Rule 3:26-1. Right to Pretrial Release Before Conviction
(a) Persons Entitled; Standards for Fixing.
(1) Persons Charged on a Complaint-Warrant or Warrant on Indictment.
Except when the prosecutor files a motion for pretrial detention pursuant to N.J.S.A.
2A:162-18 and 19 and R. 3:4A, all persons for whom a complaint-warrant or a warrant
on indictment is issued for an initial charge involving an indictable offense or disorderly
persons offense shall be released before conviction on either personal recognizance,
the execution of an unsecured appearance bond, or the least restrictive non-monetary
conditions that, in the judgment of the court, will reasonably assure their presence in
court when required, the protection of the safety of any other person or the community,
and that the defendant will not obstruct or attempt to obstruct the criminal justice
process. A defendant who is the subject of a warrant on indictment is an eligible
defendant pursuant to N.J.S.A. 2A:162-15 et seq. In addition to these non-monetary
conditions, monetary conditions may be set for a defendant but only when it is
determined that no other conditions of release will reasonably assure the defendant's
appearance in court when required. The court shall consider all the circumstances, the
Pretrial Services Program's risk assessment and recommendations and any information
that may have been provided by a prosecutor or the defendant on conditions of release
before making any pretrial release decision. If the court enters a release order
containing conditions contrary to those recommended by the Pretrial Services Program
obtained using a risk assessment instrument then the court shall set forth its reasons for
not accepting those recommendations. The court shall make a pretrial release
determination no later than 48 hours after a defendant's commitment to the county jail.
When a defendant is charged with a crime or offense involving domestic
violence, the court authorizing the release may, as a condition of release, prohibit the
defendant from having any contact with the victim. The court may impose any additional
limitations upon contact as otherwise authorized by N.J.S.A. 2C:25-26.
(2) Persons Charged on a Complaint-Summons or Summons on
Indictment. A defendant who is charged on a complaint-summons or summons on
indictment shall be released from custody. If the defendant later fails to appear in court
when required and the court issues a bench warrant for the defendant's arrest, the court
shall at that time either (A) order that the defendant be released on personal
recognizance upon arrest or (B) set monetary bail.
(b) Restrictions on Contact. If the court imposes conditions of pretrial release
that include restrictions on contact between the defendant and defendant's minor child,
(1) a copy of the order imposing the restrictions shall be transmitted to the Family Part,
and (2) such restrictions shall not affect contact authorized by an order of the Family
Part in a child abuse/neglect case entered after any restriction on contact was imposed
as part of a bail order.
(c) Crimes with Bail Restrictions Defined in N.J.S.A. 2A:162-12. If a defendant is
charged with a crime with bail restrictions as defined in N.J.S.A. 2A:162-12, and the
court has set a monetary bail or a combination of a monetary bail and non-monetary
conditions of pretrial release, no later than the time of posting monetary bail or
proffering the surety or bail bond, the defendant shall provide to the prosecutor, on the
Bail Source Inquiry Questionnaire promulgated by the Attorney General, relevant
information about the obligor, indemnifier or person posting cash bail, the security
offered, and the source of any money or property used to post the cash bail or secure
the surety or bail bond.
(d) Extradition Proceedings. Where a person has been arrested in any
extradition proceeding pursuant to the Uniform Criminal Extradition Law, N.J.S.A.
2A:160-6 et seq., the court may set monetary bail or bond except where that person is
charged with a crime punishable by death or life imprisonment. The court may also
commit the person to the county jail as provided by the Uniform Criminal Extradition
Law, N.J.S.A. 2A:160-6 et seq.
(e) Issuance of Restraining Orders By Electronic Communication.
(1) Temporary Domestic Violence Restraining Orders. Procedures
authorizing the issuance of temporary domestic violence restraining orders by electronic
communication are governed by R. 5:7A(d).
(2) N.J.S.A. 2C:35-5.7 and N.J.S.A. 2C:14-12 Restraining Orders. A
judge may as a condition of release issue a restraining order pursuant to N.J.S.A.
2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") and N.J.S.A. 2C:14-12
("Nicole's Law") upon sworn oral testimony of a law enforcement officer or prosecuting
attorney who is not physically present. Such sworn oral testimony may be
communicated to the judge by telephone, radio or other means of electronic
communication. The judge shall contemporaneously record such sworn oral testimony
by means of a recording device if available; otherwise, adequate notes summarizing
what is said shall be made by the judge. Subsequent to taking the oath, the law
enforcement officer or prosecuting attorney must identify himself or herself, specify the
purpose of the request and disclose the basis of the application. This sworn testimony
shall be deemed to be an affidavit for the purposes of issuance of a restraining order.
Upon issuance of the restraining order, the judge shall memorialize the specific terms of
the order. That memorialization shall be either by means of a recording device, or by
adequate notes. Thereafter, the judge shall direct the law enforcement officer or
prosecuting attorney to memorialize the specific terms authorized by the judge on a
form, or other appropriate paper, designated as the restraining order. This order shall
be deemed a restraining order for the purpose of N.J.S.A. 2C:35-5.7 ("Drug Offender
Restraining Order Act of 1999") and N.J.S.A. 2C:14-12 ("Nicole's Law"). The judge
shall direct the law enforcement officer or prosecuting attorney to print the judge's name
on the restraining order. A copy of the restraining order shall be served upon the
defendant by any officer authorized by law. Within 48 hours, the law enforcement
officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile
transmission or by other means of electronic communication, the signed restraining
order along with a certification of service upon the defendant. The certification of
service shall include the date and time that service upon the defendant was made or
attempted to be made in a form approved by the Administrative Director of the Courts.
The judge shall verify the accuracy of these documents by affixing his or her signature
to the restraining order.
(3) Certification of Offense Location for Drug Offender Restraining
Orders. When a restraining order is issued by electronic communication pursuant to
N.J.S.A. 2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") where the law
enforcement officer or prosecuting attorney is not physically present at the same
location as the court, the law enforcement officer or prosecuting attorney must provide
an oral statement describing the location of the offense. Within 48 hours the law
enforcement officer or prosecuting attorney shall deliver to the judge, either in person,
by facsimile transmission or by other means of electronic communication, a certification
describing the location of the offense.
Note: Source -- R.R. 3:9-1(a) (b) (c) (d); paragraph (a) amended September 28, 1982 to be
effective immediately; paragraphs (a), (b), (c) and (d) amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; new paragraph (b)
adopted, and former paragraphs (b), (c), and (d) redesignated as paragraphs (c), (d), and (e) June 15,
2007 to be effective September 1, 2007; new paragraph (c) adopted and former paragraphs (c), (d), and (e) redesignated as paragraphs (d), (e), and (f) July 9, 2008 to be effective September 1, 2008; paragraph (a) amended and new paragraph (g) adopted July 9, 2013 to be effective September 1, 2013; caption amended, text of paragraph (a) amended and redesignated as paragraph (a)(1) with caption added, new paragraph (a)(2) adopted, paragraphs (b) and (c) amended, former paragraphs (d) and (e) deleted; former paragraph (f) amended and redesignated as paragraph (d), former paragraph (g) amended and redesignated as paragraph (e) August 30, 2016 to be effective January 1, 2017; paragraph (a)(1) amended November 14, 2016 to be effective January 1, 2017; paragraphs (a)(1), (a)(2), and (d) amended December 6, 2016 to be effective January 1, 2017; captions and text of paragraphs (a)(1) and (a)(2) amended July 28, 2017 to be effective September 1, 2017; subparagraph (e)(1) amended July 29, 2019 to be effective September 1, 2019.
(a) Persons Entitled; Standards for Fixing.
(1) Persons Charged on a Complaint-Warrant or Warrant on Indictment.
Except when the prosecutor files a motion for pretrial detention pursuant to N.J.S.A.
2A:162-18 and 19 and R. 3:4A, all persons for whom a complaint-warrant or a warrant
on indictment is issued for an initial charge involving an indictable offense or disorderly
persons offense shall be released before conviction on either personal recognizance,
the execution of an unsecured appearance bond, or the least restrictive non-monetary
conditions that, in the judgment of the court, will reasonably assure their presence in
court when required, the protection of the safety of any other person or the community,
and that the defendant will not obstruct or attempt to obstruct the criminal justice
process. A defendant who is the subject of a warrant on indictment is an eligible
defendant pursuant to N.J.S.A. 2A:162-15 et seq. In addition to these non-monetary
conditions, monetary conditions may be set for a defendant but only when it is
determined that no other conditions of release will reasonably assure the defendant's
appearance in court when required. The court shall consider all the circumstances, the
Pretrial Services Program's risk assessment and recommendations and any information
that may have been provided by a prosecutor or the defendant on conditions of release
before making any pretrial release decision. If the court enters a release order
containing conditions contrary to those recommended by the Pretrial Services Program
obtained using a risk assessment instrument then the court shall set forth its reasons for
not accepting those recommendations. The court shall make a pretrial release
determination no later than 48 hours after a defendant's commitment to the county jail.
When a defendant is charged with a crime or offense involving domestic
violence, the court authorizing the release may, as a condition of release, prohibit the
defendant from having any contact with the victim. The court may impose any additional
limitations upon contact as otherwise authorized by N.J.S.A. 2C:25-26.
(2) Persons Charged on a Complaint-Summons or Summons on
Indictment. A defendant who is charged on a complaint-summons or summons on
indictment shall be released from custody. If the defendant later fails to appear in court
when required and the court issues a bench warrant for the defendant's arrest, the court
shall at that time either (A) order that the defendant be released on personal
recognizance upon arrest or (B) set monetary bail.
(b) Restrictions on Contact. If the court imposes conditions of pretrial release
that include restrictions on contact between the defendant and defendant's minor child,
(1) a copy of the order imposing the restrictions shall be transmitted to the Family Part,
and (2) such restrictions shall not affect contact authorized by an order of the Family
Part in a child abuse/neglect case entered after any restriction on contact was imposed
as part of a bail order.
(c) Crimes with Bail Restrictions Defined in N.J.S.A. 2A:162-12. If a defendant is
charged with a crime with bail restrictions as defined in N.J.S.A. 2A:162-12, and the
court has set a monetary bail or a combination of a monetary bail and non-monetary
conditions of pretrial release, no later than the time of posting monetary bail or
proffering the surety or bail bond, the defendant shall provide to the prosecutor, on the
Bail Source Inquiry Questionnaire promulgated by the Attorney General, relevant
information about the obligor, indemnifier or person posting cash bail, the security
offered, and the source of any money or property used to post the cash bail or secure
the surety or bail bond.
(d) Extradition Proceedings. Where a person has been arrested in any
extradition proceeding pursuant to the Uniform Criminal Extradition Law, N.J.S.A.
2A:160-6 et seq., the court may set monetary bail or bond except where that person is
charged with a crime punishable by death or life imprisonment. The court may also
commit the person to the county jail as provided by the Uniform Criminal Extradition
Law, N.J.S.A. 2A:160-6 et seq.
(e) Issuance of Restraining Orders By Electronic Communication.
(1) Temporary Domestic Violence Restraining Orders. Procedures
authorizing the issuance of temporary domestic violence restraining orders by electronic
communication are governed by R. 5:7A(d).
(2) N.J.S.A. 2C:35-5.7 and N.J.S.A. 2C:14-12 Restraining Orders. A
judge may as a condition of release issue a restraining order pursuant to N.J.S.A.
2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") and N.J.S.A. 2C:14-12
("Nicole's Law") upon sworn oral testimony of a law enforcement officer or prosecuting
attorney who is not physically present. Such sworn oral testimony may be
communicated to the judge by telephone, radio or other means of electronic
communication. The judge shall contemporaneously record such sworn oral testimony
by means of a recording device if available; otherwise, adequate notes summarizing
what is said shall be made by the judge. Subsequent to taking the oath, the law
enforcement officer or prosecuting attorney must identify himself or herself, specify the
purpose of the request and disclose the basis of the application. This sworn testimony
shall be deemed to be an affidavit for the purposes of issuance of a restraining order.
Upon issuance of the restraining order, the judge shall memorialize the specific terms of
the order. That memorialization shall be either by means of a recording device, or by
adequate notes. Thereafter, the judge shall direct the law enforcement officer or
prosecuting attorney to memorialize the specific terms authorized by the judge on a
form, or other appropriate paper, designated as the restraining order. This order shall
be deemed a restraining order for the purpose of N.J.S.A. 2C:35-5.7 ("Drug Offender
Restraining Order Act of 1999") and N.J.S.A. 2C:14-12 ("Nicole's Law"). The judge
shall direct the law enforcement officer or prosecuting attorney to print the judge's name
on the restraining order. A copy of the restraining order shall be served upon the
defendant by any officer authorized by law. Within 48 hours, the law enforcement
officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile
transmission or by other means of electronic communication, the signed restraining
order along with a certification of service upon the defendant. The certification of
service shall include the date and time that service upon the defendant was made or
attempted to be made in a form approved by the Administrative Director of the Courts.
The judge shall verify the accuracy of these documents by affixing his or her signature
to the restraining order.
(3) Certification of Offense Location for Drug Offender Restraining
Orders. When a restraining order is issued by electronic communication pursuant to
N.J.S.A. 2C:35-5.7 ("Drug Offender Restraining Order Act of 1999") where the law
enforcement officer or prosecuting attorney is not physically present at the same
location as the court, the law enforcement officer or prosecuting attorney must provide
an oral statement describing the location of the offense. Within 48 hours the law
enforcement officer or prosecuting attorney shall deliver to the judge, either in person,
by facsimile transmission or by other means of electronic communication, a certification
describing the location of the offense.
Note: Source -- R.R. 3:9-1(a) (b) (c) (d); paragraph (a) amended September 28, 1982 to be
effective immediately; paragraphs (a), (b), (c) and (d) amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended July 10, 1998 to be effective September 1, 1998; new paragraph (b)
adopted, and former paragraphs (b), (c), and (d) redesignated as paragraphs (c), (d), and (e) June 15,
2007 to be effective September 1, 2007; new paragraph (c) adopted and former paragraphs (c), (d), and (e) redesignated as paragraphs (d), (e), and (f) July 9, 2008 to be effective September 1, 2008; paragraph (a) amended and new paragraph (g) adopted July 9, 2013 to be effective September 1, 2013; caption amended, text of paragraph (a) amended and redesignated as paragraph (a)(1) with caption added, new paragraph (a)(2) adopted, paragraphs (b) and (c) amended, former paragraphs (d) and (e) deleted; former paragraph (f) amended and redesignated as paragraph (d), former paragraph (g) amended and redesignated as paragraph (e) August 30, 2016 to be effective January 1, 2017; paragraph (a)(1) amended November 14, 2016 to be effective January 1, 2017; paragraphs (a)(1), (a)(2), and (d) amended December 6, 2016 to be effective January 1, 2017; captions and text of paragraphs (a)(1) and (a)(2) amended July 28, 2017 to be effective September 1, 2017; subparagraph (e)(1) amended July 29, 2019 to be effective September 1, 2019.
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