COCODE

16-4-102. Right to bail - before conviction - definitions.

Statute text

(1) Any person who is in custody, and for whom the court has not set bond and conditions of release pursuant to the applicable rule of criminal procedure, and who is not subject to the provisions of section 16-4-101 (5), has the right to a hearing to determine bond and conditions of release. A person in custody may also request a hearing so that bond and conditions of release can be set. Upon receiving the request, the judge shall notify the district attorney immediately of the arrested person's request, and the district attorney has the right to attend and advise the court of matters pertinent to the type of bond and conditions of release to be set. The judge shall also order the appropriate law enforcement agency having custody of the prisoner to bring him or her before the court forthwith, and the judge shall set bond and conditions of release if the offense for which the person was arrested is bailable. It is not a prerequisite to bail that a criminal charge of any kind has been filed.

(2) (a) (I) The arresting jurisdiction shall bring an in-custody arrestee before a court for bond setting as soon as practicable, but no later than forty-eight hours after an arrestee arrives at a jail or holding facility. A judge, magistrate, or bond hearing officer shall hold a hearing with an in-custody arrestee at which the court shall enter an individualized bond order as soon as practicable, but no later than forty-eight hours after an arrestee arrives at a jail or holding facility. Notwithstanding the requirement for bond setting within forty-eight hours, it is not a violation of this section if a bond hearing is not held within forty-eight hours when the delay is caused by an emergency that requires the court to close or circumstances in which the in-custody arrestee refuses to attend court, or is unable to attend due to drug or alcohol use or a serious medical or behavioral health emergency. In such instances, the sheriff shall provide the public defender's office with a list of people subject to this section who did not timely attend court, the date of the person's arrest, and the location where the person is in custody. The sheriff shall document the length of the delay, the reason for the delay, and the efforts to abate the emergency. As soon as the emergency has sufficiently abated, the sheriff shall bring the in-custody arrestee before a judge at the next scheduled bond hearing. Use of audiovisual conferencing technology is permissible to expedite bond setting hearings, including prior to extradition of the in-custody arrestee from one county to another in the state of Colorado. When high-speed internet access is unavailable, making audiovisual conferencing impossible, the court may conduct the hearing telephonically.

(I.5) This subsection (2)(a) requires an individualized bond hearing at which the in-custody arrestee is present, regardless of whether:

(A) The in-custody arrestee is held in custody in a jurisdiction other than the one that issued the arrest warrant;

(B) Money bond with a monetary condition was previously set ex parte; or

(II) This subsection (2)(a) applies only to the initial bond setting at an individualized bond hearing by a judge, judicial officer, or bond hearing officer.

(III) This subsection (2)(a) applies to an arrestee who was arrested on or after April 1, 2022.

(IV) For an in-custody arrestee who is not subject to this subsection (2)(a), nothing in this section extends or justifies delays in timely advisement or bond hearings pursuant to other laws or rules.

(b) (I) A judge, judicial officer, or bond hearing officer shall not require a monetary bond to be posted in the defendant's name. Bond may be posted, at a minimum, by cash, money order, or cashier's check. Bond may be posted online, at a minimum, by credit card. If bond is posted by money order or cashier's check, the money order or cashier's check may be payable to the holding county. Before bond is posted, the sheriff shall provide the defendant and surety or third-party payer, if any, a copy of the notice described in subsection (2)(h)(I) of this section. When the bond is posted, the sheriff shall provide the defendant and surety or third-party payer, if any, a copy of the bond paperwork and information regarding the defendant's next court date. The individual processing the bond shall certify, in writing, that the defendant and surety or third-party payer, if any, received a copy of the bond paperwork, the notice described in subsection (2)(h)(I) of this section, and information regarding the defendant's next court date and shall place a copy of the certification in the defendant's file. Notwithstanding the provisions of this section, a sheriff may allow an individual to choose to stay in jail overnight after release when extenuating circumstances exist, including inclement weather, lack of transportation, lack of shelter, or to facilitate a connection to a service provider. If a defendant remains in jail overnight, the defendant must be released by 10 a.m. the next morning.

(II) By October 1, 2025, each jail shall establish a means to post bond online without the need for the surety or third-party payer to go to the jail in person to post bond. Each sheriff shall post instructions on the sheriff's website describing how to post bond online. All bonds of any amount that are postable in person must be postable online. Defendants and sureties or third-party payers that post bond online have the same rights that are afforded to a person when posting in person, specifically:

(A) The sheriff shall provide the defendant and surety or third-party payer, if any, a copy of the notice described in subsection (2)(h)(I) of this section; and

(B) The sheriff shall provide the defendant and surety or third-party payer, if any, a copy of the bond paperwork and information regarding the defendant's next court date.

(c) The custodian of a jail shall ensure the defendant, a surety on behalf of the defendant, or another third party on behalf of the defendant is not charged more than a ten-dollar bond processing fee, including when bond is posted online.

(d) The custodian of a jail shall also ensure the defendant, a surety on behalf of the defendant, or another third party on behalf of the defendant is not charged any additional transaction fees, including kiosk fees, including when bond is posted online; except that the standard credit card processing fee that the credit card company charges may be charged when a credit card is used, or, when a third-party vendor provides defendants the option to post monetary bond with a credit card, the defendant may be required to pay not more than a three-and-one-half percent credit card payment processing fee.

(e) Unless extraordinary circumstances exist, the custodian of a jail shall release a defendant who is granted a personal recognizance bond as soon as practicable but no later than six hours after the defendant is physically present in the jail. Unless extraordinary circumstances exist, the custodian of a jail shall release a defendant who is granted a cash bond as soon as practicable but no later than six hours after bond is set, after the defendant is physically present in the jail, and after the defendant, surety, or third-party payer notifies the jail that the defendant, surety, or third-party payer is prepared to post bond. If bond is posted online, the six-hour release timeline begins when the defendant, surety, or third-party payer submits payment for a bond online or electronically files a power of attorney pursuant to section 10-2-418. If the custodian fails to release the defendant within six hours, the custodian shall inform the defendant and any person posting bond on behalf of the defendant the reason for the delay and shall document the reason for the delay in the defendant's file. A supervisory condition of release does not serve as a legal basis to continue to detain the defendant; except that, if the defendant is ordered released upon condition of being subject to electronic monitoring, the defendant may be held up to as long as practicable but no longer than twenty-four hours after the defendant is physically present in the jail and the defendant's bond has been posted, if such delay is necessary to ensure the defendant is fitted with electronic monitoring and the court has authorized the defendant to be held until the electronic monitor is fitted. If the court orders electronic monitoring for the protection of a specific individual, and the defendant is ordered to have no contact with that specific individual, and the judge orders that the defendant not be released without electronic monitoring based on finding that the electronic monitoring is necessary for public safety, then the time limits regarding release of the defendant in this subsection (2)(e) do not apply. However, if a defendant is held more than twenty-four hours after posting bond awaiting electronic monitoring fitting, the sheriff shall bring the defendant to the court the next day the court is in session and explain the reason for the delay.

(e.5) (I) The custodian of a jail shall not delay a defendant's release from custody for the purpose of an immigration enforcement operation.

(II) For purposes of this subsection (2)(e.5):

(A) "Immigration enforcement operation" has the same meaning as set forth in section 24-76.6-101; except that "immigration enforcement operation" does not include any conduct contemplated by, or in compliance with, section 24-76.6-102 (4).

(B) "Jail" means a correctional facility, as defined in section 17-1-102; local jail, as defined in section 17-1-102; multijurisdictional jail, as described in section 17-26.5-101; or municipal jail, as described in section 31-15-401 (1)(j).

(f) A defendant whose bond has been posted, including when bond has been posted online, must be released regardless of whether the defendant has paid any outstanding fee, cost, or surcharge, including bond processing fees, booking fees, pretrial supervision fees, or electronic monitoring supervision fees.

(g) For purposes of this section, "extraordinary circumstances" includes an emergency that renders staff unable to process bonds and release defendants, but it does not include a lack of staffing resources or routine administrative practices.

(h) (I) (A) Each sheriff shall post the following notice of rights on the sheriff's website and information about how to file a complaint about violations of subsections (2)(b) to (2)(f) of this section:

Legal Rights Related to Posting Money Bond
Pursuant to Section 16-4-102, Colorado Revised Statutes

1. Bond fees, booking fees, and other fees or debts never need to be paid to secure a person's release on money bond, including when bond is posted online. A defendant, surety, or another third-party payer need only pay the bond amount in order to secure release.
2. While never a basis to hold a defendant in jail, the following fees are chargeable as a debt to the defendant after release if the surety or another third-party payer chooses not to pay the fees at the time of bonding: A $10 bond fee and a maximum 3.5% credit card payment fee. No other bond-related fees may be charged at any time, including any kiosk fees or fees for payment by cash, check, or money order, including when bond is posted online.
3. Bond payments are to be made out to the holding county and are never to be made out in the name of the incarcerated person.
4. A sheriff must release a defendant within six hours after a personal recognizance bond is set and the defendant has returned to jail or within six hours after a cash bond has been set and the defendant has returned to jail and the defendant, surety, or third-party payer notified the jail that bond is prepared to be posted, unless extraordinary circumstances exist. If bond is posted online, the six-hour release timeline begins when the defendant, surety, or third-party payer submits payment for a bond or electronically files a power of attorney. In the event of a delay of more than six hours, a surety or third-party payer and the defendant have a right to know what, if any, extraordinary circumstance is causing the delay. Supervisory conditions of release do not justify a delay in release; except that a sheriff may hold a defendant for up to 24 hours if necessary to ensure a defendant is fitted with required electronic monitoring.
5. Anyone who posts a money bond, including bond posted online, has the right to receive a copy of the bond paperwork, including documentation of the next upcoming court date.
6. A surety or third-party payer may never be asked to use posted bond money to pay a defendant's debts. Only when defendants have posted their own money bond may they be asked if they would like to voluntarily relinquish bond money to pay their debts, including when bond is posted online. Relinquishment of bond money by a defendant to pay a debt is never required and is entirely a voluntary choice by the defendant.

(B) The notice described in this subsection (2)(h)(I) must include information about how to file a complaint about violations of these provisions.

(II) The sheriff shall include the notice described in subsection (2)(h)(I) of this section in the inmate handbook. The notice must also be available at the bonding counter and provided to any individual, including a defendant, inquiring about posting bond.

(i) Each sheriff shall post a notice both in the common area of the jail in a location clearly visible to the inmates and in the public portion of the jail where a person posts bond, clearly visible to a person posting bond, that contains the following information:

(I) Bond fees, booking fees, and other fees or debts never need to be paid to secure a person's release on money bond, including when bond is posted online. A defendant, surety, or other third-party payer need only pay the bond amount in order to secure release.

(II) The sheriff shall release a defendant within six hours after a personal recognizance bond is set and the defendant has returned to jail or within six hours after a cash bond has been set and the defendant has returned to jail and the defendant or surety or third-party payer notified the jail that bond is prepared to be posted, unless extraordinary circumstances exist. If bond is posted online, the six-hour release timeline begins when the defendant or surety or third-party payer submits payment for a bond or electronically files a power of attorney. However, a sheriff may hold a defendant for up to twenty-four hours if necessary to ensure a defendant is fitted with required electronic monitoring.

(III) How to file a complaint about violations of subsections (2)(i)(I) and (2)(i)(II) of this section.

(j) (I) Each sheriff shall create written policies to comply with this subsection (2) by October 1, 2025. The sheriff shall post the policies on the sheriff's website and distribute them to all staff. The sheriff shall train all staff who process bonds or interact with inmates on the policies.

(II) Each sheriff shall review and update the sheriff's website, signage, paperwork, and forms related to bonding to reflect current law by October 1, 2025, and update the sheriff's website, signage, paperwork, and forms related to bonding as necessary thereafter.

(III) Each sheriff shall file a certificate of compliance with this subsection (2), a copy of the written policies required by subsection (2)(j)(I) of this section, and the notices required by subsections (2)(h)(I)(A) and (2)(i) of this section with the division of criminal justice in the department of public safety, by October 1, 2021, and each October 1 thereafter. Copies of the policies and notices only have to be provided when updated. The sheriff shall use the certificate of compliance form developed by the division of criminal justice in the department of public safety pursuant to section 24-33.5-503 (1)(bb).

History

Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 822, 2, effective May 11. L. 2019: Entire section amended, (SB 19-191), ch. 288, p. 2666, 1, effective August 2. L. 2021: (2)(a), (2)(b), and (2)(e) amended and (2)(h), (2)(i), and (2)(j) added, (HB 21-1280), ch. 457, p. 3045, 1, effective September 7. L. 2023: (2)(a)(I) and (2)(a)(II) amended and (2)(a)(I.5) and (2)(a)(IV) added, (HB 23-1151), ch. 92, p. 347, 3, effective October 1. L. 2025: (2)(e.5) added, (SB 25-276), ch. 240, p. 1211, 4, effective May 23; (2)(b), (2)(c), (2)(d), (2)(e), (2)(f), (2)(h)(I)(A), (2)(i)(I), (2)(i)(II), (2)(j)(I), and (2)(j)(II) amended, (HB 25-1015), ch. 43, p. 200, 1, effective August 6; (2)(b)(I) amended, (SB 25-190), ch. 286, p. 1473, 1, effective August 6.

Annotations

Editor's note: Amendments to subsection (2)(b)(I) by SB 25-190 were harmonized in part with and superseded in part by HB 25-1015.

Annotations

Cross references: For the legislative declaration in HB 23-1151, see section 1 of chapter 92, Session Laws of Colorado 2023. For the legislative declaration in SB 25-276, see section 1 of chapter 240, Session Laws of Colorado 2025.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950).

Annotator's note. Since 16-4-102 is similar to 16-4-102 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.

The power to grant bail derives not from the constitution, but from the common law. People v. Sanders, 185 Colo. 153, 522 P.2d 735 (1974).

The manifest policy of this section is to encourage the giving of bail in proper cases, rather than to hold in custody at the state's expense persons accused of bailable offenses. The court should so administer cases arising under this statute as to give effect to this manifest policy. Allison v. People, 132 Colo. 156, 286 P.2d 1102 (1955).

When a trial court grants a motion for a new trial, a defendant is restored to the bond status that existed upon the filing of charges. In a capital case, this requires that the court hold the defendant without bond until the defendant requests admission to bail. Once requested, the court must set a hearing at which the district attorney may seek to have bail denied because the proof is evident or presumption great. Even if the district attorney does not contend the proof is evident or presumption great, the court must hold a hearing to set bail. In either circumstance, because such a hearing is a "critical stage" as defined in 24-4.1-302, the alleged victim, or the alleged victim's family if the victim is deceased, has the right to be present and heard at the hearing. People v. Blagg, 2015 CO 2, 340 P.3d 1137.

The power to fix bail cannot be delegated. In the absence of a statute providing otherwise, the court or judicial officer vested with the power to fix bail cannot delegate such power to another. But where such power has been exercised by the proper court or officer, the act of taking and approving the bail bond is a ministerial act which may be delegated without statutory authority. Bottom v. People, 63 Colo. 114, 164 P. 697 (1917).

Hearsay evidence is admissible in bail hearings. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975).

But denial of bail may not be predicated upon hearsay alone, but such evidence may be admitted in corroboration. Gladney v. District Court, 188 Colo. 365, 535 P.2d 190 (1975).

Child does not have absolute constitutional or statutory right to bail pending adjudication of the charges filed against him in juvenile court. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).

When child detainable without bail. A trial court may detain a juvenile without bail only after giving due weight to the presumption that a juvenile should be released pending a dispositional hearing except in narrowly defined circumstances where the state establishes that detention is necessary to protect the child from imminent harm or to protect others in the community from serious bodily harm which the child is likely to inflict. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).

Probationer awaiting adjudication of a petition to revoke probation or a deferred judgment is subject to 16-4-201 (bail after conviction) because probationer has been convicted of the underlying offenses that led to probation, despite the fact that the revocation motions are based on a new charge for which the probationer is presumed innocent. People v. Johnson, 2017 COA 97, 488 P.3d 232.