Being Released On Your Own Recognizance After An Arrest

Being released on your own recognizance, or OR, means that you need not post bail or a bond in order to be released from custody following an arrest¹.

Persons charged with non-violent misdemeanors or low level offenses are often released OR.

Bail generally is required by the court for a felony matter, whether it is violent or not.

If you are released at the jail or court, you generally have to sign a promise to appear before being released OR.

The agreement sets forth your understanding of what you are expected to do and what happens if you fail to appear, including:

Note: Senate Bill 10 which goes into effect October 1, 2019 will completely change the cash bail system as its currently constructed.

The new system will provide much greater discretion to judges in providing release to defendants.

The Difference Between Misdemeanors and Felonies

Crimes are generally classified as either felonies or misdemeanors.

Infractions are not considered criminal offenses and include parking violations, motor vehicle equipment violations or disturbing the peace in some circumstances.

The main difference between felonies and misdemeanors is the severity of the conduct and the sentence imposed.

Generally, violent crimes, most drug offenses, substantial financial and property violations as well as most sex crimes are felonies.

Examples Of Felonies

• Penal Code 211 pc – Robbery
• Penal Code 207 pc – Kidnapping
• Penal Code 187 pc – Murder
• Penal code 191.5 pc – vehicular Manslaughter while intoxicated
• 4^th DUI in 10 years or DUI with a fatality or serious bodily injury to victim(s)
• Sexual assault
• Penal Code 487 pc – Grand theft (value of item stolen is more than $950 or is a car or a firearm)
• Gun crimes
• HS 11351 – Sale of controlled substances or intent to sell

Examples Of Misdemeanors

• Misdemeanor DUI under vehicle code 23152(a)
• Vehicle Code 243(e)(1) vc – Domestic battery
• Vehicle Code 14601 vc – Driving on a suspended license
• Driving with no insurance
• Simple assault – penal code 240 pc
• Penal Code 484 pc – Petty theft (value of item stolen under $950)
• Penal Code 647(b) pc – prostitution or solicitation

California also has “wobbler” offenses where the prosecution determines, based on the circumstances of the offense, the defendant’s criminal history and harm to the victim, whether to charge the defendant with either a felony or misdemeanor.

These include:

• Penal Code 459 pc – Burglary
• Fraud crimes
• Spousal battery
• Penal Code 245(a)91) pc – Assault with a deadly weapon
• Some sex crimes

In the context of being released by the court with or without bail, most misdemeanor defendants are released OR if they have no outstanding warrants and most felony defendants are not.

For example, a first-time DUI offender will rarely be required to post bail or a bond.

All California counties have bail schedules pertaining to particular offenses, with the majority of them felonies.

A criminal defense lawyer can request a bail hearing at or after the arraignment to argue for reduced bail or that the defendant be released OR depending on mitigating circumstances of the case and other factors.

Generally, the defendant must not constitute a flight risk, have no criminal history, and have substantial connections in the community.

How do Judges Decide to Release You on Your Own Recognizance?

Judges have discretion in setting bail or in allowing defendants to be released with no bail with a promise to return to court and to make all required future court appearances.

Their discretion exists even if the county bail schedule lists the bail amount for the offense for which the defendant has been charged or arrested.

In deciding whether to release you on your own recognizance, the court will generally look at the following criteria:

• Is this your first criminal offense
• How serious is the charge
• Your age and health
• Was the victim injured or threatened with physical harm
• Are you a risk to public safety
• Are you employed
• Do you have family in the community
• How long have you have lived in the community
• Are you indigent and cannot afford bail or a bond
• What is the position of the prosecution on OR

If you or your attorney request that your bail be lowered or that you be released OR, the court might appoint an OR or bail officer to conduct a background check to review and report on the factors listed above.

There are certain offenses that will require a hearing to determine if OR will be granted. These include:

1) Any offense committed while you were on felony probation

2) You failed to appear in court at least 3 times in the past 3 years for:

• Any felony offense
• A street gang offense
• Assault and battery
• Theft
• Gun crime
• Certain domestic violence offenses
• Violation of certain protective orders

Should you have committed a violent felony and willfully failed to make even one court appearance on a previous felony matter, California law prohibits you from being released OR.

Some courts are using bail algorithms that employ statistics to ascertain your risk of breaking the law or not appearing in court.

The method depends on the factors that are considered such as a history of drug abuse, employment status, age and others.

A judge, however, retains discretion to ignore the results and set bail at the scheduled level, to raise or lower it, or release you OR.

Violating Conditions of O.R.

The conditions of OR are usually simple–promise to appear in court for all future court dates. Occasionally, the court might impose certain conditions such as no  victim contact, no drinking and driving, submission to random drug tests, that you not leave the state without court permission or that you participate in a drug rehabilitation program.

If you did not sign with the court or jail a written promise to appear as a condition of OR, you still have to make your court appearances.

You have a grace period, however, of 14 days within the time of your court date to contact the court to schedule an appearance and explain why you failed to appear or you are considered to have willfully evaded court.

If you fail to appear in court then a bench warrant will be issued for your arrest.

If the judge did impose conditions for releasing you on your own recognizance or OR and you violate one of them, such as failing to enter a rehabilitation facility or contacting the victim, the court can also issue a bench warrant for your arrest.

If your underlying charge was a misdemeanor, your willful failure to appear or for violating a condition of your release constitutes a misdemeanor.

The penalties are up to one year in county jail and a maximum fine or $1000.

Should your original charge be a felony, then you face an additional felony charge for your failure to appear. The penalties are up to 3 years in state prison and a fine of up to $5000.

1. 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. [↩]