Judges: MIKE BEEBE, Attorney General
Filed Date: 2/25/2004
Status: Precedential
Modified Date: 7/5/2016
The Honorable Michael Lamoureux State Representative P.O. Box 1064 Russellville, AR 72811-1064
Dear Representative Lamoureux:
You have presented the following questions for my opinion:
(1) If a municipal police department collects money on a traffic citation in advance of the designated court date and holds the money as bail on the traffic citation, would A.C.A. §
14-52-111 apply and the defendant have to pay the $20.00 fee?(2) Does A.C.A. §
14-52-111 apply to all traffic citations found in Title 27 of the Arkansas Code when the bail is collected in advance of the court date?
RESPONSE
Question 1 — If a municipal police department collects money on a trafficcitation in advance of the designated court date and holds the money asbail on the traffic citation, would A.C.A. §
It is unclear whether you are referring to collection of the actual fine for the traffic citation, or to the taking of bail. If you are referring to collection of the actual fine for the traffic citation, it is my opinion that A.C.A. §
A.C.A. §
Every municipal police department in this state is authorized to charge and collect a twenty dollar ($20.00) fee for taking and entering every bail or delivery bond.
A.C.A. §
The $20.00 fee that is authorized by A.C.A. §
(6)(A) "Taking of bail" or "take bail" means the acceptance by a person authorized to take bail of the undertaking of a sufficient surety for the appearance of the defendant according to the terms of the undertaking, or that the surety will pay to the court the sum specified.
A.C.A. §
One of my predecessors analyzed the above quoted definition in the context of a situation in which a sheriff was collecting payment of fine for traffic violations prior to the defendants' court dates. The question was whether the sheriff was entitled to a bond fee. The opinion stated:
Under the terms of the above-quoted definition [i.e., the definition quoted above from A.C.A. §
16-84-101 ], the purpose of taking bail is to assure the appearance of the defendant, or to assure that the defendant will pay the specified fine. That is, bail is taken in situations where the defendant is released and does not pay. It is precisely because the defendant does not pay that security for payment is necessary. Such security is clearly unnecessary in a situation in which the defendant pays the fine in advance of the first court date. That payment is its own security in that the defendant forfeits the amount paid if he or she does not appear. Therefore the acceptance of early payment of the fine is not equivalent to the taking of bail.
Op. Att'y Gen. No.
I agree with my predecessor's analysis of this question. If a municipal police department collects the fine for a traffic citation in advance of the designated court date and holds the money as "bail," the department has not "taken bail" in the sense described in the definition of the phrase "taking of bail," quoted above from A.C.A. §
This view is supported by Arkansas Rule of Criminal Procedure 9.2(d). Rule 9.2 generally addresses matters related to the setting of money bail and the factors that should be considered prior to release of a defendant on bail. Section (d) of the rule states:
(d) Nothing in this rule shall be construed to prohibit a judicial officer from permitting a defendant charged with an offense other than a felony from posting a specified sum of money which may be forfeited or applied to a fine and costs in lieu of any court appearance.
Arkansas Rules of Criminal Procedure, Rule 9.2(d).
This provision appears to differentiate between the taking of bail and situations in which a defendant posts a sum of money to be forfeited in lieu of appearance in court.
In situations in which a defendant chooses not to contest a citation, does not intend to appear in court, and pays a sum of money to be forfeited as the actual fine for the violation, bail has not been taken, in my opinion. Because, in such situations, the department has not "taken bail," it is not entitled to payment of the fee that is authorized in A.C.A. §
However, if the money collected by the department is not the actual fine for the traffic citation, but is actual security to assure the appearance of the defendant or the payment of the fine, the department has "taken bail" in the sense of A.C.A. §
Question 2 — Does A.C.A. §
The conclusions stated in response to Question 1 above concerning the applicability of A.C.A. §
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which
I hereby approve.
Sincerely,
MIKE BEEBE Attorney General