to stay the execution of sentence and to allow the defendant’s release either without bond or on a reduced bond.

(d)Burden of Proof. A court must determine issues under (a) and (c) by a preponderance of the evidence. The State bears the burden of establishing factual issues under (a), (b) and (c)(2). The defendant bears the burden of establishing factual issues under (c)(1).

Ariz. R. Crim. P. 7.2

Added August 31, 2017, effective January 1, 2018. Amended Sept. 28, 2017, effective April 2, 2018; amended August 27, 2019, effective January 1, 2020.

HISTORICAL AND STATUTORY NOTES

Former Rule 7.2, relating to right to release, was abrogated effective January 1, 2018.

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