Rule 5.2. Pretrial release

(a) Release shall be governed by execution of conditions of release bond. Each defendant shall execute a conditions of release bond promising appearance in court and compliance with all conditions ordered by the court and mandated by statute.

(b) Right to pretrial release upon execution of conditions of release bond. Any defendant eligible for pretrial release under 11 Del. C. § 2104 shall be released pending trial upon execution of one of the following:

(1) Any defendant eligible for pretrial release under 11 Del. C. § 2104 shall be released pending trial upon execution of one of the following:

(2) A conditions of release bond not guaranteed by secured financial terms;

(3) A conditions of release bond guaranteed by secured financial terms; or

(4) A conditions of release bond guaranteed by financial terms secured by cash only. Release should be on the least restrictive conditions necessary: to assure the defendant's appearance in court when required; to assure the protection of the community, victims, witnesses, or any other persons; to avoid any identified specific risk of pretrial failure; and, to maintain the integrity of the judicial process.

(c) Initial recommended response indicated by pretrial assessment. In setting the defendant's conditions of release, the court shall use a pretrial assessment tool. The initial recommended response is the determination designated by the pretrial assessment tool, subject to sections (i) and (j) of this rule. In cases involving one or more signal offenses, the pretrial assessment tool shall be used in an advisory manner and the court's discretion guided by section (h) of this rule; sections (i) and (j) of this rule shall not apply to such cases.

(d) Mandatory conditions of release. For every defendant whom the court grants pretrial release, the court shall order all mandatory conditions of release as required by any applicable statute.

(e) Discretionary conditions of release. Except as required by statute, no condition of release is mandatory, but will be ordered as an exercise of judicial discretion consistent with the law and this rule. In setting any discretionary conditions of release, the court shall consider the initial recommended response generated by the pretrial assessment tool, as well as public and specific victim safety concerns.

(f) Conditions of release for domestic violence charges.

(1) Because no risk assessment tool successfully captures risk in cases of domestic violence, the pretrial assessment is intended to be advisory in these matters, and, as such, sections (i) and (j) of this rule shall not apply to such cases.

(2) Whenever the defendant is charged with a domestic violence offense that qualifies as a signal offense, the court should determine the appropriate conditions of release in the same manner described in section (h) of this Rule.

(g) Conditions of release for felony impaired driving charges.

(1) Because no risk assessment tool successfully captures risk in cases of impaired driving, the pretrial assessment is intended to be advisory in these matters, and, as such, sections (i) and (j) of this rule shall not apply to such cases.

(2) Whenever the defendant is charged with violating 21 Del. C. §§ 4177(d)(3)-(7), the court should determine the appropriate conditions of release in the same manner described in section (h) of this Rule.

(h) Offenses identified by statute and signal offenses defined by court rule.

(1) If, at any time prior to initial determination of the terms of a conditions of release bond, it shall appear to the State that the defendant should be subjected to § 2107(c) of Title 11, the State shall expressly move for application of § 2107(c) of Title 11 to the setting of the terms of the defendant's conditions of release bond. The State's motion must be supported by specific averments: of the grounds for application of § 2107(c) of Title 11; that the State has conducted a diligent review of the probable cause alleged for the present charge(s) and the defendant's criminal history; and, that there is a good faith basis to believe that probable cause exists for the charge(s) or circumstances alleged that would trigger application of § 2107(c) of Title 11 in the present case. If it shall appear to the satisfaction of the court at a hearing to determine the terms of a conditions of release bond that the State's motion should be granted and that the defendant falls within § 2107(c) of Title 11, the court shall apply § 2107(c) of Title 11 and shall set the terms of the defendant's conditions of release bond accordingly. The court with jurisdiction at the time of the bail determination may designate the form of the motion.

(2) If the State has not moved for application of § 2107(c) of Title 11, and the defendant is charged with one of the signal offenses set forth in Schedule 5.2B, the initial recommended response shall be in the court's discretion, based upon the entire record, including the defendant's pretrial assessment score and any other factor the court deems to be relevant. But whenever the defendant is charged with one of the signal offenses, the court shall consider whether a conditions of release bond guaranteed by financial terms (including a bond guaranteed by financial terms secured by cash only) is appropriate. And whenever the defendant is charged with one of the signal offenses, the court may, based upon the entire record, including the defendant's pretrial assessment score and any other factor the court deems to be relevant, impose conditions of release other than financial terms that it finds are necessary to address a substantial danger to public or specific-victim safety, a risk of failure to appear at court proceedings, or any other specific risk of pretrial failure specified by the court to exist.

(i) Requirements for imposing more intensive conditions of release than initial recommended response. The court should not require more intensive conditions of release than the initial recommended response based on the defendant's risk of failure to appear at court proceedings or risk to public or specific-victim safety unless:

(1) Prior to the setting of the terms of the defendant's conditions of release bond, the State moves under subsection (h)(1) of this Rule for application of § 2107(c) of Title 11; and

(2) The court finds that the defendant falls within § 2107(c) of Title 11. These findings shall be recorded in written documentation of the reason for departing from the initial recommended response. Or unless

(3) The State makes a recommendation on the record that provides a specific factual basis for a finding that releasing the defendant pursuant to the initial recommended response would pose a substantial danger to public or specific-victim safety, a risk of failure to appear at court proceedings, or some other specific risk of pretrial failure; and

(4) The court makes findings of fact supporting its conclusion that releasing the defendant pursuant to the initial recommended response would pose a substantial danger to public or specific-victim safety, a risk of failure to appear at court proceedings, or some other specific risk of pretrial failure. These findings shall be recorded in written documentation of the reason for departing from the initial recommended response. Or unless

(5) The court, sua sponte, makes findings of fact on the record supporting its conclusion that requiring more intensive conditions of release is necessary to address a substantial danger to public or specificvictim safety, a risk of failure to appear at court proceedings, or some other specific risk of pretrial failure. These findings shall be documented in a written order overriding the initial recommended response.

(j) Downward departures from the initial recommended response. Notwithstanding the initial recommended response, the court may require less-intensive conditions of release if the court finds that less-intensive conditions would be adequate to reasonably assure the defendant's appearance at court proceedings and ensure public and specific-victim safety. These findings shall be recorded in written documentation of the reason for departing from the initial recommended response, unless such action is over the objection of one or more parties, in which case these findings shall be documented in a written order overriding the initial recommended response.

(k) Court must state reasons for conditions imposed. Upon setting conditions of release the Court shall set forth on the record its findings that: (1) a conditions of release bond guaranteed by financial terms is or is not necessary for any offense subject to sections (f), (g), or (h) of this rule; (2) the imposed non-financial conditions are appropriate to address a substantial danger to public or specific-victim safety, a risk of failure to appear at court proceedings or any other risk of pretrial failure; and (3) a departure from the initial recommended response under either section (i) or section (j) is appropriate. In addition, the court may set forth on the record any other consideration it deems appropriate when setting conditions of release. ( l ) Supervision by pretrial services.

(1) Order for standard conditions of release required. Notwithstanding any other provision in this rule, the court shall not require the defendant to report to Pretrial Services for supervision unless it subjects the defendant to the standard conditions of release used by the Department of Correction.

(2) Order for additional conditions of release. The court may order Pretrial Services' monitoring of specific additional pretrial conditions of release that are appropriately tailored to the defendant. These conditions shall be documented on the record of the proceeding at which they are imposed.

(m) Consideration of defendant's financial circumstances. When setting the financial terms of any bond, the court shall consider the defendant's financial circumstances, including the defendant's ability to furnish the security or money necessary to guarantee the bond.

(n) Reporting requirements.

(1) Certain findings required to be docketed as an order and sent to presiding judge. Whenever certain findings are required by section (i)(5) or (j) of this rule to be in the form of an order of the court, the court shall docket its decision in writing as an order of the court and send a copy of that order to the court's presiding judge.

(2) Statistical reporting requirements. Upon setting the defendant's conditions of release under this rule, the court shall record its decision by selecting at least one judicial response code in the Delaware Criminal Justice Information System. Schedule 5.2A. Signal Offenses.

(a) A signal offense shall include any of the following offenses or circumstances, or an attempt to commit any of the following offenses or circumstances (items with an asterisk are in addition to those referenced in §2107(c)):

(1) Any Title 11 Class A felony,

(2) Any of the following other Title 11 felonies: § 606: Abuse of a Pregnant Female in the First Degree; § 607: Strangulation; § 612: Assault in the Second Degree; § 613: Assault in the First Degree; *§ 616: Gang Participation; § 632: Manslaughter; § 633: Murder of a Child by Abuse or Neglect in the Second Degree; § 770(a)(1) or

(a) (3): Rape in the Fourth Degree; § 771: Rape in the Third Degree; § 772: Rape in the Second Degree; § 776: Continuous Sexual Abuse of a Child; § 777A: Sex Offender Unlawful Sexual Conduct Against a Child; § 778: Sexual Abuse of a Child by a Person in a Position of Trust, Authority, or Supervision in the First Degree; § 783A: Kidnapping in the First Degree; § 787(b)(1) -

(b) (3): Trafficking an Individual, Forced Labor, and Sexual Servitude; § 803: Arson in the First Degree; § 826: Burglary in the First Degree; § 832: Robbery in the First Degree; § 1103B: Child Abuse in the First Degree; § 1108: Sexual Exploitation of a Child; § 1109: Unlawful Dealing in Child Pornography; *§ 1112A: Sexual Solicitation of a Child (subsection (h) listed in § 2107(c)); *§ 1112B(g): Promoting Sexual Solicitation of a Child (subsection (g) listed in § 2107(c)); § 1253: Escape After Conviction; § 1312: Stalking; § 1447: Possession of a Deadly Weapon During Commission of a Felony; § 1447A: Possession of a Firearm During Commission of a Felony; § 1448(a)(1),

(a) (4), (a)(6), and (a)(7): Possession, Purchase or Control of a Deadly Weapon (Firearm) by a Person Prohibited; § 1503: Racketeering; § 2109(c)(1): Felony Noncompliance with Bond when Defendant has been Committed in lieu of Bail Involving a (Violent) Felony Offense; § 2113(c)(1): Felony Noncompliance with Bond when Defendant has been Released on Bail Involving a (Violent) Felony Offense; § 3533: Aggravated Act of Intimidation;

(3) Any violent felony, as defined by 11 Del. C. § 4201(c), allegedly committed while the defendant is pending adjudication on a previously charged violent felony;

(4) Any offense under one of the following Domestic Violence circumstances:

(a) Any offense under one of the following Domestic Violence circumstances:

(b) Any violent felony, as defined by 11 Del. C. § 4201(c), allegedly committed against a victim while the defendant is pending adjudication on a previously charged domestic violence offense, as defined by 10 Del. C. § 1041(2), allegedly committed against the same victim;

(c) Any domestic violence offense, as defined by 10 Del. C. § 1041(2), allegedly committed while the defendant is pending adjudication on a previously charged violent felony allegedly committed against the same victim;

(d) Any felony domestic violence offense, as defined by 10 Del. C. § 1041(2), in which physical injury, as defined by 11 Del. C. § 222(23), or serious physical injury, as defined by 11 Del. C. § 222(26), was alleged to been caused;

(5) Any felony drug offense as follows:

(a) 16 Del. C. § 4752: Drug Dealing (Tier 3). History. Added Feb. 28, 2022, effective Apr. 4, 2022.