Senate Judiciary Committee Amendment
S 367 - Session 125 (2023-2024)
Bonds and Electronic Monitoring

The Committee on Judiciary proposes the following amendment (SJ-367.BM0012S):

Amend the bill, as and if amended, SECTION 2, by striking Section 17-15-30(B)(2) and inserting:

(2) any current charges, any prior charges, and existing bonds on prior charges, pending against a person at the time release is requested;

Amend the bill further, by deleting SECTION 3.

Amend the bill further, SECTION 6, by striking Section 38-53-83 and inserting:

Section 38-53-83.No person may engage in electronic monitoring of a defendant released by a court of competent jurisdiction pursuant to a bail bond unless that person is qualified as an approved monitoring agency pursuant to the provisions of Section 17-15-35.

Amend the bill further, by deleting SECTION 7.

Amend the bill further, SECTION 8, Section 38-53-170, by striking the undesignated paragraph between (e) and (f) and inserting:

However, the bondsman is permitted to enter into a payment agreement by attaching a statement of bondsman to the bond proceeding. This payment agreement may not be altered and must not exceed eighteen months after the date on which the bond was executed. If the payment has not been made for two consecutive months, the bondsman must send a certified notice to the last known address of the principal and indemnitor demanding payment be made within ten days to bring the agreement current. If no payment is received by the end of the notice period, the bondsman must surrender the principal to the proper detention facility for holding and file a motion to be relieved as provided in Section 38-53-50(A) or (B), at which time the agreement must be accelerated, and the balance paid in full, before or at the motion hearing for the principal to be rereleased on bond. The bondsman may accept collateral security or other indemnity from the principal which must be returned upon within ten days after final termination of liability on the bond unless a bench warrant has been issued. The bondsman shall identify who is paying the premium and shall represent that the collateral security or other indemnity has not been obtained from any person who has a greater interest in the principal's disappearance than appearance for trial. The collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond. If the bond is forfeited, a bondsman may not convert collateral described in the collateral receipt to cash until he has provided a ten-day notice of this pending conversion to the depositor. This notice must be sent by certified mail to the last known address of the depositor. After the conversion, the bondsman must disclose the actual amount received to the depositor and must return any amount received that exceed the final judgment or consent amount, less any reasonable expenses. These reasonable expenses include apprehension and legal costs incurred as a result of the violation of the bond. The bondsman must provide the depositor copies of all receipts and, if applicable, the overage money within three days after settlement;

Amend the bill further, by adding appropriately numbered SECTIONS to read:

SECTION X. Chapter 15, Title 17 of the S.C. Code is amended by adding:

Section 17-15-35.(A) As used in this section:

(1) "approved active electronic monitoring device" and "monitoring device" mean either a tier one or tier two device approved by the South Carolina Law Enforcement Division;

(2) "tier one device" means a body-worn device that actively monitors and records a person's location at least once every minute for twenty-four hours a day and that timely records and reports the person's presence, including whether near or within a prohibited area or the person's departure from a specified geographic location, which is utilized by the approved electronic monitoring company who can provide live monitoring capability in conjunction with an internet-based computer system. The device must be approved by the South Carolina Law Enforcement Division, is resistant to removal from the person's body without alarm, and must be resistant or impervious to unintentional or willful damage;

(3) "tier two device" means a device or mobile phone application approved by the South Carolina Law Enforcement Division that is not body-worn which records or transmits oral or wire communications or an auditory sound, visual images, or information regarding the person's location and activities, including but not limited to mobile phone applications, that must verify live biometric, photographic, or videographic identification information;

(4) "approved electronic monitoring agency" means a law enforcement agency, licensed bondsman or bonding company, or electronic monitoring company that is certified by the South Carolina Law Enforcement Division to supply, maintain, and monitor electronic monitoring devices to participants ordered by the court to wear electronic monitoring devices under the provisions of this section;

(5) "SLED" means the South Carolina Law Enforcement Division;

(6) "monitoring agency" or "agency" means an approved electronic monitoring agency;

(7) "participant" means a person, ordered by the court or as a condition of bond to wear or possess an approved tier one or tier two electronic monitoring device.

(B)(1) The court, in its discretion, may, for a person charged with a violation of criminal offense under the jurisdiction of the court of General Sessions or any offense where the court finds sufficient evidence of a concern for the victim's safety or the safety of any member of the public, order that the person be placed on surveillance via an approved tier one or tier two active electronic monitoring device which must be worn or possessed at all times for the duration specified by the court, either in lieu of setting or requiring the posting of bond or as an additional condition of the release on bond. The court may not order a tier two device for any defendant if there is a concern for the victim's safety.

(2) For pre-trial bond consideration, the judge is not limited to non-violent offenses, but must take into consideration all concerns relating to the setting of an appropriate bond under Section 22-5-510, Sections 17-15-10, et seq. and Section 16-25-120. The device must be capable of recording the person's location at all times. If the court orders a tier one device, before the participant is allowed to leave custody, the detention facility where the defendant is located, in coordination with the approved monitoring agency, must ensure the participant is fitted with an approved active electronic monitoring device, and that all appropriate bond paperwork, including the agreement with the bonding and electronic monitoring companies acknowledging the terms and restrictions of the bond, is completed.

(3) The participant:

(a)(i) who is ordered on tier one supervision must wear an approved active tier one device at all times to verify his compliance with the conditions of his detention and must maintain the monitoring device on his person at all times for the duration of the detention, subject to the order of the court and reasonable orders of an agent or employee of the monitoring agency in order to effectuate the conditions of the monitoring order. In areas of the State where cellular coverage requires the use of an alternate device, the approved electronic monitoring company may use an alternate approved device with approval of the court; or

(ii) who is ordered on tier two supervision must maintain possession of his approved tier two device on or near his person at all times for the duration of the detention and must verify his identity and location at any time required by the order of the court and reasonable orders of an agent or employee of the monitoring agency in order to effectuate the conditions of the monitoring order. For purposes of this subsection, "near" means within hearing distance of the device's notification or call alerts but not farther than thirty feet. In areas of the State where cellular coverage requires the use of an alternate device, the approved electronic monitoring company may use an alternate approved device with approval of the court;

(b) must charge and maintain the monitoring device in working order and must report any damage, destruction, or noticeable malfunction of the active monitoring device, whether the incident was accidental or intentional, and including the device having a dead battery, to at least one of the following parties within two hours of the incident: the monitoring agency, the appropriate law enforcement agency with jurisdiction over the underlying offense, or any other party specified in the order;

(c) must abide by other terms and conditions set forth by the approved electronic monitoring agency with regard to the monitoring device and electronic monitoring program;

(d) must turn himself in to custody of the appropriate detention facility upon the order of the monitoring agency, or the appropriate law enforcement agency with jurisdiction over the offense;

(e) must pay for the cost of the approved active electronic monitoring device and the operation of the monitoring device for the duration of the time the person is required to be electronically monitored, subject to an order of indigency by the court. The summary court or circuit court has jurisdiction upon motion of the defendant to consider exempting a person from the payment of a part or all of the cost during a part or all of the duration of the time the person is required to be electronically monitored, if it is determined that exceptional circumstances exist such that these payments cause a severe hardship to the person who is deemed indigent. If the indigency hearing is held at a time and date separate from the initial bond hearing, the defense must notify the prosecutor, the bondsman, and the monitoring agency of the date, time, and location of the hearing subject to the notice requirements of the court.

The payment of the cost must be a condition of supervision of the person and a delinquency of two weeks or more in making payments may operate as a violation of a term or condition of the electronic monitoring and bond. No person shall be denied the privilege of electronic monitoring under this statute based on inability to pay upon a finding by the court that the defendant meets the qualifications for indigency. The State shall allocate funds to be housed in an indigency fund under the control of the Department of Public Safety to be distributed to the monitoring companies as appropriate to cover the cost of indigent participants.

(C) A participant ordered by the court to be monitored under the provisions of this section, who fails to comply with any of the provisions of this section or who fails to comply with any additional condition of the court order including location restrictions, may have his bond revoked or may be punished for contempt at the discretion of the court.

(D) It is unlawful for any person, knowingly and without authority, to remove, tamper with, damage, destroy, shield the signal from, or otherwise circumvent an active electronic monitoring device, or to aid or assist a person ordered by the court to be electronically monitored under the provisions of this section to remove, tamper with, damage, destroy, shield the signal from, or otherwise circumvent a monitoring device, and upon conviction, the person must be punished under the provisions of Section 24-13-425. This subsection does not apply to a person or agent of the electronic monitoring agency or bonding company, or a member of law enforcement acting under the authority of and with compliance to the court order.

(E)(1) Upon violation of any of these requirements and a showing by affidavit and supporting records by the electronic monitoring company on a domestic violence bond or general sessions bond or where emergency circumstances exist on any other bond, the approved electronic monitoring company may approach a summary court judge for a bench warrant if one is not already provided for in the bond paperwork or other court order. Law enforcement shall immediately attempt to locate and incarcerate the defendant upon notice of the bench warrant. After incarceration, the prosecutor must be notified and the defendant must be brought before a summary court judge within three calendar days or before a circuit court judge within three business days, whichever has jurisdiction of the underlying charge, to determine whether the bond is to be reconsidered or bond conditions amended. The prosecution must provide the defense with any relevant evidence regarding the alleged violation within a reasonable time before the hearing and the hearing may be continued for cause.

(2) Nothing in this section shall reduce any duty of the bondsman to pick up the offending bailee and immediately incarcerate him for violation of bond conditions. Failure to do so may lead to bond estreatment for failure to enforce bond conditions by the bondsman and possible other administrative or criminal action.

(3) Nothing in this section may be used to hold the electronic monitoring agency civilly liable for any criminal acts of the defendant committed while being monitored.

SECTION X. Chapter 15, Title 17 of the S.C. Code is amended by adding:

Section 17-15-37.(A) The South Carolina Law Enforcement Division may promulgate regulations to effectuate the intent of Section 17-15-35 and this section, develop standards for the use and approval of tier one and tier two active electronic monitoring devices, and shall certify electronic monitoring agencies, including law enforcement agencies, electronic monitoring companies, and bondsmen and bonding companies. SLED must keep a public list of those companies that are certified.

(B) The approved electronic monitoring agency must:

(1) provide active electronic monitoring devices or mobile phone applications approved by SLED that:

(a) for a tier one device, must actively monitor and record a person's location at least once every minute, twenty-four hours a day, and that timely record and report the person's presence near or within a prohibited area or the person's departure from a specified geographic location;

(b) for a tier two device or mobile phone applications, must provide verifiable identity and location information at regular and random intervals throughout the day, allowing for reasonable times of sleep, and that timely record and report the person's presence near or within a prohibited area or the person's departure from a specified geographic location;

(2) allow any law enforcement agency, including the prosecutor's office, to have access to real-time monitoring, if possible, and any reports requested by law enforcement or the prosecution must be provided within twenty-four hours of the request;

(3) notify the solicitor having jurisdiction over the participant and the bondsman within forty-eight hours when he becomes aware or should have become aware that the participant has violated any provision of the court's order for electronic monitoring, or the participant has been surrendered to the custody of law enforcement; and

(4) immediately notify local law enforcement and make reasonable attempts to immediately notify the victim if the participant violates any exclusion zones related to the victim.

(C) Failure of the electronic monitoring agency to maintain compliance with regulations established by SLED, the order of the court, or any applicable statute shall be reported to SELD by the solicitor for administrative action. SLED may impose a fine, or suspend or revoke the certification for any approved agency who demonstrates a failure to maintain the standards and reporting requirements set forth under the regulations and appropriate statutes.

SECTION X. Section 38-53-10(12) of the S.C. Code is amended to read:

(12) "Surety bondsman" means any person who is approved by and licensed by the director or his designee as an a property and casualty insurance agent, appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings, and receives or is promised money or other things of value for the execution or countersignature.

SECTION X. Section 24-13-425 of the S.C. Code is amended to read:

Section 24-13-425. (A) For the purposes of this section:

(1) "Electronic monitoring device" includes any device ordered by a court or pursuant to any statute that is utilized to track the location of a person.

(2) "Person" includes any public or private agency or entity providing electronic monitoring services.

(B) It is unlawful for any person to knowingly and without authority remove, destroy, or circumvent the operation of an electronic monitoring device which is being used for the purpose of monitoring a person who is:

(1) complying with the Home Detention Act as set forth in Article 15, Title 24;

(2) wearing an electronic monitoring device as a condition of bond or pretrial release;

(3) wearing an electronic monitoring device as a condition of probation, parole, or community supervision; or

(4) wearing an electronic monitoring device as required by any other provision of law.

(C) It shall be unlawful for any person to knowingly and without authority request or solicit any other person to remove, destroy, or circumvent the operation of an electronic monitoring device which is being used for the purposes described in subsection (B).

(D) This section does not apply to an employee or agent of the electronic monitoring company, bonding company, or law enforcement entity who removes or replaces an active electronic monitoring device in order to perform maintenance and repair on the device, who removes and replaces a non-working device, who removes the device once the person is placed into secure custody or if the underlying charges have been dismissed, or who otherwise is acting under the authority of the court order.

(E) Any person who violates the provisions of this section shall be guilty of the misdemeanor offense of tampering with the operation of an electronic monitoring device and shall be imprisoned for not more than three years, or fined up to three thousand dollars, or both.

Amend the bill further, by striking SECTION 14 and inserting:

SECTION 14.This act takes effect one hundred eighty days after approval by the Governor.