Guam § 40 - Retaking of Defendant Upon Violation of

§ 40. Retaking of Defendant Upon Violation of

Conditions.

(a) Upon the ex parte application of the prosecuting attorney

and a showing that the person charged has willfully violated the

conditions of his release, any judge may issue a warrant directing

that the person be arrested and taken forthwith before the court

in which the action is pending.

(b) Where it would be impracticable to secure a warrant

pursuant to Subsection (a), any peace officer having reasonable

grounds to believe that a person released pursuant to this Chapter

has violated the conditions of his release may arrest the person

and take him forthwith before the court in which the action is

pending.

COURT DECISIONS: D.C. GUAM APP. DIV. 1979. Because there

was no evidence before the Superior Court to support the revocation of

appellate's release on bail in that the defendant had not violated any of his

conditions of release, defendant's arrest for violation of bail was improper

and defendant was ordered to be released on original conditions of bail

with the additional condition that he observe a curfew at his parents

house between the hours of 9:00 p.m. and 6:00 a.m. People v. Ulloa,

Anthony, D.C.Guam 1979, Crim. #79-00065A.

NOTE: Section 40.65 is based on ABA, Project on Minimum Standards

for Criminal Justice Pretrial Release § 5.6 (Approved draft 1968).

General law has always permitted the arrest and surrender of a defendant

by a surety who feared his principal was about to disappear. See § 40.45

and former § 1300. Under the procedures provided by this Chapter it is

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necessary to vest a similar authority in the proper public officers. It

should be noted, however, that Subsection (a) merely authorizes a

warrant to be issued, it does not require the court to do so. Where the

showing is weak or the violations are insignificant, the court may refuse

to issue a warrant and issue an order to show cause or require a noticed

motion as a prerequisite to further judicial action. Similarly Subsection

(b) is conditioned upon circumstances where securing a warrant would be

impracticable. Arbitrary and unreasonable arrests are not authorized and

should not be tolerated.

The purpose of this Section is to provide for arrest where there is a

threat of nonappearance. Nothing in this Section is intended to limit the

normal authority of a police officer to arrest the person without a warrant

for a subsequent offense. See generally §§ 20.15 and 20.20 (arrest

without a warrant). Separate authority for the issuance of a warrant where

the person fails to appear as required is provided by § 40.70.