La. Code Crim. Proc. art. 320

Current with operative changes from the 2024 Third Special Legislative Session

Section 320 - Conditions of bail undertaking

A. Definitions. For the purpose of this Article:

(1) "Firearm" means any pistol, revolver, rifle, shotgun, machine gun, submachine gun, black powder weapon, or assault rifle that is designed to fire or is capable of firing fixed cartridge ammunition or from which a shot or projectile is discharged by an explosive.

(2) "Global positioning monitoring system" means a system that electronically determines and reports the location of an individual by means of an ankle bracelet transmitter or similar device worn by the individual that transmits latitude and longitude data to monitoring authorities through global positioning satellite technology but does not contain or operate any global positioning system technology or radio frequency identification technology or similar technology that is implanted in or otherwise invades or violates the corporeal body of the individual.

(3) "Immediate family member" means the spouse, mother, father, aunt, uncle, sibling, or child of the victim, whether related by blood, marriage, or adoption.

(4) "Informed consent" means that the victim was given information concerning all of the following before consenting to participate in global positioning system monitoring:

(a) The victim's right to refuse to participate in global positioning system monitoring and the process for requesting the court to determine the victim's participation after it has been ordered.

(b) The manner in which the global positioning monitoring system technology functions and the risks and limitations of that technology, and the extent to which the system will track and record the victim's location and movements.

(c) The boundaries imposed on the defendant during the global positioning system monitoring.

(d) Sanctions that the court may impose on the defendant for violating an order issued under this Article.

(e) The procedure that the victim is to follow if the defendant violates an order issued under this Article or if global positioning monitoring system equipment fails.

(f) Identification of support services available to assist the victim to develop a safety plan to use if the court's order issued under this Article is violated or if the global positioning monitoring system equipment fails.

(g) Identification of community services available to assist the victim in obtaining shelter, counseling, education, child care, legal representation, and other help in addressing the consequences and effects of domestic violence or stalking.

(h) The nonconfidential nature of the victim's communications with the court concerning global positioning system monitoring and the restrictions to be imposed upon the defendant's movements.

B. Conditions of bail generally. The condition of the bail undertaking in district, juvenile, parish, and city courts shall be that the defendant will appear at all stages of the proceedings to answer the charge before the court in which he may be prosecuted, will submit himself to the orders and process of the court, and will not leave the state without written permission of the court. The court may impose any additional conditions of release that are reasonably related to assuring the appearance of the defendant before the court and guarding the safety of any other individual or the community.

C. Operating a vehicle while intoxicated. The court shall require as a condition of release on bail that any person who is charged with a second or subsequent violation of R.S. 14:32.1, 39.1, 39.2, 98, 98.6, or a parish or municipal ordinance that prohibits the operation of a motor vehicle while under the influence of alcohol or drugs to install an ignition interlock device on any vehicle which he operates. The defendant shall have fifteen days from the date that he is released on bail to comply with this requirement, and the ignition interlock device shall remain on the vehicle or vehicles during the pendency of the criminal proceedings. Under exceptional circumstances, the court may waive the provisions of this Article but shall indicate the reasons therefor to the law enforcement agency who has custody of the alleged offender documentation.

D. Pretrial drug testing and screening for substance use disorders.

(1) Every person arrested for a violation of the Uniform Controlled Dangerous Substances Law or a crime of violence as provided in R.S. 14:2(B) shall be required to submit to a pretrial drug test for the presence of designated substances in accordance with the provisions of this Article and rules of court governing such testing. Every person arrested for any other felony may be required to submit to a pretrial drug test for the presence of designated substances in accordance with the provisions of this Article and rules of court governing such testing. Every person arrested for a misdemeanor may be required to submit to a pretrial drug test for the presence of designated substances in accordance with the provisions of this Article and rules of court governing such testing.

(2) Drug testing to determine the presence of any controlled dangerous substance identified in the Uniform Controlled Dangerous Substances Law shall occur within twenty-four hours of the booking of the person, and random testing thereafter may be required to verify that the person is drug free.

(3) All persons testing positive for the presence of one or more substances provided in Subparagraph (2) of this Paragraph shall be clinically screened utilizing a validated screening tool for the purpose of determining whether the person suffers from a substance use disorder and is suitable for a drug or specialty court program.

(4) All persons who receive a positive test result pursuant to the drug testing administered pursuant to Subparagraph (2) of this Paragraph and who are considered suitable for a drug or specialty court program pursuant to the screening process set forth in Subparagraph (3) of this Paragraph shall be subject to the provisions of Code of Criminal Procedure Article 904.

(5) All records and information provided or obtained pursuant to Subparagraphs (2) and (3) of this Paragraph shall be considered confidential and shall not be, without the consent of the person tested or screened, disclosed to any person who is not connected with the district attorney, counsel for the person tested or screened pursuant to this Paragraph, a treatment professional, or the court. Such records and information shall not be admissible in any civil or criminal action or proceeding, except for the purposes of determining suitability or eligibility of the person for any drug or specialty court program.

(6) The expenses and costs incurred relative to the mandatory drug testing and the screening required by this Paragraph shall be deemed to be an approved purpose for use of opioid funds. If sufficient funds do not exist for the reimbursement of the expenses and costs of mandatory testing and screening, the provisions of Subparagraphs (2) and (3) of this Paragraph may still be enforced at the discretion of the governing authority responsible for funding those provisions.

E. Pretrial drug testing program. The court may implement a pretrial drug testing program. All persons released under the provisions of the pretrial drug testing program shall submit to continued random testing and refrain from the use or possession of any controlled dangerous substance or any substance designated by the court. A pretrial drug testing program shall provide for the following:

(1) All persons testing positive for the presence of one or more of the designated substances set forth in Subparagraph (2) of this Paragraph, who are not otherwise required to participate, shall submit to a pretrial drug testing program.

(2) Drug testing to determine the presence of any controlled dangerous substance identified in the Uniform Controlled Substances Law prior to first court appearance and random testing thereafter to verify that the person is drug free.

(3) Restrictions on the use of any and all test results to ensure that they are used only for the benefit of the court to determine appropriate conditions of release, monitoring compliance with court orders, and assisting in determining appropriate sentences. A form statement shall be signed by the law enforcement agency and the person in custody stipulating that under no circumstances shall the information be used as evidence or as the basis for additional charges.

(4) Reasonable testing procedures to ensure the fair administration of the test and protection for the chain of custody for any evidence obtained.

F. Implementation of pretrial drug testing program. The implementation of any pretrial drug testing program authorized pursuant to the provisions of this Article shall be contingent upon receipt by the court requiring the test of sufficient federal or other funding to conduct the testing program in accordance with the provisions of this Article and any rules of court. No elected official who is in any way connected with the administration of the pretrial drug testing program provided for in this Article, either directly or indirectly, shall have any financial interest, either directly or indirectly, in any drug testing company participating in such pretrial drug testing program. All contracts awarded to any drug testing company authorized to conduct the pretrial drug testing program provided for in this Article shall be awarded in accordance with the provisions governing public bids, R.S. 38:2181 et seq.

G. Domestic offenses, stalking, and sex offenses.

(1) In determining conditions of release of a defendant who is alleged to have committed an offense against the defendant's family or household member, as defined in R.S. 46:2132, or against the defendant's dating partner, as defined in R.S. 46:2151, or who is alleged to have committed the offense of domestic abuse battery under the provisions of R.S. 14:35.3, or who is alleged to have committed the offense of battery of a dating partner under the provisions of R.S. 14:34.9, or who is alleged to have committed the offense of stalking under the provisions of R.S. 14:40.2, or who is alleged to have committed the offense of cyberstalking under the provisions of R.S. 14:40.3, or who is alleged to have committed the offense of violation of protective orders under the provisions of R.S. 14:79, or who is alleged to have committed the offense of unlawful communications under the provisions of R.S. 14:285, or who is alleged to have committed a sexual assault as defined in R.S. 46:2184, the court shall consider the previous criminal history of the defendant and whether the defendant poses a threat or danger to the victim. If the court determines that the defendant poses such a threat or danger, it shall require as a condition of bail that the defendant refrain from going to the residence or household of the victim, the victim's school, and the victim's place of employment or otherwise contacting the victim in any manner whatsoever, and shall refrain from having any further contact with the victim. The court shall also require as a condition of bail that the defendant be prohibited from communicating, by electronic communication, in writing, or orally, with a victim of the offense or with any of the victim's immediate family members. This condition shall not apply if the victim consents by way of a request to the court and the court issues an order permitting the communication. If an immediate family member of the victim consents by way of a request to the court and the court issues an order permitting the communication, then the defendant may contact that person. The court shall also consider any statistical evidence prepared by the United States Department of Justice relative to the likelihood of such defendant or any person in general who has raped or molested victims under the age of thirteen years to commit sexual offenses against a victim under the age of thirteen in the future.

(2) If the defendant is alleged to have committed any of the offenses included in Subparagraph (1) of this Paragraph and is denied bail or is unable to post bail and is therefore incarcerated prior to trial, the court may issue an order under this Paragraph prohibiting the defendant from communicating, by electronic communication, in writing, or orally, with a victim of the offense, or with any of the victim's immediate family members. This condition shall not apply if the victim consents by way of a request to the court and the court issues an order permitting the communication. If an immediate family member of the victim consents by way of a request to the court and the court issues an order permitting the communication, then the defendant may contact that person.

(3) In all cases, the court shall issue and shall file into the record any order issued pursuant to this Paragraph and shall serve the defendant with the order by personal service. The court shall also comply with the provisions of Paragraph H of this Article.

H. Uniform Abuse Prevention Order.

(1) If the court issues any order pursuant to any of the provisions of this Article prohibiting the defendant from contacting or communicating with the victim or the victim's immediate family members, the judge shall cause to have prepared a Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), shall sign such order, and shall immediately forward it to the clerk of court for filing, on the next business day after the order is issued. The clerk of the issuing court shall transmit the Uniform Abuse Prevention Order to the judicial administrator's office, Louisiana Supreme Court, for entry into the Louisiana Protective Order Registry, as provided in R.S. 46:2136.2(A), by facsimile transmission or direct electronic input as expeditiously as possible, but no later than the end of the next business day after the order is filed with the clerk of court. The clerk of the issuing court shall also send a copy of the Uniform Abuse Prevention Order, as provided in R.S. 46:2136.2(C), or any modification thereof, to the chief law enforcement officer of the parish where the person or persons protected by the order reside. A copy of the Uniform Abuse Prevention Order shall be retained on file in the office of the chief law enforcement officer until otherwise directed by the court.

(2) If, as part of any order issued pursuant to any of the provisions of this Article, an order is issued pursuant to the provisions of this Paragraph, the court shall also order that the defendant be prohibited from possessing a firearm for the duration of the Uniform Abuse Prevention Order.

I. Global positioning monitoring.

(1)

(a) In addition, the court shall order a defendant who is alleged to have committed the offense of first degree rape under the provisions of R.S. 14:42, and may order a defendant who is alleged to have committed an offense enumerated in Paragraph G or J of this Article, to be equipped with a global positioning monitoring system as a condition of release on bail.

(b) In determining whether to order a defendant, as a condition of release on bail, to participate in global positioning system monitoring, the court shall consider the likelihood that the defendant's participation in global positioning system monitoring will deter the defendant from seeking to harm, injure, or otherwise threaten the victim prior to trial.

(c) The defendant shall be released on bail pursuant to the provisions of this Article only if he agrees to pay the cost of the global positioning monitoring system and monitoring fees associated with the device, or agrees to perform community service in lieu of paying such costs.

(2) If the court orders the defendant to be equipped with a global positioning monitoring system as a condition of release on bail, the court may order the defendant, with the informed consent of the victim, to provide the victim of the charged crime with an electronic receptor device which is capable of receiving the global positioning system information and which notifies the victim if the defendant is located within an established proximity to the victim. The court, in consultation with the victim, shall determine which areas the defendant shall be prohibited from accessing and shall establish the proximity to the victim within which a defendant shall be excluded. In making this determination, the court shall consider a list, provided by the victim, which includes those areas from which the victim desires the defendant to be excluded.

(3) The victim shall be furnished with telephone contact information for the local law enforcement agency in order to request immediate assistance if the defendant is located within that proximity to the victim. The court shall order the global positioning monitoring system provider to program the system to notify local law enforcement if the defendant violates the order. The victim, at any time, may request that the court terminate the victim's participation in the global positioning monitoring system of the defendant. The court shall not impose sanctions on the victim for refusing to participate in global positioning system monitoring provided for in this Paragraph.

(4) In addition to electronic monitoring, the court shall consider house arrest. The conditions of the electronic monitoring and house arrest shall be determined by the court, and may include but are not be limited to limitation of the defendant's activities outside of the home and a curfew.

(1) Crimes of violence. Notwithstanding the provisions of Paragraph G of this Article and notwithstanding any other provision of law to the contrary, if the defendant is alleged to have committed a crime of violence as defined in R.S. 14:2(B), the court shall require as a condition of bail that the defendant refrain from going to the residence or household of the victim, the victim's school, and the victim's place of employment or otherwise contacting the victim in any manner whatsoever, and shall refrain from having any further contact with the victim. The court shall also require as a condition of bail that the defendant be prohibited from communicating, by electronic communication, in writing, or orally, with a victim of the offense, or with any of the victim's immediate family members. This condition does not apply if the victim consents by way of a request to the court and the court issues an order permitting the communication. If an immediate family member of the victim consents by way of a request to the court and the court issues an order permitting the communication, then the defendant may contact that person.

(2) Notwithstanding the provisions of Paragraph G of this Article and notwithstanding any other provision of law to the contrary, if a defendant alleged to have committed an offense included in Subparagraph (1) of this Paragraph is denied bail or is unable to post bail and is therefore incarcerated prior to trial, the court shall nevertheless issue an order under this Paragraph prohibiting the defendant from communicating, by electronic communication, in writing, or orally, with a victim of the offense, or with any of the victim's immediate family members. This condition shall not apply if the victim consents by way of a request to the court and the court issues an order permitting the communication. If an immediate family member of the victim consents by way of a request to the court and the court issues an order permitting the communication, then the defendant may contact that person.

K. Violations. Violation of any condition by the defendant shall be considered as a constructive contempt of court, and shall result in the revocation of bail and issuance of a bench warrant for the defendant's arrest or remanding the defendant to custody. The court may also modify bail by either increasing the amount of bail or adding additional conditions of bail.

L. Under no circumstances shall any court deny the issuance of a protective order pursuant to any provision of this Article on the ground that a protective order has already been issued under any other provision of law. Any protective order issued pursuant to this Article shall remain in effect for the time that the criminal case is pending until sentencing unless the person protected by the protective order moves the court to dissolve the protective order as to that person and the court grants the motion to dissolve the protective order as to that person.

La. Cr.P. § 320

Acts 1993, No. 834, §1, eff. June 22, 1993; Acts 2016, No. 613, §1, eff. Jan. 1, 2017; Acts 2017, No. 90, §2; Acts 2020, No. 246, §1.

Amended by Acts 2024EX2, No. 4,s. 1, eff. 7/1/2024.

Amended by Acts 2020, No. 246,s. 1, eff. 8/1/2020.

Amended by Acts 2017, No. 90,s. 2, eff. 8/1/2017.

Amended by Acts 2016, No. 613,s. 1, eff. 1/1/2017.

Acts 1993, No. 834, §1, eff. 6/22/1993.