Bail refers to funds deposited by a defendant or third person that is designed to ensure that the accused will make all future court appearances. It can be in cash or in the form of a bond secured from a bail bondsman. Bail is not imposed on every criminal offense, however, and it largely depends on the nature and severity of the offense. The amount of bail may be a set amount that may be lowered or increased by a judge depending on the circumstances of the offense and the character of the defendant.
Note: On October 1, 2019 the bail system in California is scheduled to dramatically change with the passage of Senate Bill 10. The bill provides for the elimination of cash bail and for it to be replaced by a system of judicial discretion for felonies while no misdemeanors will require bail.
Each California county has a local bail schedule1 for certain types of offenses. Once you are arrested, a loved one can review the bail schedule, or ask a bail bondsman to do so, to determine the amount. If the offense is one that is relatively minor, such as a DUI with no accident injuries or substantial property damage, then the jail will generally release the person after booking with no bail.
If your offense is on the bail schedule, then the jail will require that that amount be paid or a bond posted. An arresting officer can request that bail be set an amount that is more than the bail schedule indicates. At the arraignment, which is your first court appearance after your arrest, the judge will either continue the bail or modify it at an amount deemed consistent with the circumstances of the case. Your defense attorney can request a hearing on your bail within 2 days after your arraignment to challenge it.
At the bail hearing, the court can leave the bail amount as is, increase it, decrease it or release you OR or on your own recognizance.
If you are seeking to reduce your bail amount or the prosecution wants to increase it, there are a number of factors the court will consider:
- How serious is the offense?2
- Was anyone injured and if so, how serious are the injuries?3
- Were threats allegedly made to the victim?4
- Were weapons or drugs involved?5
- Are you a threat to public safety?6
- Are you employed and have connections in the community such as property or business interests?
- Any criminal history?
- Likelihood of appearing for all future court appearances ((Same as Penal Code 1275(a)(1))
If you are charged with a serious offense such as homicide, kidnapping, robbery or sexual assault, then the court may not modify bail without first finding unusual circumstances as justification7. These can include:
- A change in the facts of the case
- Discovery of evidence that is incriminating or exclupatory
- Prosecution witnesses have disappeared or will not cooperate
- You have become gravely ill
- You are found with a large amount of cash and a one-way ticket to another state or country
The court also has discretion to totally deny bail in your case. This may occur when another jurisdiction has an arrest warrant or a hold on you or you commit another crime while out on bail. If you violated parole or probation, bail will not be set in most cases.
If your case is not serious, you have substantial community ties or the evidence is tenuous, then the court can release you OR. You may not be released if the court is persuaded or feels that you do pose a risk to public safety or you are a substantial flight risk and bail will not ensure that you will attend future court appearances8.
If bail is set at a reduced amount or you are released OR, the court can impose conditions. Your defense attorney can also suggest conditions if trying to convince a judge to set bail or to decrease it. .
There are routine conditions that may be placed on you in return for releasing you OR or for reducing your bail. Others may be more applicable to your case. Conditions may include:
- Placing you under house arrest with electronic monitoring
- Requiring you to wear a SCRAM or Secure Continuous Remote Alcohol Monitor
- Surrendering your passport and driver’s license
- Not allowing you to leave the state
- Having no contact with the victim
- No drinking and driving with any degree of alcohol in your system
Courts and the jails will accept cash as bail. Certified or cashier’s checks or traveller’s checks are acceptable as well. Most people will post a bond secured from a bondsman or a property bond in some cases.
The easiest way of posting bail is to pay the full cash amount. If the bail is a low figure such as $500 or $1500, then this may be advisable. The funds are returned to the defendant once the proceedings are over and the defendant has not forfeited the bail by failing to appear for a court date or by violating a condition of bail.
Paying the full bail amount may also be done by producing a certified or cashier’s check, money order or traveler’s checks. A court clerk or the arresting agency may accept a personal check in some cases.
There are circumstances where a court will not accept bail if the origin of the funds is suspect such as emanating from a criminal enterprise, especially if a large amount of cash is deposited. If you are charged with embezzlement of a substantial amount or with drug trafficking for example and you or a friend posts cash bail of $100,000 or more, the court may be suspicious of the fund’s origin. You have the burden of proving that the source of the funds is legitimate. If not, the court can refuse to accept the cash. For this reason, it is best to secure a bond and avoid this scenario.
The most prevalent method of posting bail is by obtaining a bond through a licensed bail bondsman since bail can be in the tens of thousands of dollars or more. You pay the bondsman up to 10% of the bail amount so that if a defendant has bail set at $50,000, you can buy or secure a bond for $5000. After paying the bond amount, the bondsman will deliver it to the court to secure the defendant’s release. The premium paid to the bondsman is non-refundable.
You may also have to put up collateral when securing a bond, particularly if the bail is substantial. This is usually real property since personal property can disappear. It is also rare for personal property to have substantial value unless it is a valuable painting or a collection of rare items.
Should you fail to make a court appearance and the court forfeits your bail, the bond company may seek to sell your collateral.
Most bail is posted by someone other than the defendant. You can co-sign for a bond with the bond company but you do have certain obligations if you do so. Should the defendant flee the jurisdiction or simply not appear at the next date, the bond company will first attempt to find the defendant. If the person cannot be located, the bond company will look to you for payment.
Property bonds are rarely used .They are actually liens that a court secures on your real property or on valuable personal property.
Failing to appear in court can be a serious offense. If your underlying charge was a misdemeanor, your failure to appear is a misdemeanor. If a felony, you risk being charged with another felony for your failure to appear. In both cases, the court will issue a bench warrant for your arrest. This is true whether you were required to post bail or not.
If you posted a cash bail, you risk forfeiting the entire amount to the court. The same is true for a bond although the bond company is on the hook for the entire amount of the bond.
If you put up collateral for the bond, the bond company can sell it to collect the amount it has to forfeit to the court. If there is no collateral, the bond company may use a bounty hunter to look for the defendant. Bounty hunters are paid a percentage of the bond but only if the defendant is apprehended. They have authority to arrest the individual and return him or her to the authorities in the jurisdiction from which the defendant fled. There is a time limit to return the defendant or the bond company must pay the entire amount secured by the bond.
A court, however, can vacate its order for forfeiture and exonerate the bond if the defendant appears within 180 days of the bail forfeiture date and there is a valid excuse. These include:
- An illness with a medical report or statement to corroborate it
- You are disabled or became disabled and could not attend
- You were in custody in another jurisdiction
- You suffer from mental illness
Failing to appear has serious criminal and financial consequences. It can carry over as well in subsequent court cases after the current one is concluded and you are arrested again by providing an excuse for the court to deny or to increase your bail.
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- California Penal Code 1269b(c) – It is the duty of the superior court judges in each county to prepare, adopt, and annually revise a uniform countywide schedule of bail for all bailable felony offenses and for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council in accordance with Section 40310 of the Vehicle Code. [↩]
- California Penal Code 1275(a)(1) – In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as the information included in a report prepared in accordance with Section 1318.1. [↩]
- California Penal Code 1275(a)(2) – In considering the seriousness of the offense charged, a judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. [↩]
- Id. [↩]
- Id. [↩]
- Same as Penal Code 1275(a)(1 [↩]
- California Penal Code 1275(c) – Before a court reduces bail to below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, “unusual circumstances” does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses. [↩]
- California Penal Code 1270(a) - Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set bail and specify the conditions, if any, whereunder the defendant shall be released. [↩]