COMMITTEE SUBSTITUTE
FOR
H. B. 2002
(By Delegate Beane)
(Originating in the Committee on the Judiciary)
[March 7, 2005]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §51-11-1, relating to
a bail bond forfeiture code, generally; issuing an arrest
warrant for nonappearing defendant; time period allowed surety
to produce the defendant; additional period for cause; when
bail bond exonerated; penalties to fleeing defendant; and
refunds following forfeiture.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §51-11-1, to read as
follows:
ARTICLE 11. BAIL BOND FORFEITURE CODE.
§51-11-1. Required actions of the court upon nonappearance.
In addition to the provisions of article one-c, chapter
six-two of this code:
(a) If a defendant admitted to bail knowingly and
intentionally fails to appear as ordered, the court shall:
(1) Issue an arrest warrant for the defendant;
(2) Allow ninety days to allow the surety to produce the
defendant, and upon a showing to the court that the surety is
making a diligent and thorough search for the defendant and that
additional time granted is likely to result in the apprehension of
the defendant, the court may allow surety an additional like
period, prior to execution upon any default judgment order on the
bond forfeiture;
(3) Set aside the declared forfeiture or set aside any related
default judgment order and remit the bail bond if the defendant is
found to have been incarcerated in any local, state or federal
correctional institution at the time of the defendant's failure to
appear; and
(4) Set aside any related default judgment order and refund to
the surety the money paid to the court on forfeiture if the surety
locates and returns the defendant to the original jurisdiction
within a period of three years following the date of the
defendant's failure to appear, as long as the delay has not
thwarted the proper prosecution of the defendant, subject to the
following offsets or reductions:
(A) If, within one year after the defendant's failure to
appear, the defendant is returned to the custody of the court, and
the delay has not thwarted the proper prosecution of the defendant,
the court may remit up to one hundred percent of the amount paid by
the surety or other persons responsible on the bond, less necessary
and actual costs and expenses;
(B) If, within two years after the defendant's failure to
appear, the defendant is returned to the custody of the court, and
the delay has not thwarted the proper prosecution of the defendant, the court may remit up to ninety percent of the amount paid by the
surety or other persons responsible on the bond, less necessary and
actual costs and expenses; and
(C) If, within three years after the defendant's failure to
appear, the defendant is returned to the custody of the court, and
the delay has not thwarted the proper prosecution of the defendant,
the court may remit up to eighty percent of the amount paid by the
surety or other persons responsible on the bond, less necessary and
actual costs and expenses.
(D) Any moneys collected upon forfeiture of an appearance bond
shall be held by the clerk of the court in an interest bearing
account, and shall not be forwarded to the State Auditor's office
until more than three years have elapsed from the defendant's
failure to appear, to allow for a potential refund of all or part
of the amount paid by the surety, in accordance with the provisions
of this section. The accumulation of interest on any amounts held
in account during the potential refund period shall inure to the
benefit of the state, and no portion of the accumulated interest
shall be remitted to the surety or other persons seeking refund of
all or part of a forfeited bond.
(E) In the event that a court finds and determines that the
delay in presenting a defendant has thwarted the proper prosecution
of the defendant, thereby defeating a surety or other person's
request for refund under this section, the court shall set forth
the factual findings and determinations which the court relied upon
in concluding that the proper prosecution of the defendant has been
thwarted by the delay, as a part of its written order denying the
refund request.
(b) If a defendant is found to have, in any court of record,
knowingly and intentionally breached a bail bond the court shall
not:
(1) Release the defendant on his or her personal recognizance;
or
(2) Set bail for the defendant in an amount less than twice
the amount of the bond previously breached.
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