Rule 5.4 - Proceedings for Violation of Pretrial Supervision(a)Power of the Court to Issue Summons, Warrant or Emergency Detention.(1)Summons or Warrant. The court with jurisdiction over the defendant, when notified by the State or the Department of Correction of a violation of the defendant's pretrial supervision conditions, may issue a summons or a warrant for the arrest of a defendant.(2)Exigent Circumstances. Under exigent circumstances, the Department of Correction, when aware of conduct that constitutes a breach of any material condition of release of a defendant under supervision and conducts an arrest, 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.(b)Notice to Court and Detaining Authority. Upon arrest and detention under the authority of a summons or warrant issued under this rule or emergency arrest due to exigent circumstances, 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 pretrial supervision conditions.(c)Hearing. If the defendant is arrested under the authority of a summons or warrant issued for violation of pretrial supervision conditions that are material in nature, 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.(d)Entry of Order. Upon the completion of a hearing under sections (a)(2) or (c) of this rule, the court shall enter an order continuing the existing conditions of pretrial supervision, setting different conditions of pretrial supervision, or revoking the defendant's release. If the court finds that the defendant has breached the conditions of pretrial supervision, the court may, in its discretion, require more intensive conditions of pretrial supervision 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 pretrial supervision; 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, and public and specific-victim safety,(e) Review. An order continuing or modifying the conditions of pretrial supervision under this rule is reviewable by the court only upon a material change in circumstance. The court may rule on any subsequent motion or request for review of conditions of release without presentation, hearing or argument.Del. R. Crim. P. Super Ct. 5.4
Adopted December 13, 2018, effective 1/1/2019; amended February 28, 2022, effective 4/4/2022.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.