WHO IS ENTITLED TO BAIL?
Generally speaking, most cases will qualify for bail. Two major exceptions exist. First, juveniles are not entitled to bail. Only a juvenile court judge can order the release of a juvenile from custody. Second, bail can be denied in death cases or other felony cases if certain “public safety” factors are established. For example, bail can be denied if the arrested person inflicted an “act of violence” on another person and, if released, the arrested person might inflict great bodily harm to that other person. Similarly, if the arrested person threatened someone with great bodily harm and might carry out the threat if released, bail can be denied.
WHAT ABOUT HOLDS?
If a person is currently on probation and is arrested on a probation violation, a “no bail hold” can be placed on that person. If a person is taken into custody for a new crime and that person’s probationary status has not been discovered, it is possible to bail that person out of custody. However, be aware that if a violation of probation proceeding is started, that person could be taken into custody simply on the alleged violation of probation without any bail being set. If the arrested person does not have legal status in the country, it is possible that s/he will ultimately get an immigration hold. If so, that person will not be able to be bailed out of custody. Sometimes people will bail their undocumented family members out of custody as quickly as possible because at least if immigration catches up with them, there is a possibility of defending against the immigration proceeding on an out-of-custody basis.
DOES IT MAKE SENSE TO BAIL MY LOVED ONE OUT OF CUSTODY?
You should consider several factors before deciding on bail. First, if the crime is not very serious and your loved one does not have a long criminal history, the jail facility may decide to release an arrested person on what is called an “OR” agreement (own recognizance release). An “OR” agreement is a promise by the person to appear at all future court dates. The jail may also place other conditions on an “OR” release (for example, attend weekly NA/AA meetings or no traveling outside the state). If released “OR,” the arrested person does not need to post any money to get released. With overcrowding and the likelihood that so many more people convicted of felonies will start serving time in county jail instead of prison, it seems possible that more people may be released from custody on “OR” agreements than before. Additionally, jails may consider releasing people who have not yet been convicted on electronic monitoring (aka ankle bracelets). This would be instead of requiring those people to bail out to get out of custody.
Second, if the amount of bail is high, it may make sense to have a bail/OR hearing before bailing anyone out of custody. This would be a hearing in front of judge to determine whether the person should be released “OR” or should at least have bail lowered. If you decide to bail someone out of custody, you do not later ask for a bail/OR hearing to try to get your money back. It may take a couple of days to have the bail/OR hearing, so you need to be patient. It is important to present facts about the arrested person’s ties to the community, lack of criminal record (if applicable), and lack of danger to the community at these hearings.
Third, be aware that if you bail someone out of custody prior to their first court date, the amount of bail may change depending on what crimes the arrested person ultimately faces. For example, if the police arrest someone on the belief that s/he only committed one crime, the bail will be set based on that assumption. If it turns out that the District Attorney’s Office files additional or more serious charges, their office can ask for increased bail. If the Court raises the bail and you do not have the ability to post the additional bail, the person will be taken back into custody.
Fourth, you need to consider the charges the arrested person is facing. If there is a likelihood that the person will face significant custody time as a result of the case, it may not make sense to bail the person out of custody. These are tough decisions to make, and consulting with an experienced attorney like San Bernardino criminal defense attorney Marcie Gardner makes good sense.
HOW TO BAIL SOMEONE OUT OF CUSTODY
If bail is set, there are three ways to get someone out of custody.
First, you can post the full amount of the bail. You do not need a bail agent to help you with this, because you are posting the full amount of the bail. If the person bailed out makes all court appearances, the full amount of the bail will be returned to you when the case is finished.
Second, you can use a bail agent. This company is financially responsible for the full amount of the bail. To post it on behalf of the arrested person, the company will require you to pay anywhere between 8-10% of the total bail amount. You can get an 8% rate under certain circumstances (such as through an attorney referral or through a negotiated union benefit). If you do not qualify for a lower rate, a bail company will charge you 10% of the total bail amount. The bail company might permit you to make payments towards that total amount depending on your finances and sources of collateral.
Third, you can use real property which you own in California to secure someone’s release. This is a cumbersome process which takes at least 2-3 weeks to accomplish. If you have at least twice the amount of bail available in free equity in real property, you can sign documents which allow your property to be sold in the event the person does not make all his/her court appearances. The County has a lien on your property during the criminal case. Once the criminal case is over, you have the Court sign paperwork relinquishing its rights to your property. You do not have to pay the Court for this process, but it does cost several hundred dollars in fees to third parties (for services like recording official documents and getting current appraisals).
If you have questions about getting someone released from custody, please contact experienced San Bernardino criminal defense attorney Marcie Gardner. Your initial consultation is always free of charge. No fee whatsoever.
Please call today. 909-635-2047.