2023 District of Columbia Code › Title 23 - Criminal Procedure. [Enacted title] › Chapter 13 - Bail Agency [Pretrial Services Agency] and Pretrial Detention › Subchapter II - Release and Pretrial Detention › § 23–1322. Detention prior to trial

§ 23–1322. Detention prior to trial.
*NOTE: This section includes amendments by emergency legislation that will expire on March 20, 2024. To view the text of this section after the expiration of all emergency and temporary legislation affecting this section, click this link: Permanent Version.*
(a) The judicial officer shall order the detention of a person charged with an offense for a period of not more than 5 days, excluding Saturdays, Sundays, and holidays, and direct the attorney for the government to notify the appropriate court, probation or parole official, or local or state law enforcement official, if the judicial officer determines that the person charged with an offense:
(1) Was at the time the offense was committed, on:
(A) Release pending trial for a felony or misdemeanor under local, state, or federal law;
(B) Release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under local, state, or federal law; or
(C) Probation, parole or supervised release for an offense under local, state, or federal law; and
(2) May flee or pose a danger to any other person or the community or, when a hearing under § 23-1329(b) is requested, is likely to violate a condition of release. If the official fails or declines to take the person into custody during the 5-day period described in this subsection, the person shall be treated in accordance with other provisions of law governing release pending trial.
(b)(1) The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in § 23-1321(c) will reasonably assure the appearance of the person as required and the safety of any other person and the community, upon oral motion of the attorney for the government, in a case that involves:
(A) A crime of violence, or a dangerous crime, as these terms are defined in § 23-1331;
(B) An offense under section 502 of the District of Columbia Theft and White Collar Crimes Act of 1982, effective December 1, 1982 (D.C. Law 4-164; D.C. Official Code § 22-722);
(C) A serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness or juror; or
(D) A serious risk that the person will flee.
(2) If, after a hearing pursuant to the provision of subsection (d) of this section, the judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the person as required, and the safety of any other person and the community, the judicial officer shall order that the person be detained before trial.
(c) There shall be a rebuttable presumption that no condition or combination of conditions of release will reasonably assure the safety of any other person and the community if the judicial officer finds by probable cause that the person:
(1) Committed a dangerous crime , as that crime is defined in § 23-1331, while armed with or having readily available a pistol, firearm, imitation firearm, or other deadly or dangerous weapon;
(2) Has threatened, injured, intimidated, or attempted to threaten, injure, or intimidate a law enforcement officer, an officer of the court, or a prospective witness or juror in any criminal investigation or judicial proceeding;
(3) Committed a dangerous crime , as that crime is defined in § 23-1331, and has previously been convicted of a dangerous crime or a crime of violence which was committed while on release pending trial for a local, state, or federal offense;
(4) Committed a dangerous crime while on release pending trial for a local, state, or federal offense;
(5) Committed 2 or more dangerous crimes in separate incidents that are joined in the case before the judicial officer;
(6) [Repealed].
(7) Violated § 22-4504(a) (carrying a pistol without a license), § 22-4504(a-1) (carrying a rifle or shotgun), § 22-4504(b) (possession of a firearm during the commission of a crime of violence or dangerous crime), or § 22-4503 (unlawful possession of a firearm);
(8) Violated [subchapter VIII of Chapter 25 of Title 7, § 7-2508.01 et seq.], while on probation, parole, or supervised release for committing a dangerous crime or a crime of violence, as these crimes are defined in § 23-1331, and while armed with or having readily available a firearm, imitation firearm, or other deadly or dangerous weapon as described in § 22-4502(a); or
(9) Committed a crime of violence, as that term is defined in § 23-1331(4).
(d)(1) The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the government, seeks a continuance. Except for good cause, a continuance on motion of the person shall not exceed 5 days, and a continuance on motion of the attorney for the government shall not exceed 3 days. During a continuance, the person shall be detained, and the judicial officer, on motion of the attorney for the government or
sua sponte
, may order that, while in custody, a person who appears to be an addict receive a medical examination to determine whether the person is an addict, as defined in § 23-1331.
(2) At the hearing, the person has the right to be represented by counsel and, if financially unable to obtain adequate representation, to have counsel appointed.
(3) The person shall be afforded an opportunity to testify. Testimony of the person given during the hearing shall not be admissible on the issue of guilt in any other judicial proceeding, but the testimony shall be admissible in proceedings under §§ 23-1327, 23-1328, and 23-1329, in perjury proceedings, and for the purpose of impeachment in any subsequent proceedings.
(4) The person shall be afforded an opportunity to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.
(5) The person shall be detained pending completion of the hearing.
(6) The hearing may be reopened at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonably assure the appearance of the person as required or the safety of any other person or the community.
(7) When a person has been released pursuant to this section and it subsequently appears that the person may be subject to pretrial detention, the attorney for the government may initiate a pretrial detention hearing by ex parte written motion. Upon such motion, the judicial officer may issue a warrant for the arrest of the person and if the person is outside the District of Columbia, the person shall be brought before a judicial officer in the district where the person is arrested and shall then be transferred to the District of Columbia for proceedings in accordance with this section.
(e) The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account information available concerning:
(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or dangerous crime as these terms are defined in § 23-1331, or involves obstruction of justice as defined in § 22-722;
(2) The weight of the evidence against the person;
(3) The history and characteristics of the person, including:
(A) The person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) Whether, at the time of the current offense or arrest, the person was on probation, on parole, on supervised release, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under local, state, or federal law; and
(4) The nature and seriousness of the danger to any person or the community that would be posed by the person’s release.
(f) In a release order issued under § 23-1321(b) or (c), the judicial officer shall:
(1) Include a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct; and
(2) Advise the person of:
(A) The penalties for violating a condition of release, including the penalties for committing an offense while on pretrial release;
(B) The consequences of violating a condition of release, including immediate arrest or issuance of a warrant for the person’s arrest; and
(C) The provisions of § 22-722, relating to threats, force, or intimidation of witnesses, jurors, and officers of the court, obstruction of criminal investigations and retaliating against a witness, victim, or an informant.
(g) In a detention order issued under subsection (b) of this section, the judicial officer shall:
(1) Include written findings of fact and a written statement of the reasons for the detention;
(2) Direct that the person be committed to the custody of the Attorney General of the United States for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; provided, that after October 1, 2018, if the person is younger than 18 years of age, direct that the person be transferred to the custody of the Department of Youth Rehabilitation Services, subject to the federal standards under 28 C.F.R. § 115.14;
(3) Direct that the person be afforded reasonable opportunity for private consultation with counsel; and
(4) Direct that, on order of a judicial officer or on request of an attorney for the government, the person in charge of the corrections facility in which the person is confined deliver the person to the United States Marshal or other appropriate person for the purpose of an appearance in connection with a court proceeding.
(h)(1) The case of the person detained pursuant to subsection (b) of this section shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person shall be indicted before the expiration of 90 days, and shall have trial of the case commence before the expiration of 100 days. However, the time within which the person shall be indicted or shall have the trial of the case commence may be extended for one or more additional periods not to exceed 20 days each on the basis of a petition submitted by the attorney for the government and approved by the judicial officer. The additional period or periods of detention may be granted only on the basis of good cause shown, including due diligence and materiality, and shall be granted only for the additional time required to prepare for the expedited indictment and trial of the person. Good cause may include, but is not limited to, the unavailability of an essential witness, the necessity for forensic analysis of evidence, the ability to conduct a joint trial with a co-defendant or co-defendants, severance of co-defendants which permits only one trial to commence within the time period, complex or major investigations, complex or difficult legal issues, scheduling conflicts which arise shortly before the scheduled trial date, the inability to proceed to trial because of action taken by or at the behest of the defendant, an agreement between the government and the defense to dispose of the case by a guilty plea on or after the scheduled trial date, or the breakdown of a plea on or immediately before the trial date, and allowing reasonable time to prepare for an expedited trial after the circumstance giving rise to a tolling or extension of the 100-day period no longer exists. If the time within which the person must be indicted or the trial must commence is tolled or extended, an indictment must be returned at least 10 days before the new trial date.
(2) For the purposes of determining the maximum period of detention under this section, the period shall begin on the latest of:
(A) The date the defendant is first detained under subsection (b) of this section by order of a judicial officer of the District of Columbia after arrest;
(B) The date the defendant is first detained under subsection (b) of this section by order of a judicial officer of the District of Columbia following a re-arrest or order of detention after having been conditionally released under § 23-1321 or after having escaped;
(C) The date on which the trial of a defendant detained under subsection (b) of this section ends in a mistrial;
(D) The date on which an order permitting the withdrawal of a guilty plea becomes final;
(E) The date on which the defendant reasserts his right to an expedited trial following a waiver of that right;
(F) The date on which the defendant, having previously been found incompetent to stand trial, is found competent to stand trial;
(G) The date on which an order granting a motion for a new trial becomes final; or
(H) The date on which the mandate is filed in the Superior Court after a case is reversed on appeal.
(3) After 100 days, as computed under paragraphs (2) and (4) of this section, or such period or periods of detention as extended under paragraph (1) of this section, the defendant shall be treated in accordance with § 23-1321(a) unless the trial is in progress, has been delayed by the timely filing of motions, excluding motions for continuance, or has been delayed at the request of the defendant.
(4) In computing the 100 days, the following periods shall be excluded:
(A) Any period from the filing of the notice of appeal to the issuance of the mandate in an interlocutory appeal;
(B) Any period attributable to any examination to determine the defendant’s sanity or lack thereof or his or her mental competency or physical capacity to stand trial;
(C) Any period attributable to the inability of the defendant to participate in his or her defense because of mental incompetency or physical incapacity; and
(D) Any period in which the defendant is otherwise unavailable for trial.
(i) Nothing in this section shall be construed as modifying or limiting the presumption of innocence.
(July 29, 1970, 84 Stat. 644, Pub. L. 91-358, title II, § 210(a); Sept. 17, 1982, D.C. Law 4-152, § 3, 29 DCR 3479; July 28, 1989, D.C. Law 8-19, § 2(a), 36 DCR 2844; May 8, 1990, D.C. Law 8-120, § 2(a), 37 DCR 24; July 3, 1992, D.C. Law 9-125, § 3, 39 DCR 2134; Aug. 20, 1994, D.C. Law 10-151, § 602(a), 41 DCR 2608; May 16, 1995, D.C. Law 10-255, § 17, 41 DCR 5193; July 25, 1995, D.C. Law 11-30, § 6, 42 DCR 1547; June 3, 1997, D.C. Law 11-273, § 3(b), 43 DCR 6168; June 3, 1997, D.C. Law 11-275, § 14(f), 44 DCR 1408; June 12, 2001, D.C. Law 13-310, § 2(b), 48 DCR 1648; May 17, 2002, D.C. Law 14-134, § 7, 49 DCR 408; May 5, 2007, D.C. Law 16-308, § 3(a), 54 DCR 942; Dec. 10, 2009, D.C. Law 18-88, § 223, 56 DCR 7413; Sept. 26, 2012, D.C. Law 19-171, § 78, 59 DCR 6190; June 19, 2013, D.C. Law 19-320, § 107(c), 60 DCR 3390; Apr. 4, 2017, D.C. Law 21-238, § 103, 63 DCR 15312; Dec. 21, 2023, D.C. Act 25-339, § 7(c)(1), 70 DCR 16594.)
Prior Codifications
1981 Ed., § 23-1322.
1973 Ed., § 23-1322.
Section References
This section is referenced in § 23-1321, § 23-1323, § 23-1324, and § 23-1329.
Effect of Amendments
D.C. Law 13-310, in subsec. (a), inserted “or misdemeanor” following “felony” in par. (1)(A), and inserted “or, when a hearing under § 23-1329(b) is requested, is likely to violate a condition of release” in par. (2); in subsec. (f)(2)(B), substituted “immediate arrest or” for “the immediate”; and rewrote subsec. (h) which had read:
“(h) The case of the person detained pursuant to subsection (b) of this section shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person shall be indicted before the expiration of 90 days, and shall have trial of the case commence before the expiration of 100 days. However, the person may be detained for an additional period not to exceed 20 days from the date of the expiration of the 100-day period on the basis of a petition submitted by the attorney for the government and approved by the judicial officer. The additional period of detention may be granted only on the basis of good cause shown and shall be granted only for the additional time required to prepare for the expedited trial of the person. For the purposes of determining the maximum period of detention under this section, the period shall not exceed 120 days. The period shall:
“(1) Begin on the date defendant is first detained after arrest; and
“(2) Include the days detained pending a detention hearing and the days in confinement on temporary detention under subsection (a) of this section whether or not continuous with full pretrial detention. The defendant shall be treated in accordance with § 23-1321(a) unless the trial is in progress, has been delayed by the timely filing of motions excluding motions for continuance, or has been delayed at the request of the defendant.”
D.C. Law 14-134, in subsec. (a)(1)(C), substituted “Probation, parole, or supervised release” for “Probation or parole”; and in subsec. (e)(3)(B), inserted “on supervised release,” following “parole,”.
D.C. Law 16-308, in subsec. (c), substituted “imitation firearm, or other deadly or dangerous weapon;” for “or imitation firearm;” in par. (1), deleted “; or” from the end of par. (3), substituted a semicolon for a period at the end of par. (4), and added pars. (5), (6), and (7).
D.C. Law 18-88, in subsec. (c), substituted “probable cause” for “a substantial probability” in the lead-in language, deleted “or” from the end of par. (6), rewrote par. (7), and added par. (8). Prior to amendment, par. (7) of subsec. (c) read as follows: “(7) Committed CPWL, carrying a pistol without a license.”
The 2012 amendment by D.C. Law 19-171 made a technical correction to D.C. Law 18-88 which did not affect this section as codified.
The 2013 amendment by D.C. Law 19-320 substituted “or § 22-4503 (unlawful possession of a firearm)” for “§ 22-4503 (unlawful possession of a firearm) or [§ 22-2511] (presence in a motor vehicle containing a firearm)” in (c)(7).
Applicability
Section 7016 of D.C. Law 22-168 repealed Section 701 of D.C. Law 21-238. Therefore the amendments made to this section by D.C. Law 21-238 have been implemented.
Section 7026 of D.C. Law 22-33 amended § 701(a) of D.C. Law 21-238, retaining the applicability restrictions impacting this section. Therefore the changes made to this section by D.C. Law 21-238 have not been implemented.
Applicability of D.C. Law 21-238: § 701 of D.C. Law 21-238 provided that the change made to this section by § 103 of D.C. Law 21-238 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Emergency Legislation
For temporary (90 days) amendment of this section, see § 7(c) of Prioritizing Public Safety Second Congressional Review Emergency Amendment Act of 2023 (D.C. Act 25-339, Dec. 21, 2023, 70 DCR 16594).
For temporary (90 days) amendment of this section, see § 6(c) of Prioritizing Public Safety Congressional Review Emergency Amendment Act of 2023 (D.C. Act 25-257, Oct. 16, 2023, 70 DCR 13849).
For temporary (90 days) amendment of this section, see § 7(c) of Prioritizing Public Safety Emergency Amendment Act of 2023 (D.C. Act 25-175, July 20, 2023, 70 DCR 10358).
For temporary (90 days) amendment of § 701|(a) of D.C. Law 21-238, see § 7026 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) amendment of § 701|(a) of D.C. Law 21-238, see § 7026 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary amendment of section, see § 602 of the Omnibus Criminal Justice Reform Emergency Amendment Act of 1994 (D.C. Act 10-255, June 22, 1994, 41 DCR 4286).
For temporary (90 day) amendment of section, see § 2 of Sentencing Reform Technical Amendment Emergency Act of 2001 (D.C. Act 14-148, October 23, 2001, 48 DCR 10195).
For temporary (90 day) amendment of section, see § 2 of Sentencing Reform Technical Amendment Congressional Review Emergency Act of 2002 (D.C. Act 14-240, January 28, 2002, 49 DCR 1024).
For temporary (90 day) amendment of section, see § 301 of Enhanced Crime Prevention and Abatement Emergency Amendment Act of 2006 (D.C. Act 16-446, July 21, 2006, 53 DCR 6477).
For temporary (90 day) amendment of section, see § 101 of Crime Reduction Initiative Emergency Amendment Act of 2006 (D.C. Act 16-491, October 19, 2006, 53 DCR 8818).
For temporary (90 day) amendment of section, see § 102(a) of Crime Reduction Initiative Congressional Review Emergency Amendment Act of 2007 (D.C. Act 17-9, January 16, 2007, 54 DCR 1471).
For temporary (90 day) amendment of section, see § 3(a) of Crime Reduction Initiative (Rebuttable Presumption) Congressional Review Emergency Act of 2007 (D.C. Act 17-24, April 19, 2007, 54 DCR 4033).
For temporary (90 day) amendment of section, see § 402 of Crime Bill Emergency Amendment Act of 2009 (D.C. Act 18-129, June 29, 2009, 56 DCR 5495).
For temporary amendment of (c)(7), see § 107(c) of the Omnibus Criminal Code Amendments Emergency Amendment Act of 2012 (D.C. Act 19-599, January 14, 2013, 60 DCR 1017).
For temporary (90 days) amendment of this section, see § 107(c) of the Omnibus Criminal Code Amendment Congressional Review Emergency Act of 2013 (D.C. Act 20-44, April 1, 2013, 60 DCR 5381, 20 DCSTAT 1281).
Temporary Legislation
D.C. Law 14-115, in subsec. (a)(1)(C), substituted “Probation, parole, or supervised release,” for “Probation, or parole”; and, in subsec. (e)(3)(B), inserted “on supervised release,” following “parole,”.
Section 4(b) of D.C. Law 14-115 provided that the act shall expire after 225 days of its having taken effect.