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.

ffenses, 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.

tures 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.

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.

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

ng 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 specific-

victim 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.

he 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.

ubjects 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

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),

g 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.