THE DUTIES OF MUNICIPAL MAGISTRATES

THE DUTIES OF MAGISTRA= TES IN THE CIRCUIT AND DISTRICT COURTS

What are the powers and duties of the Circuit Cou= rt Clerk?

Circuit <= b>Clerks and Registers.

§ 12-17-94. Duties generally.

(a) The duties of the clerks of the circuit court include all of the following:

(1) To sign and issue all summons, subpoenas, writs, executions, and other processes, under the authority of the court.

(2) To keep a consolidated docket sheet of civil and criminal cases, the names = of the parties, the character of action or offense, the names of the attorneys= and the sheriff's return, which shall be entered in all civil and criminal cases standing for trial, in the order in which they are brought, and the bench notes, orders, rulings on motions and pleadings, other preliminary matters = and final judgment which have been made in each case by the judge, which shall = be the official minutes.

(3) To keep all papers, books, dockets, and records belonging to their office w= ith care and security, with the papers filed, arranged, numbered, and labeled, = so as to be of easy reference, and the books, dockets and records properly lettered. Parties shall be allowed to inspect the records free of charge.

(4) To make out and deliver, on application and payment of the legal fees there= for, to any person applying for the same, a correct transcript, properly certifi= ed, of any paper or record in their offices.

(5) To exercise such duties as are, or may= be, conferred upon them by law, including administrative rules promulgated by o= rder of the Supreme Court of Alabama.

(6) To monitor compliance with court orders issued by a state court which assess court costs, fines, and other related court-ordered money against criminal defendants and to utilize accounts receivable systems and other procedures, including notice processes, to ens= ure payment of court-ordered money.

(b) Any clerk= of any circu= it court who fails to perform any duty imposed on him or her, for the fai= lure to perform which no other punishment is provided, shall, on conviction, be fined not exceeding $200.00.

(Code 1852, §§ 650, 653; Code 1867, §§ 767, 773; Code 1876, §§ 671, 4159; Code 1886, §§ 768, 3950; = Code 1896, §§ 934, 5146; Code 1907, §§ 3272, 7464; Code 1923, §§ 5056, 6724; Code 1940, T. 13, §§ 198, 203; Acts 1975, No. 1205, p. 2384; A= cts 1994, No. 94-698, p. 1352, § 1.)

Alabama Rules of Judicial Administration

Rule 4. Duties of the clerk or register.

I. The followin= g duties shall repose in the office of clerk and register of the circuit court and clerk of the district court.

(A) The clerk or register, or his or her representativ= e, shall attend sessions of court in his or her circuit= or district when required by the court to do so.

(B) The clerk or register shall keep such indexes as w= ill ensure ready reference to any action or proceeding filed in the court, in a= ccordance with such procedures as may be established by the administrative director of courts ("ADC").

= (C) The clerk or register shall issue all process and notices required by law or directed by= the court to be issued.

= (D) The clerk or register shall be the custodian of court records and shall keep such record= s of the court as are required by law, by Supreme Court rule, or by the ADC. The clerk shall prepare and issue all reports and other documents, including monthly reports, that are required by law, rule, court order, or directive = of the ADC.

(E) The clerk or register shall safely, orderly, and efficiently keep or dispose of, according to law, Supreme Court rule, or directive of the ADC, all papers and records filed or deposited in= any action or proceeding before the court.

= (F) The clerk or register, acting under the supervision of the court, shall be responsible f= or the management of jurors during their service, except as may be otherwise provided.

= (G) The clerk or register shall receive annual funding, as allotted by the ADC, for supplies= and forms, and shall administer his or her office in such a manner as to operate within the approved budget.

= (H) The clerk or register shall remit, as provided by law or rule, all fines, forfeitures, and costs of court, including prepaid docket fees, to the officials designa= ted to receive such moneys at the municipal, county, and state levels. The cler= k or register shall periodically remit such moneys, no less often than once a mo= nth and not later than the fifteenth day of each month. The = clerk or register shall forward to the ADC a copy of the remittance form and such other other reports as may be required.

(I) The clerk or register, after obtaining the advice of the presiding circuit judge, shall designate approved state depositories to serve as depositories= for all funds collected by, deposited with, or maintained by the clerk or register in his or her official capacity. The cle= rk or register shall ensure that all designated depositories are insured either by the Federal Deposit Insurance Corporation or by the Federal Savings and Loan Insurance Corporation. Except as otherwise provided in this rule, all funds maintained by the clerk or register in his or her of= ficial capacity other than moneys collected in cases that are governed by Title IV-D of the Social Security Act, shall be placed in interest-bearing accounts in the designated state depositories. The interest received on such funds, less any service, maintenance, or ancillary charges that may be made by the depository on such accounts, shall be paid into the State General Fund periodically, as provided in subsection (H) of this part= I; provided, however, that the interest earned on those fiduciary sums that are specifically ordered by the trial court to be deposited at interest, less a= ny administrative charges that may be made by the depository, shall be disburs= ed as otherwise provided by law or rule.

When depositing funds in interest-bearing accounts, the clerk or register shall = seek to obtain the maximum return available, taking into consideration administrative charges made by the depository and the services provided to = the clerk or register on such accounts. The clerk or register shall also evalua= te whether any service, maintenance, or ancillary charges made by a depository= on any account utilized in the clerk or register's official capacity exceeds t= he potential earnings. If the clerk or register determines that the administra= tive costs that will be imposed by the depository on any account or on any funds= to be deposited at interest exceed the potential earnings thereon, then the cl= erk or register, in his or her discretion, may maintain such funds in a non-interest bearing account in the depository; provided, however, that this discretion shall not apply to funds that are deposited pursuant to an order= of the trial court.

The Chief Justice shall have authority to review administrative decisions not to place funds in interest-bearing accounts and may assist the clerk or regist= er in developing an investment plan consistent with this rule that should prov= ide interest income to the State General Fund.

(J) The clerk or register shall prepare appeal transcripts in accordance with the Alabama Ru= les of Appellate Procedure.

(K) The clerk or register shall perform such other duties as may be imposed by law, rule, co= urt order, or directive of the ADC.

<= /o:p>

What is a Magistrate?<= o:p>

        &= nbsp;   Magistrates are judicial officers created by the Alabama Constitution under Section 6.01(b) of Amendment No. 328, which provides magistrates with the express authority to issue arrest warrants.

What are the powers and duties of Magistrates in the Circuit and District Courts?=

§ 12-17-250. District court administrative agency create= d; powers and duties thereof; persons deemed offi= cials of agency; judicial powers thereof generally.

The district court shall have under its supervision a district court administrative agency empowered to prov= ide expeditious service in connection with administrative adjudication of minor misdemeanors, the issuance of warrants, certain juvenile justice functions,= as provided by this title, and other powers provided by law; provided, that th= e clerk of = the district court shall have responsibility for administration of said clerk's office.

The personnel designated by the judge or judges and the clerk of the district court, as magistrates and referees in juvenile ca= ses, shall be considered as officials of such administrative agency. Such offici= als shall be vested with judicial power reasonably incident to the accomplishme= nt of the purposes and responsibilities of the administrative agency; provided, that the clerk of the district court shall have responsibility for administration of said <= span style=3D'mso-bidi-font-weight:bold'>clerk's o= ffice.

(Acts 1975, No. 1205, p. 2384, § 4-10= 6.)

§ 12-17-251. Magistrates deemed chief officers of age= ncy; appointment and powers of magistrates.

(a) The magistrates shall be considered the chief officers of such administrative agency, subje= ct to the administrative direction of the clerk of the distr= ict court.

(b) The Supreme Court may, by rule, prescribe procedures for the appointment of magistrates by class or position. In addition thereto, the Supreme Court may provide for the appointment of other magistrates by the Administrative Director of Courts, upon recommendation and nomination by the judge or ju= dges and the clerk of the district court under whom such magistrates are to serve.

(c) The powers of a magistrate= shall be limited to:

(1) Issuance of arrest warrants and, where such magistrate is licensed to practice law in Alabama or was serving= as a full-time magistrate or warrant clerk on September 1, 1976, and who continued in such capacity as a merit system employee in the district court, search warrants;

(2) Granting of bail in minor misdemeanor prosecutions;

(3) Receiving of pleas of guilty in minor misdemeanors where a schedule of fines has been prescribed by rule; and

(4) Such other authority as may be granted= by law.

(Acts 1975, No. 1205, p. 2384, § 4-106; Acts 1977, No. 55= 1, p. 740; Acts 1980, No. 80-765, p. 1594.)

RULE 18, Alabama Rules of Judicial Administrati= on (ARJA) provides for Magistrate duties as follows:

        &= nbsp;

What is Probable Cause?

Definition: The existence of facts and circumstances which would cause a reasonable person to believe that (1) a criminal offense has been more than likely been committed, and (2) that the person alleged to have committed the criminal offense more than likely committed the offense. NOTE: mere suspicion or belief that a cr= iminal offense was committed by an alleged defendant, unsupported by facts or circumstances, is insufficient to support a determination that probable cau= se exists to swear out a warrant.

NOTE: A Deposition is the written testimony of a witness, taken under oath or affirma= tion, before a judicial officer (a judge, court clerk/magistrate), the contents of which purport to be true. Magistrates should have complainants, witnesses, = and even alleged defendants sign a deposition form to support the magistrate’s finding of probable cause.

SELECTED RULES OF CRIM= INAL PROCEDURE RELATING TO ARREST WARRANTS

Rule 2.1. Commencement of criminal proceedings.=

“All criminal proceedings shall be commenced either by indictment or by complaint.”

Rule 2.3. Contents of a complaint.

“A complaint is a written statement made upon oath befo= re a judge, magistrate, or official authorized by law to issue warrants of arres= t, setting forth essential facts constituting an offense and alleging that the defendant committed the offense.”

Rule 2.4. Duty of judge or magistrate= upon making of a complaint.

“The judge or magistrate before whom a complaint is made may subpoena for examination any necessary witnesses. In the event a duly summoned witness fails to appear, the judge or magistrate is authorized to issue a writ of attachment for the defaulting witness, commanding that said witness be brought before the issuing judge or magistrate at once for the purpose of examination. If the judge or magistrate is reasonably satisfied = from the complaint and the evidence, if any, submitted that the offense complain= ed of has been committed and that there is probable cause to believe that the defendant committed it, the judge or magistrate shall proceed under Rule 3.1.”

Rule 3.1. Issuance of arrest warrant or summons.

“(a) ISSUANCE. Upon return of an indictment, or upon a finding of probable cause made pursuant to Rule 2.4, the judge or magistrate shall immediately cause to be issued an arrest warrant or a summons, as provided in Rule 3.2.

“(b) SUMMONS. If the defendant is not in custody, if the offense charged is bailable as a matter of right, and if there is no reason= to believe that the defendant will not respond to the summons, a summons may be issued, at the sole discretion of the issuing judge or magistrate.

“(c) SUBSEQUENT ISSUANCE OF WRIT OF ARREST. If a defend= ant who has been duly summoned fails to appear, or if after issuance of a summo= ns there is reasonable cause to believe that the defendant will fail to appear= , or if for any reason the summons cannot be served or delivered, a writ of arre= st shall issue. More than one writ of arrest or summons may issue on the same complaint or indictment.

“(d) DOCKETING CASE. A case shall be docketed upon serv= ice of a summons or upon the defendant's arrest.”

Rule 3.2. Contents of arrest warrant = or summons.=

“(a) ARREST WARRANT. An arrest warrant issued upon a complaint shall be signed by the issuing judge or magistrate. An arrest war= rant issued upon an indictment shall be signed by the circuit judge presiding, by the circuit clerk, or by a judge or other magistrate designated to do so by= the presiding judge of the circuit court by order entered on the minutes of the court. The arrest warrant shall contain the name of the defendant, or if the name is unknown, a name or description by which the defendant can be identi= fied with reasonable certainty; it shall state the offense with which the defend= ant is charged; and it shall command that the defendant be arrested and brought before the issuing judge or magistrate, or, if the issuing judge or magistr= ate is unavailable, before the nearest or most accessible district or circuit j= udge or magistrate in the same county. If the defendant is bailable as a matter = of right, the arrest warrant may state the conditions of the defendant's relea= se on his or her own recognizance under Rule 7.2 or an amount of an appearance bond or a secured appearance bond predetermined by the court.

“(b) SUMMONS. The summons shall be in the same form as = the arrest warrant, except that it shall summon the defendant to appear at a st= ated time and place within a reasonable time from the date of issuance. At the discretion of the issuing judge or magistrate, the summons may command the defendant to report to a designated place to be photographed and fingerprin= ted prior to appearance in response to the summons. Failure to so report for photographing or fingerprinting shall result in issuance of a warrant for t= he defendant's arrest unless good cause for such failure is shown. If, upon the defendant's appearance, the defendant has not been photographed and fingerprinted, the issuing judge or magistrate shall direct that the defend= ant be taken promptly for such photographing and fingerprinting.”<= span style=3D'font-size:9.5pt;font-family:Verdana'>

Rule 4.3<= /i>. Procedure upon arrest.

= (a) ON ARREST WITHOUT A WARRANT.

(1) A person arrested without a warrant:

(i) May be cited by a law enforcement officer to appear either= at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or
(ii) May be released by a law enforcement officer upon executi= on of an appearance bond or a secured appearance bond in an amount set accordi= ng to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or

(iii) Shall be afforded an opportunity to make bail in accorda= nce with Rules 4.3(b)(3) and 4.4. A judge or magistrate in the county of arrest shall determine whether probable cause exists to believe that the defendant committed the charged offense, by examining any necessary witnesses in accordance with the procedures for making a probable cause determination provided in Rule 2.4. If the judge or magistrate finds there is probable ca= use for the arrest of the person, a complaint shall promptly be prepared, filed, and served on the defendant, and the judge or magistrate shall proceed as provided in Rule 4.4 for initial appearance. If a probable cause determinat= ion is not made by a judge or magistrate without undue delay, and in no event l= ater that forty-eight (48) hours after arrest, then, unless the offense for which the person was arrested is not a bailable offense, the person shall be rele= ased upon execution of an appearance bond in the amount of the minimum bond set = in Rule 7.2, and shall be directed to appear either at a specified time and pl= ace or at such time and place as he or she shall be subsequently notified of; o= r

(iv) In the event the defendant is released on the minimum bond amount provided in the bail schedule, the prosecutor may file a motion with= the court to reconsider the bond amount and the conditions of release, and the procedures thereafter shall be in accordance with Rule 7.5.

(2) If a person arrested without a warrant has been released and cited or directed to appear without having been taken before a judge or magistrate for a probable cause determination, the officer or private person who made the arrest shall with= out undue delay make a complaint before a judge or magistrate as provided in Ru= les 2.3 and 2.4. If the judge or magistrate finds probable cause, the complaint shall be served on the defendant in the manner provided in Rule 3.4 for ser= vice of summons, or shall be delivered to the defendant at the time of the defen= dant's appearance. If the judge or magistrate does not find probable cause, the pe= rson arrested shall promptly be notified and advised that an appearance will not= be required. Notification shall be made by the magistrate or clerk of the cour= t by mail directed to the defendant at the defendant's last known address.<= /o:p>

(b) ON ARREST WITH A WARRANT.

(1) If provision therefor has been made by the judge or magist= rate issuing the arrest warrant, a person arrested with a warrant shall be relea= sed on an appearance bond in the amount set in accordance with the schedule contained in Rule 7.2 and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified= of.

(2) If the person arrested cannot meet the conditions of relea= se provided on the warrant, or if no such conditions are prescribed or provided for,

(i) If such person was arrested pursuant to a warrant issued u= pon a complaint, he or she shall be taken without undue delay, except in no eve= nt later than seventy-two (72) hours after arrest, before a judge or magistrat= e, who shall proceed as provided in Rule 4.4, or

(ii) If such person was arrested pursuant to a warrant issued = upon an indictment, he or she shall be taken without undue delay, except in no e= vent later than seventy-two (72) hours after arrest, before a circuit judge, who shall proceed as provided in Rule 4.4.

(3) If the person arrested cannot meet the conditions of relea= se and has not been taken before a judge or magistrate in the case of a warrant issued on a complaint, or has not been taken before the circuit court in the case of a warrant issued on an indictment, without undue delay, except in either case in no event later than seventy-two (72) hours after arrest, unl= ess the charge upon which the person was arrested is not a bailable offense, su= ch person shall be released upon execution of an appearance bond in the minimum amount required by the schedule set forth in Rule 7 and directed to appear = for arraignment either at a specified time and place or at such time and place = as he or she shall be subsequently notified of.

(4) Upon request, the defendant shall be given a copy of the charges against him or her.

(c) ASSURANCE OF AVAILABILITY OF JU= DGE OR MAGISTRATE. The judge or presiding judge and the clerk of the appropriate court shall take such steps as are necessary to assure that a judge or magistrate with appropriate authority is available in the county to hold initial appearances as required by Rules 4.3(a)(1)(iii) and 4.3(b)(2)(i).

<= /o:p>

What is Jurisdiction?

§ 12-11-30. Circuit Court Jurisdiction. Generally.

(1) CIVIL. The circuit court shall = have exclusive original jurisdiction of all civil actions in which the matter in controversy exceeds ten thousand dollars ($10,000), exclusive of interest a= nd costs, and shall exercise original jurisdiction concurrent with the district court in all civil actions in which the matter in controversy exceeds three thousand dollars ($3,000), exclusive of interest and costs.

(2) CRIMINAL. The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or whi= ch arise from the same incident as a felony charge; except, that the district court shall have concurrent jurisdiction with the circuit court to receive pleas of guilty in felony cases not punishable by sentence of death. The circuit court may, on conviction of a defendant, upon a showing of inabilit= y to make immediate payment of fine and costs, continue the case from time to ti= me to permit the fine and costs to be paid (emphasis suppli= ed).

=
(3) APPELLATE. The circuit court sh= all have appellate jurisdiction of civil, criminal, and juvenile cases in distr= ict court and prosecutions for ordinance violations in municipal courts, except= in cases in which direct appeal to the Courts of Civil or Criminal Appeals is provided by law or rule. Appeals to the circuit court shall be tried de nov= o, with or without a jury, as provided by law.

(4) SUPERINTENDENCE OF DISTRICT, MUNICIPAL AND PROBATE COURTS. The circuit court shall exercise a general superintendence over all district courts, municipal courts, and probate cou= rts.

§ 12-12-32= . District Court = Criminal jurisdiction generally.

(a) Misdemeanors. The district court shall have exclusi= ve original trial jurisdiction over prosecutions of all offenses defined by la= w or ordinance as misdemeanors, except:

(1) Prosecutions by municipalities having municipal courts;

(2) Any such prosecution which also involves a felony offense which is within t= he exclusive jurisdiction of the circuit court, except as the district court is empowered to hold preliminary hearings with respect to felonies and to rece= ive guilty pleas as provided in subsection (b) of this section; and<= /span>

(3) Any misdemeanor for which an indictment has been returned by a grand jury.<= o:p>

(b) Felonies.=

(1) The district court may exercise original jurisdiction concurrent with the circuit court to receive pleas of guilty in prosecutions of offenses define= d by law as felonies not punishable by sentence of death.

(2) The district court shall have jurisdiction to hold preliminary hearings in prosecutions for felonies as provided for in Title 15 of this code.

(Acts 1975, No. 1205, p. 2384, § 4-106.)

WHAT IS BAIL?

&#= 8220;Bail” is the release of an arrested defendant from jail for an alleged criminal offense who has posted with the court money, professional surety bail or property in order to secure his or her presence at a following court date (= or has had a third party post such bail for him or her). Bail is not meant as a punishment to the defendant; however, bail will be forfeited should the defendant fail to appear in court without a legally recognized excuse (i.e., hospitalization; active military service; incarcerated elsewhere; deceased). In all non-capital murder cases, before conviction, the defendant is entitled to bail as a mat= ter of right. <= /p>

Rule 7.2. Right to release on one's personal recognizance or on bond.<= span style=3D'font-size:9.5pt;font-family:Verdana'>

“(a) BEFORE CONVICTION. Any defendant charged with an offense bailable as a matter of right may be released pending or during tri= al on his or her personal recognizance or on an appearance bond unless the cou= rt or magistrate determines that such a release will not reasonably assure the defendant's appearance as required, or that the defendant's being at large = will pose a real and present danger to others or to the public at large. If such= a determination is made, the court may impose the least onerous condition or conditions contained in Rule 7.3(b) that will reasonably assure the defenda= nt's appearance or that will eliminate or minimize the risk of harm to others or= to the public at large. In making such a determination, the court may take into account the following:

1. The age, background and family ties, relationships = and circumstances of the defendant.

2. The defendant's reputation, character, and health.<= o:p>

3. The defendant's prior criminal record, including pr= ior releases on recognizance or on secured appearance bonds, and other pending cases.

4. The identity of responsible members of the community who will vouch for the defendant's reliability.

5. Violence or lack of violence in the alleged commiss= ion of the offense.

6. The nature of the offense charged, the apparent probability of conviction, and the likely sentence, insofar as these factors are relevant to the risk of nonappearance.

7. The type of weapon used, e.g., knife, pistol, shotg= un, sawed-off shotgun.

8. Threats made against victims and/or witnesses.=

9. The value of property taken during the alleged commission of the offense.

10. Whether the property allegedly taken was recovered= or not; damage or lack of damage to property allegedly taken.

11. Residence of the defendant, including consideratio= n of real property ownership, and length of residence in his or her place of domicile.

12. In cases where the defendant is charged with a drug offense, evidence of selling or pusher activity should indicate a substanti= al increase in the amount of bond.

13. Consideration of the defendant's employment status= and history, the location of defendant's employment, e.g., whether employed in = the county where the alleged offense occurred, and the defendant's financial condition.

14. Any enhancement statutes related to the charged offense.

“(b) BAIL SCHEDULE. The following schedule is establish= ed as a general guide for circuit, district and municipal courts in setting ba= il for persons charged with bailable offenses. Except where release is require= d in the minimum scheduled amount pursuant to the Rules of Criminal Procedure, courts should exercise discretion in setting bail above or below the schedu= led amounts.”

       &= nbsp;           &nbs= p;            &= nbsp;     BAIL SCHEDULE

            =             &nb= sp;            =            Recommended Range<= /p>
FELONIES:
  Capital felony     &nbs= p;            &= nbsp;         $10,000 to&= nbsp;No Bail Allowed
  Murder        = ;            &n= bsp;            = ;   $5,000 to $50,000
  Class A felony     = ;            &n= bsp;          $3,000 = ;to $30,000
  Class B felony     = ;            &n= bsp;          $2,000 = ;to $20,000
  Class C felony     = ;            &n= bsp;          $1,000 = ;to $10,000
  Drug Trafficking     &n= bsp;            = ;        $3,000 to $1,000= ,000

Misdemeanors (not included elsewhere in = the schedule):
  Class A misdemeanor    =             &nb= sp;      $300 to $3,000
  Class B misdemeanor    =             &nb= sp;      $100 to $1,000
  Class C misdemeanor    =             &nb= sp;      $50 to $500
  Violation       &n= bsp;            = ;            &n= bsp;$50 to $500

Municipal Ordinance Violations    &= nbsp;         $100 to&nbs= p;$1,000

Traffic Related Offenses
  DUI        &n= bsp;            = ;            &n= bsp;     $300 to $5,000
  Reckless driving     &n= bsp;            = ;        $100 to $300
  Speeding       &nb= sp;            =             &nb= sp; $50 to $100
  Other traffic violations   &= nbsp;           &nbs= p;  $50 to $100

§ 15-= 13-107= . Who may or shall accept, take, and approve bail and under what circumstances.

“(a) Judges of any court within the State of Alabama may acce= pt, take, and approve bail within the jurisdiction of their respective courts.<= /span>

“(b) Circuit, district, and municipal court clerks, including magistrates, may accept, take, and approve bail within the jurisdiction of their respective courts.

“(c) Only judicial officers and circuit, district, and municipal court clerks or a designee of the court may accept and approve ap= peal bonds and cash bonds. Provided, however, that any person designated by the court to receive cash bonds, shall be bonded to receive court moneys and ha= ve the written approval of their chief administrative officer. Clerks of the courts of Alabama= may delegate to their employees the right to accept and approve appeal bonds and cash bonds.<= br>

“(d) Sheriffs of the state and chiefs of police having custody of a defendant may accept, take, and approve property or profession= al surety bail. The authority may be delegated to their deputies and officers.=

“(e) The judicial officers and persons in subsections (= a), (b), (c), and (d) shall accept and shall release the defendant when bail me= ets the requirements as set out in Division 10, applying to professional surety. The judicial officers and persons in subsection (c) shall accept, approve, = and release the defendant when the bail meets the requirements as set out in Division 9, applying to cash bail. The judicial officers and persons in subsections (a), (b), (c), and (d) may accept, approve, and release the defendant when the officer or person, as designated, is of the opinion the = bail meets the requirements as set out in Division 8 of this chapter, applying to property bail.”

MOST COMMON MISDEMEANOR OFFENSES

§ 13A= -11-10= . Public intoxication.

“(a) A person commits the crime of public intoxication = if he appears in a public place under the influence of alcohol, narcotics or o= ther drug to the degree that he endangers himself or another person or property,= or by boisterous and offensive conduct annoys another person in his vicinity.<= /span>

“(b) Public intoxication is a violation.”<= span style=3D'font-size:9.5pt;font-family:Verdana'>

§ 13A-11-10 COMMENTARY (as amended in this document)

The defendant must be in a public place and be under the influence of alcohol, narcotics or other drugs to such a degree that he may endanger himself or o= ther persons or property, or annoy persons around him. The section applies to any person who supplies the requisite elements, whether he is walking or drivin= g a car, bus, train, plane or boat, etc., for any such conduct may be dangerous= or annoying. The idea is to get them off the streets and out of the public.

§ 13A= -6-23. Menacing.

“(a) A person commits the crime of menacing if, by phys= ical action, he intentionally places or attempts to place another person in fear= of imminent serious physical injury.

“(b) Menacing is a Class B misdemeanor.”

§ 13A-6-23 COMMENTARY (as amended in this document)

Th= is section covers some situations that do not fall directly within the scope of the three basic assault provisions, = §§ 13A-6-20 through = 13A-6-22.

Ap= parently, under case law, the previously existing assault statutes did not cover the = mere creation of apprehension in a complaint of being harmed, where defendant did not actually intend an injury, or there was insufficient means, or no prese= nt ability, to accomplish the believed harm. The classic example is where defendant, intending to frighten another, points an unloaded gun at him, th= ough not known by the victim to be so. = Chapman v. State, 78 Ala. 463 (1885) (aiming unloaded gun in menacing ma= nner so as to terrify complainant not criminal assault; must be a present intent= ion, as well as present ability).

Te= chnically, such conduct, though culpable, does not constitute either assault or attemp= ted assault under the Criminal Code, for "physical injury" is neither inflicted nor intended. Accordingly, § 13= A-6-23 wo= uld cover this area of conduct. "Menacing" is committed by intentiona= lly placing or attempting to place another in fear of imminent serious physical injury. This is to be distinguished from the crime of harassment, = § 13A-11-8 , which covers, among other things, any unconsented to physical contact (e.g., shove or kick) that does not produce physical injury, provided it was intentionally done "to harass, annoy or alarm another person."

Of= course, any threat of physical injury accompanied by an intent and attempt to execu= te it also constitutes attempted assault.

CASENOTES<= /p>
Absent showing of actual abi= lity to inflict harm, defendant guilty at most of menacing. Abs= ent a showing of actual ability to inflict harm, the most that appellant could be guilty of would be menacing. Cobb v. State, 495 So.2d 7= 01 (Ala.Crim.App.1984), writ denied 495 So.2d 705.<= o:p>

Menacing is not a lesser included offense of reckless endangerment, because the types of culpability required by the two statutes= are disparate. Cobb v. State, 495 So.2d 7= 01 (Ala.Crim.App.1984), writ denied 495 So.2d 705. = Indictment And Information= 191(.5)

§ 13A= -6-24. Reckless endangerment.

“(a) A person commits the crime of reckless endangermen= t if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

(b) Reckless endangerment is a Class A misdemeanor.”

§ 13A-6-24 COMMENTARY (as amended in this docum= ent)

Re= ckless endangerment is a new crime and is applicable to reckless conduct which cre= ates a substantial risk of, but does not result in, serious physical injury.

§ 13A-11-8. Harassment or harassing communications.

&#= 8220;(a)(1) HARASSMENT. A person commits the crime of harassment if, with intent to har= ass, annoy, or alarm another person, he or she either:

a. Strikes, shoves, kicks, or otherwise touches a pers= on or subjects him or her to physical contact.

b. Directs abusive or obscene language or makes an obs= cene gesture towards another person.

&#= 8220;(2) For purposes of this section, harassment shall include a threat, verbal or nonverbal, made with the intent to carry out the threat, that would cause a reasonable person who is the target of the threat to fear for his or her safety.

&#= 8220;(3) Harassment is a Class C misdemeanor.

(b= )(1) HARASSING COMMUNICATIONS. A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:

a. Communicates with a person, anonymously or otherwis= e, by telephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.

b. Makes a telephone call, whether or not a conversati= on ensues, with no purpose of legitimate communication.

c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.<= /p>
No= thing in this section shall apply to legitimate business telephone communications.

(2) Harassing communications is a Class C misdemeanor.”=

§ 13A-11-8 COMMENTARY (as amended in this document)

Se= ction 13A-11-8 is intended to cover any unconsented-to physical touching that does not physically injure, provided = it is intentionally done to harass, annoy or alarm another person. In 1978, the legislature added in this section the crime of harassing communications, &s= ect; 13A-11-8(b).

§ 13A-6-22. Assault in the third= degree.

“(a) A person commits the crime of assault in the third degree if:

(1) With intent to cause physical injury to another person, he causes physical injury to any person; or

(2) He recklessly causes physical injury to another person; or

(3) With criminal negligence he causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or

(4) With intent to prevent a peace officer from performing a lawful duty, he causes physical injury to any person.

“(b) Assault in the third= degree is a Class A misdemeanor.”

COMMENTARY (as amended in this document)

Section 13A-6-22, assault in the third degree, a Class A misdemeanor, covers:

(a) Intentionally or

(b) Recklessly causing injury to another person (does not have to be serious); = or

(c) With criminal negligence causing injury by means of a deadly weapon or dangerous instrument; or

(d) With intent to prevent a peace officer from performing his duties, he physically injures any person.

What is a public record= ?

Public Records Defined, §41-13= -1, Code of Alabama

“As used in this article, the term 'public records' shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the pub= lic officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to a= ny court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, off= ice or officer (emphasis supplied).”

Inspection and Copying of Records

§36-12-40. Rights of citizens to inspect and copy public writings;...
<= span style=3D'font-size:10.0pt;mso-bidi-font-size:12.0pt;font-family:Verdana; mso-bidi-font-family:"Courier New TUR"'>

“Every citizen has a right to inspect= and take a copy of any public writing of this state, except as otherwise expres= sly provided by statute.” .= ..

Removal of Case File from Clerk's Office

= &s= ect;12-20-24. Removal of Court Records or Papers.

No records or papers of any court shall be removed out of the county, except in cases of invasion or insurrection whereby the same may be endangered, unles= s by order of the court; provided, that any noncurrent records or papers may be deposited in the department of archives and history at the discretion of the judge or clerk of said court.

Ru= le 4 ARJA (E)   &nb= sp;           &nbs= p;

           = ;        The clerk shall be the custodian of court records and shall keep such records of the court as are required by ordinance or other law, the municipal governing body, the judge, Supreme Court rule, or the ADC. The clerk shall prepare and issue all repor= ts and other documents, including monthly reports, that are required by law, r= ule, court order, or directive of the ADC.

=

30 ARJA         &= nbsp;           &nbs= p;

R= ULE 30 ARJA Amendments (effective 11/2006)

<= o:p>

A.        Copy defined: The term ‘copy’ to include court records in an any format (including electronic form) that are reproduced by photocopy, by electronic printing, by electronic transmittal (email), or by any other means.

B.=         Requests for copies: The clerk can require that they be made in writing.

C.=         Copy fees: The ADC establishes the rate for copies. The current rat= e is $5.00 for 1 to 20 pages, and 50 cents for each additional page. =

1.=          Complimentary copies: The language of the Rule compels the clerk, within his = or her discretion, to offer complimentary copies to parties to the action, representatives of businesses that are named parties to the action, attorne= ys representing named parties to the action, and governmental entities. =

a.         ‘In the clerk’s discretion’ – This= gives the clerk some flexibility in the event one of the aforementioned group mak= es a request that the clerk determines simply can’t be fulfilled free of charge. AOC recommends that each office establish a cutoff point of 50 pages. At that point, the burden should shift to the requester to show why the copies should be provided to him or her free of charge. This provision does not serve to allow the clerk to determine his or her own rat= e to charge the aforementioned groups.

          &n= bsp; D.     &= nbsp; Certified copies

1.=        Rate: The ADC has set the rate for certification of copies at $5.00. This fee is exclusive of any other = copy fees.

2.=          Electronic certification: <= span style=3D'font-size:9.0pt;mso-bidi-font-size:11.0pt;mso-bidi-font-family:Ari= al; color:black'>The clerk is permitted to affix an electronic signature and an electronic seal to certify a record.

E.=          Background checks: The clerk can opt to charge for performing case history backgr= ound checks. The clerk can also opt not to charge or not to perform backgr= ound checks.

1.=          Computer search: The clerk can charge $10.00 per search on SJIS, AlaCourt.com, = or any other AJS maintained application to compile a criminal and/or case hist= ory on an individual.

2.=        Paper record search: If a requester wants a more complete and/or detailed search of an individual’s case history, they= can request the clerk to search through paper case files. The clerk can charge $20.00 per individual searched.

F.=          Archival record search: Charging a fee for this type of search is optional, but we don’t recommend suspending archival searches. Continue to perfo= rm them, even if you do not want to require a fee.

1.=          Fee: A search = that requires the clerk to pursue records in closed case files, on microfilm, in registries, or in any other archived format can require a $25.00 fee.<= /o:p>

G.=         No fee required for pulling a case file: Neither of the searches outl= ined in Paragraphs E & F above should be interpreted as allowing the clerk to charge a fee for simply pulling a case file or locating a record within an = open case file. These fees were established to allow the clerk to get some recompense for performing duties outside of those established by law and/or duties that are tremendously laborious (i.e., hunting down 20 year old records).

H.=         Electronic Signatures: T= he rule officially authorizes the use of electronic signatures in the court system. It applies to all case types, although there is no official system in place to allow e-signatures in cases outside of civil and traffic= .

Youthful Offenders

§15-19-7:

&nb= sp;            =             &nb= sp; "(b) The fingerprints and photographs and other records of a person adjudged a youthful offender shall not be open to public inspection; provided, however, that the court may, in its discretion, permit the inspection of papers or records."   =

Except for Juveniles or Youthful Offenders charged and adjudicated for Felony DUI, juveniles or YO adjudications for t= raffic offenses shall be reported by submitting the UTTC (the Uniform Traffic Tick= et and Complaint) to the Department of Public Safety (DPS) (as opposed to reporting these adjudications on Form UTC-19, which is used for reporting non-traffic offenses which require a drivers license suspension by DPS).

Mandatory License suspensions for Non-traffic offenses:

§ 13A-12-290. License suspend= ed for six months.

In addition to any other penalty provided by law, the Departme= nt of Public Safety shall suspend for a period of six months the driver's lice= nse of any person, including, but not limited to, a juvenile, child, or youthful offender, convicted or adjudicated of, or subjected to a finding of delinqu= ency based on, the crimes specified in S= ection 13A-12-291. If, at the time of conviction, adjudication, or find= ing of delinquency, the individual did not have a driver's license or the drive= r's license had been suspended or revoked, there shall be a delay in the issuan= ce or reinstatement of the driver's license for six months after the individual applies for issuance or reinstatement.

(A= cts1993,No.93-352,§1.)

§ 13A-12-291. Specific crimes warranting suspension of driver's license.

A driver's license shall be suspended pursuant to S= ection 13A-12-290 for conviction of, adjudication of, or a finding of delinquency based on, the following crimes:

(1) Criminal solicitation to commit a controlled substance crime under Section 13A-12-202<= /a>.

(2) Attempt to commit a controlled substance crime under Section 13A-12-203<= /a>.

(3) Criminal conspiracy to commit a controlled substance crime under Section 13A-12-204<= /a>.

(4) Unlawful distribution of controlled substances under Section 13A-12-211<= /a>.

(5) Unlawful possession or receipt of controlled substances under Section 13A-12-212<= /a>.

(6) Unlawful possession of marihuana in the first degr= ee under Section 13A-12-213<= /a>.

(7) Unlawful possession of marihuana in the second deg= ree under Section 13A-12-214<= /a>.

(8) Sale<= /st1:place> or furnishing of controlled substances by persons over age 18 to persons un= der age 18 under Section 13A-12-215<= /a>.

(9) Trafficking in specified substances under Section 13A-12-231<= /a>.

(10) Driving under the influence of a controlled substance, or under the combined influence of a controlled substance and alcohol under Sections 32- 5A-191(a)(3)<= /span> and 32-5A-191(a)(4)= .

(A= cts1993,No.93-352,§2.)

=

<= span style=3D'font-size:10.0pt;mso-bidi-font-size:12.0pt;font-family:Verdana; mso-bidi-font-family:Helvetica'>These records shall, however, remain confidential records, not subject to public disclosure, when a Youthful Offender adjudication is involved.

SUMMARIES OF OPINIONS OF THE ATTORNEY GENER= AL REGARDING PUBLIC RECORDS

ARREST & SEARCH WARRANTS - Opinion 90-6= 7, dated 12-7-89:

Copies of unexecuted arrest warrants and supporting affidavits are not considered to be court records subject to pub= lic disclosure, regardless of where they are filed. An arrest warrant and supporting affidavits become a matter of public record only after the arrest warrant h= as been executed.

There does not appear to be a requirement by statute or rule which would require the court clerk to retain a copy of the arrest warrant and complaint in his or her office pending execution of the warrant.

Search warrants and supporting affidavits should be filed in the court clerk's office after the search warrant has be= en executed. There is no require= ment that unexecuted search warrants and supporting affidavits be filed in the c= ourt clerk's office. Where a search warrant is issued and executed prior to a defendant's arrest, these documen= ts should be filed in the court clerk's office, regardless of whether incrimin= ating evidence was discovered during the search.

Absent a court order to the contrary, an executed search warrant which has been filed in the court clerk's office is= a public record. Whether a sear= ch warrant which has resulted in an unfruitful search and no arrest should be = kept confidential is an issue of fact to be resolved by the trial judge on a case-by-case basis.

ARREST & SEARCH WARRANTS - Opinion 85-1= 3, dated 10-10-84:

Executed search warrants and arrest warrants are public records. The searc= h warrant and accompanying affidavit should be filed in the clerk's office after they= are executed and returned.