BAIL
Bail allows a defendant to be released from actual custody on the basis of a surety bond given to procure the defendant’s release and which acts as an assurance that the defendant will appear for the next court date and beyond.
Who is entitled to Bail?
Before a person is convicted of a crime Bail is a matter of right unless the offense is punishable by death, or a public safety exception is established. The public safety exception only applies to certain felonies outlined in Penal Code § 292.
What Factors are Considered in Determining Bail?
Under Article I § 12 of the California Constitution, the court can deny bail in felony cases in which either:
a) The defendant inflicted “acts of violence” on another person, and the court finds, based on clear and convincing evidence that there is a substantial likelihood that the person’s release would result in great bodily harm to others; or
b) The Court finds by clear and convincing evidence that the defendant has threatened another bodily great harm and there is a substantial likelihood that the defendant would carry out the threat if released; or
c) The defendant is charged with a capital crime.
There are several additional factors that the Court considers in setting bail. Public Safety is always the primary concern, but the Court will also look at the seriousness of the offense including the alleged injury, threats, and/or use of a weapon or firearm. In addition to looking at the circumstances of the offense, the Court will also consider factors related to the likelihood of the defendant making future appearances. Some of the common areas of inquiry are: Does the defendant have ties to the community? Does the defendant and/or his family live in the community? Is the defendant locally employed or enrolled in school? Does the defendant own property in the community? What is the value of the bond to the defendant? Does the defendant have a prior record f failing to appear?
How Long Does Bail Last?
Once Bail is posted it stands until it is forfeited which happens when the defendant does not appear in Court on a scheduled day, or exonerated. If bail was posted through a bail bond agency, the agent and defendant sign a bail agreement that usually fixes the term of the bail bond as one year and the defendant usually has to pay a renewal premium for any additional years.
How is the amount of Bail determined?
Superior Court judges are responsible for adopting a Countywide bail schedule for all bailable felony offenses and for all misdemeanors and infractions that are not vehicle code violations. The schedules usually list the offense by the code section and description, then indicate the recommended amount of bail for each offense. Bail is initially set by the magistrate at the first court appearance. If an OR or bail reduction is not granted on the arraignment date, a bail review hearing can be set.
California Constitution Article I § 12(c) prohibits excessive bail; however, bail will not be considered excessive just because the defendant is unable to afford posting the amount fixed. The reasonability of the bail amount fixed will be determined by the bail schedule as well as the circumstances of the crime and the worth of the bond to the defendant.
What happens at a Bail Review?
A motion to reduce bail must be made within three days of the arraignment. In determining whether to reduce bail the courts look at several different factors: Are you at flight risk? Meaning is there reason to believe that you will leave and fail to appear in court in the future. Are you a danger? Meaning is the crime you have committed a violent crime, do you have priors for violent crimes, and are there other reasons to believe that you are a danger to the community if released. Do you have ties to the community? Meaning do you have family and friends in the area, a job, enrolled in school, how long have you lived in or around the County, etc. The Court will consider these factors and others in deciding whether to reduce your bail. If a reduction is granted that does not mean that no bail will be required usually this is exactly what it says only a reduction. The defendant will still be required to post 10% of the bail set in order to be released.
How do I post Bail?
Bail can be posted by contacting a local bail bondsman or agency. Most agencies require a 10% in to have the bond posted. For example if you were arrested for grand theft and your bail amount was $50,000, you would need to give the bail bondsman $5000 to post the bond and get you out of custody. The money you pay the bail agency for your release is not refundable even if your case is later dismissed.
Sometimes posting bail is not the best idea. Often defendants are likely to get OR release if they wait to see a Judge. Although sitting in custody is tough, having patience and seeing a Judge before making decisions can save you thousands of dollars. Don’t call a bail bondsman and get released or bail out your loved one without first contacting a Criminal Defense Attorney. Our offices give free consultations that could save you thousands on bail and beyond. Don’t be fooled by the system, contact an Attorney with the experience to guide you in the right direction.
