Follow these links for answers to your questions about bail:
- What is bail?
- What is a bond?
- What has to happen before I can be bailed out?
- How do I get bailed out?
- What are some ways to reduce the amount a bail bondsman will charge?
- Will I have to pay the entire ten percent to the bail agent up front?
- What happens if the defendant posts bail and then fails to appear?
- What kind of forms will I need to fill out to hire a bail bondsman?
- What is an indemnification?
- What is a co-signer?
- How is the amount of bail set?
- Am I stuck with the bail schedule?
- What is the one sure-fire way to get a request for bail reduction denied?
- What other serious mistakes can a defendant make at a bail reduction hearing?
- What factors are taken into consideration when a Judge decides whether or not to lower bail?
- What are some of the "good facts" that the judge will consider (if known) in setting bail?
- They say I'm not eligible for bail. Why is that?
- What is a 1275 Hearing?
- Why might I not want to bail out?
Bail refers to money that is given to the Court to hold until a case ends. When the Court receives this money, it will release the defendant so that they can remain at liberty as the trial progresses, rather than have to spend that entire time in the County Jail.
If the defendant makes all of their Court appearances, whomever posted the bail will get that money given back to them when the case ends. A case ends when the defendant is either acquitted, or when the defendant is sentenced.
For our purposes, a bond is something that is given to ensure the completion of a promise. When the promise is kept, the bond is returned. You may have heard it said of a particularly trustworthy person that "Their word is their bond." What this means is that the person is staking their reputation for telling the truth on their promise, and that no other insurance is considered necessary. Sadly, in most criminal cases, the judge will not allow the defendant's word to be their bond, and will instead require bail.
NOTE: When a specific object is given as the bond for the promise of repayment of a debt, this is generally referred to as "collateral."
After a person is arrested, they are taken to the Sheriff's department to be "booked" into the County Jail. The "Booking" process (literally meaning the process to put the defendant "in the books" of the jail, or more modernly, into the computer system) takes anywhere from less than an hour, to several hours, depending on when and where a person is arrested and booked. The booking process involves taking a picture of the defendant, fingerprinting them, and then running a background check to see if the defendant has any outstanding warrants. Assuming that the defendant does not have any outstanding warrants, and that they have been arrested for something other than a serious and violent felony, they will immediately become eligible to be bailed out according to the County Bail Schedule (more on this below). Once booked in the defendant will be allowed to make a phone call.
There are two ways to "make bail." If someone, be it the defendant, or the friends and family of the defendant, is willing and able to give the Court the entire amount of bail to hold until the end of the case they can do so and the defendant will be released. This is very rare. It is much more common for the defendant to need to employ a Bail Bondsman.
A Bail Bondsman, in exchange for a fee and often the attachment of collateral, will post bail for the defendant. A Bail Bondsman in essence issues a large, albeit relatively short term, loan to the defendant and/or his friends and family. Typically the Bail Bondsman will charge a fee of ten percent (10%) of the total bail amount. This money is paid to the bondsman in exchange for the loan.
If the defendant "jumps bond" or fails to appear as scheduled for their Court appearance the Bail Bondsman is given a certain amount of time to find the defendant and bring them in before the Bail Bondsman's investment is forfeited to the Court. This encourages the Bail Bondsman to use private detectives who, under the law, are given the power to arrest Bail Jumpers and bring them to the Court. These private detectives are often referred to as "Bounty Hunters," though this name has not been accurate for some time in the United States.
A NOTE ON COLLATERAL: Collateral refers to something of value that a person gives to the Bondsman to hold onto until the Bondsman gets his bond back from the Court at the end of the case. Typically this is the deed to some property owned by the defendant, or the friends and family of the defendant. If the defendant then fails to appear, and the bond is forfeited, the bondsman will keep the collateral as payment for the loss of the bond.
- Hire an Attorney – Many Bond agencies will give up to a 20 percent reduction off of their rates to a person who has a private Criminal Defense Attorney representing them. The existence of a private attorney shows that the defendant is stable and is unlikely to jump bond.
- Posting collateral like a home – If the Bond Company can get someone to offer collateral like a home to secure the bond, they will lower the amount that they charge.
- What does this mean? Say that the bond is $100,000 and say, for example, that the defendant's Grandpa Joe is willing to list his home for collateral on the bond. The Bail Bondsman may be willing to reduce the amount they charge. The reason for this is simple. If the defendant jumps bond, and the court takes the $100,000 that the Bail Bondsman has posted away from him, the Bail Agent will promptly foreclose on Grandpa Joe's house to pay back the amount lost.
Maybe not. The Bail Agent wants to make a sale, but the Bail Agent also wants to minimize his own risk. The answer to the question of whether, and what type, of payment plan will be available to you depends on a number of factors including:
- Your credit rating.
- Your income.
- Your ability and willingness to post collateral.
In most cases you should be prepared to put down at least half of the payment to the Bail Agent before they will be willing to post Bond for the defendant. That means 5% of the total bail, or, in our $100,000.00 example, Five Thousand Dollars.
A NOTE ABOUT BOND EXPIRATION: Bail Bonds typically last only 1 year. The vast majority of criminal cases will resolve within that year, but not all. If your matter takes more than 1 year, you may need to contract with your bail agent to post a new bond.
Two things will happen if the defendant fails to appear in Court:
- The Court will put out a warrant for the arrest of the defendant.
- A 180 day countdown will begin until bail is forfeited.
What does this mean?
- In terms of the warrant it means that if the defendant comes into contact with law enforcement for any reason involving a warrant check (for example ANY traffic stop) they will be arrested. It is also possible that police will be sent to look for, and arrest the defendant.
- In terms of the countdown it means that if the defendant does not appear in Court within six months of the date of the failure to appear the court gets to keep the money that it was given to hold. This gives the person who posted the bond a strong incentive to bring the defendant back to court.
- Financial Disclosure
The Bondsman is going to want to know that you are able to pay them back, and for this reason will ask for your financial records. This may include requests from a copy of your latest paycheck, to a copy of your most recent tax returns, to a written breakdown of all of your assets and debts and a summary of your current spending habits.
After looking at your financial disclosure, and determining that they are willing to contract with you to post the bond that you want, the Bail Bondsman will have you sign a contract. The contract will include terms such as:
- That you make payment on scheduled dates.
- That you keep in contact with the defendant and inform the Bail Bondsman of the defendant's whereabouts it requested.
- That you sign an Indemnification.
For our purpose here, indemnification means that the person contracting with the Bail Bondsman (and anyone required to co-sign) is saying that if the Bail Bondsman loses any money, as a result of this contract, (whether it be the necessity to send Private Detectives to look for the defendant, or to pay the Court because the defendant has failed to appear etc.) that they will pay that money back to the Bail Bondsman. The result of all of this is to put the negative results of the defendant's failure to appear, not on Bail Bondsman, but on the defendant, and his friends and family.
Four our purpose here, a co-signer is a second person who also assumes the duties of the contract, including the indemnification.
Each County has its own Bail Schedule that lists the amount of money that needs to be posted in order to be bailed out after a person is arrested. Different amounts are set for each possible criminal charge.
The Tulare County Bail Schedule can be found at:
The King's County Bail Schedule can be found at:
Not necessarily. The Bail Schedule is used to determine the bail at the time of arrest, and will stay in effect until at least the first Court appearance. At the first Court appearance, the Judge may decide to keep the bail set according to the schedule, or to either raise it (usually at the request of the District Attorney's Office) or lower it (at the request of the defendant or the defendant's attorney).
The one guaranteed way to get a request for a bail reduction denied is for a defendant simply to make the request and then not say anything else. I have seen this happen a discouraging number of times while in Court defending my better prepared clients. The defendant's case will be called for arraignment, he or she will come up to the podium, they will enter a plea of not guilty, and then they will ask the judge "Can I get an O.R.?" What is going through the mind of such a person is a mystery to me. Why in the WORLD they believe such a request would be granted without giving the judge the slightest reason to do so I can't imagine. The Judge is not going to look for reasons to lower the defendant's bail. If he even opens the file in response to such a request it will only be to glance at the defendant's history, to see if he wants to raise bail, and to check that the defendant's bail is set according to the bail schedule before denying the request.
A twin to this failed non-strategy is the defendant who asks the Judge to let them out of custody loudly and confidently proclaiming that they didn't do it, so they should be released. I understand where these defendants are coming from, and I sympathize. Being arrested and held in jail is one of the most traumatic experiences most people will ever face. Add to this the injustice of being arrested falsely, and it's almost too much to bear without making an outburst. The absolute and painful truth is, it isn't going to help. In setting bail, the Judge is required, by law, to assume that the defendant is guilty of the crimes they are charged with. The judge at the arraignment is not going to read the police reports, he is not going to review the evidence against you, and he is not going to be swayed by anything you say about the weakness of the government's case. Every judge in this situation, EVERY ONE OF THEM, will respond in the same way. They will tell the defendant that if they are innocent, they should take their case to trial, and that is why the Court system exists. They will then deny their request to lower bail and set the next Court date.
One of the most, if not THE most important reason to have an attorney represent a defendant at every Court appearance is that everything that is said in Court is written down by the Court reporter, and everything the defendant says "can and will be used against them." This is something else I have seen a disheartening number of times while appearing in Court with my better prepared clients: a defendant will get up and will be asking the Judge to lower their bail. In the process, they will begin discussing their case with the Judge because they think that if they can only explain to the Judge what happened that the Judge will release them. Not only does the Judge not release them, but while they are talking the defendant winds up confessing to facts that the prosecution probably would never have been able to prove had they remained silent. A defendant should never argue their own bail motion. They will always be best served by hiring a private defense attorney who will have the time and knowledge to make the best argument possible for them, but even if they must wait several days to have an overworked public defender make the argument, they are better served to do so than to attempt to make the argument themselves. There are simply too many pitfalls that a person without legal training can fall into when speaking in Court.
- The most important thing to know is that the California Constitution (Article 1, Section 12(c) gives each person accused of a crime the right to "reasonable bail." There is a complicated network of statutory and case law that has been written on the subject of what is "reasonable." If an argument can be made to the judge that the scheduled bail is not "reasonable" in your case, the judge will be compelled to lower bail to a "reasonable" amount. If you are able to hire an attorney to make this argument for you, you will have a much better chance of getting the Judge to reduce bail. I personally (Greg Hagopian, from the Law Office of Greg Hagopian) have extensive experience arguing these factors to judges, both as a prosecutor, and now as a champion for defendants accused of crimes.
- The two primary factors the judge will use in deciding the amount of "reasonable bail" are the danger the defendant will pose to society if released, and the likelihood that the defendant will fail to appear in the future if released.
- NOTE: There is an exception to the right to bail. Under article 12 section 1 of the California Constitution, if a person is accused of a crime punishable by the death penalty or a serious felony, and the likelihood of danger to the public is high, the court can refuse to set a bail, meaning the accused must remain in custody while the case progresses.
What are some of the "bad facts" that a judge will consider (if known) in setting bail:
1. Defendant On Probation And/Or Already On Bail:
If the defendant is on probation for another offense, or has another open criminal case, this is considered by most judges to be a very damaging fact, suggesting that bail should be raised above the normal schedule. The reasoning is obvious. It appears to the Court (in the absence of a good argument, by a good attorney, explaining to the contrary) that the defendant has been given a chance to stay out of trouble, and has thrown that chance away by continuing to commit crimes. Such a person, if admitted to bail at all, is likely to face an extreme upward deviation unless some mitigating factors can be explained to the judge. The presence of an attorney for such an argument could literally save the defendant/defendant's friends and family thousands of dollars.
2. Prior Record:
Prior Convictions, particularly for either violent offenses, or for the same offense that the defendant stands accused of, will suggest to most Judges that the defendant's bail should be raised, or at the very least not lowered. This goes to the Number 1 Factor mentioned above – Public Safety. What you need to understand is that in the State of California Judges must stand for election every six years. The nightmare of every Criminal Court Judge when setting bail is for them to reduce bail so that a defendant can be released, and then to have that defendant commit some heinous crime while out on bond. The Judge can almost see the attack adds explaining how they are "soft on crime" and allowed a "dangerous criminal back into the community to reoffend." Knowing this, if a defendant has an extensive criminal record, and expects any chance of their bail being lowered, they need an experienced attorney to allay the judge's fears to rest by explaining why this defendant really isn't a public threat. This is done by arguing all the "good facts" (below) that exist in the defendant's favor, while minimizing the "bad facts" by explaining what actually happened, and why many prior convictions are really not as bad as they appear.
3. High Profile Crime Charges:
There are some offenses which, unfortunately, have a tendency to capture public attention.
- Sex Crime charges, especially Child Molestation charges:
- Multiple Conviction DUI charges:
- Domestic Violence Charges:
- Crimes Against the Police, or other High Profile Victims.
There isn't anything about these charges that would justify an unusual unwillingness by Judges to lower bail, or an especially eager tendency to raise bail, but that is the fact of the matter, and you are going to have to deal with it somehow. Sometimes it just requires holding the judges feet to the fire by demanding a bail reduction hearing, presenting overwhelming evidence of the defendant's suitability to be released, and then demanding that the prosecution or the Court either present some rebuttal, or do what you ask under the law. The Judge doesn't want to lower bail in these cases. They prefer to keep as low a profile as possible, knowing that these cases will likely appear in the news. At the same time, they know they have a job to do. Sometimes my job as a lawyer is to make the man (or woman) in the black robe do their job as a Judge.
4. Prior Failure to Appear or Arrest on Old Warrant:
The death blow of many requests to lower bail is when the judge looks at the defendant's record and finds that they have been released from custody in the past and then failed to appear as scheduled. Under such circumstances, the Judge, understandably, has little faith that the defendant will not do the same thing if they are released this time. The same situation is found when a person is arrested on a warrant for failing to come to Court in the past. The instinct of most Judges in these situations is to raise bail to cover the increased risk of flight, or at the very least to deny any request to lower bail made without any context.
1. Prior Record:
Obviously the best case scenario is to have a defendant with no criminal record, who has never been arrested, and is facing criminal charges for the first time in their life. Under such a circumstance the judge is likely to find that the defendant poses a minimal risk to society. That doesn't mean that the judge will automatically lower their bail just because they ask, the Judge will not. It does mean, however, that they start out at less of a disadvantage.
What if the defendant does have a criminal record?
The defendant's attorney will need to minimize the damage by explaining how the prior record is not as bad as it appears, and how other factors are more important. For example:
The defendant may have serious felony priors on their record, but they may have pled guilty to those offenses as a result of a plea bargain (rather than a guilty verdict at trial) whereby they were sentenced to little or no time.
Or: The defendant has a record of convictions for violent offenses, or drug offenses, but the convictions are so old that they no longer accurately reflect the defendant's disposition TODAY to commit those crimes. By way of example, a person who has a litany of violent crime convictions from when they were in their teens and early 20's (when they were among the "Young and the Restless") probably has very little propensity to commit those crimes when they are in their 30's or 40's let alone their 50's or 60's. It is well known amongst criminal law professionals that tendency towards violence falls exponentially with age. Along the same lines, a person with a string of 5 to 10 year old drug convictions has almost certainly cleaned up their lives, or there would be more current convictions. Again, the priors don't indicate any current threat to society. Is the Judge likely to see this? No they are not. Without someone to argue the facts to the Judge, the Judge will glance at the rap sheet, notice there are priors, lump the defendant into the high risk category, and move on. The Judge is busy. He has 50 arraignments to do this morning and he is only going to give your case as much thought at your attorney makes him give it.
Criminal Court Judges are always happy to see a defendant who has a job, any kind of job. Because of experience with criminals day in and day out, their standards are low and you should play this to your advantage. Having a job means both that a person is responsible, and that they are contributing to society in some beneficial way. It also means that they are busy at least during working hours, and not out getting into trouble. If it is at all possible to have a supervisor write a short letter to the judge saying that they hope the Court will release the defendant so they can continue working, that often goes a long way to convincing a judge to lower bail.
Similarly, if the defendant has lived in the jurisdiction of the Court for many years, is a member of neighborhood organizations, and has a number of friends and family willing to come to Court to show support (more on this below), these things will go to show that the defendant has such strong ties to the community that he would never run away and not appear as scheduled in Court.
3. Dependents and Other Family:
Every Judge will tell you that they don't take into consideration whether or not the defendant has family that he or she is responsible for taking care of. Most of them are lying. If nothing else, showing the judge that the defendant has family members that they are responsible for (either financially or in some other way) shows that they are less likely to flee, because they have strong ties to the community.
Non-dependant family members can also make a big difference, particularly if they are willing to come to Court on the day of the Bail Reduction Hearing. Such family members can stand up and say to the Court (through the defendant's attorney who will ask each them to stand in turn and be recognized by the Judge) that they are willing to watch over the defendant, make sure that he doesn't get into any more trouble, and drive him to and from his Court dates. This is a particularly effective move with younger defendants who have large extended families who live in the area they are being charged in.
I'm giving away a bit of a trade secret here, but the coup de grace here is to the bring in the family members who will actually be posting bail for the defendant and to point them out to the judge, in the presence of the defendant. I had a case once in the City of Porterville where the defendant was charged with a series of gang offenses whereby his bail had been set at nearly three hundred thousand dollars. I brought in the defendant's grandfather, who was a WWII veteran, wearing his purple heart jacket. I had him stand up and explain that this man had a little more than $10,000.00 in savings and that he was willing to put up that money, and his home of 50 years as collateral to a bail bonds agent if his grandson could be released pending trial. I stood in front of the Court and I explained that the defendant might be a bad kid, who had made bad choices, but that he wasn't about to see his Grandpa put out in the street by failing to come back to Court. A ten minute ringing lecture from the Judge to the Defendant about what horrible things he would do to him if he did fail to appear later, bail was reduced by more than two thirds to $75,000.
4. Letters of Good Character.
One of the most effective means of convincing a Judge that a defendant is a good candidate for a reduction in bail is to flood the Court with letters of good character from friends, family, co-workers, etc. These letters should all say two things, surrounded by whatever other fluff about the defendant's actual good character the writer can think to say:1. I will personally see that the defendant has a ride to court and will come with him if necessary. And 2. I don't believe that the defendant is the kind of person who could have committed this crime, and he must be innocent.
I can hear the reader objecting: "WHAT? Didn't you just say that the Judge must assume that the defendant is guilty and that you can't legally argue otherwise?" Yes I did. And I meant it. But lawyers are often at their best when working in the murky between places of the law. As a lawyer I am not allowed to argue to the Judge in a motion to reduce bail that the defendant didn't do it. It isn't legally relevant because of a presumption that I am expected to understand and respect. But the writer of a letter of recommendation isn't expected to know the law. For the writer of a letter of recommendation to say that they don't believe the defendant is guilty is just another way of them saying that they don't think he is a danger to society, and that he will appear at all of his further court dates. If the judge also happens to be inundated with the message that the community is convinced of the defendant's innocence… well I just can't help that, and most judges can't ignore it.
5. Outside the Box Options:
Occasionally the Court will agree to release a defendant (or lower their bail to a level where they can secure their own release) if the defendant is willing to agree to certain terms in bargain. Some of the things I have seen successfully suggested to Courts include:
- The defendant will immediately begin Alcoholics Anonymous, or Narcotics Anonymous classes, or in more serious cases will immediately check into a residential treatment center. (In DUI and Drug Offence Cases)
- The defendant will agree to be placed under house arrest pending trial (this is used extensively in King's County but has, so far, not caught on in Tulare County).
- The defendant will give their license to the Court and agree not to drive a vehicle pending trial. (In DUI cases)
- The defendant will abstain from drinking pending trial. (In DUI cases)
- The defendant will move out of the victim's home, but continue to support the victim, pending trial. (In Domestic Violence Cases)
- The defendant will take anger management, parenting, or other classes as ordered by the Court. (Domestic Violence, Child Neglect, and Various Other Cases).
These agreements are to terms that are often similar or identical to those terms that would be imposed as conditions of probation if the defendant were to be convicted of the offense. The Judge will almost never suggest these terms as a condition of release and in some cases indeed might get in trouble with the Judicial Council were they to do so. If such terms are suggested by the defendant's attorney, however, they often go a long way towards convincing the judge to allow the defendant to be released.
A Note on When NOT To Request a Bail Reduction Hearing:
Occasionally, because of a variety of factors that any good attorney could spot, bail will be set below where it should be. When this happens, any defendant with the means to do so will be advised by any competent attorney to post bail immediately and get out while the "gettins good."
It is important to realize that bail is initially set by the Sheriff's Department when the person is booked into the County Jail, and that they sometimes make mistakes. Some of the reasons that might lead to bail set lower than it should be are:
- The Sheriff's department didn't realize that you have a strike prior, or some other very serious prior conviction that would lead any reviewing judge to raise your bail.
- The Sheriff's department didn't realize that you were on probation, parole, or already out on bail in another case:
- The arresting agency booked the defendant in on charges that are substantially less serious than those the District Attorney is likely to actually charge.
In these, and similar, situations, I will tell my clients to post bond BEFORE the arraignment. It is unlikely that the prosecutor will ever look too closely at the bail in a case, and it is almost unheard of for a Judge to raise bail without a request from a prosecutor.
The worst thing you could do in a case like this, and one of the pitfalls that awaits those without a good attorney to advise them, is to wait for the arraignment and then ask the Court to lower bail. As I said, any competent lawyer will see the Sheriff's mistake, and that includes the Judge, who will review the defendant's file. Bail will be raised to the appropriate level immediately.
There are a few situations where a person cannot be bailed out pending trial. These include:
- You are serving out a sentence for another case.
- You have an immigration hold.
- You have an outstanding warrant in another jurisdiction.
- Someone has requested a 1275 Hearing.
As to the first three reasons listed above, what must be remembered is that posting bail only releases a defendant in the case for which it is posted. If the defendant is being held in jail for other reasons, not related to the case that they posted bail on, they will still not be released. A person cannot be a "little bit" in jail. It may be possible to bail out on multiple cases, but there are circumstances when a person is held in jail and cannot be bailed out. If a defendant is serving out a sentence they will not be released until that sentence is completed. If they are charged with another case while serving that sentence, they will not be eligible for bail on the new case until the sentence on the old case is served. If a person has charges pending in another jurisdiction, they can only bail out if they are able to post bail in that other jurisdiction. This is often complicated by the necessity of clearing a warrant in that other jurisdiction. If a person has an immigration hold, sometimes called an ICE hold (I.C.E. stands for Immigration and Customs Enforcement) this means that they are pending Federal Charges for being an illegal immigrant. In such a case they will not be released unless they can also post bail in Federal Court.
A 1275 Hearing refers to California Penal Code Section 1275.1. It is a hearing requested either by the County Sheriff or the District Attorney, requesting that the Court require the defendant to prove that the money used for Bail was not illegally obtained. This kind of hearing is generally requested in cases where the defendant is accused of running some sort of illegal business or otherwise illegally obtaining money such as by selling contraband (drugs, guns, etc), or committing fraud. The idea is that it would be wrong for such a person to use their ill gotten gains to help secure their release from jail.
At such a hearing, the judge will ask where the money going to the Court (if the defendant or their family and friends post the bond themselves) or the money going to pay the Bail Bondsman's fee (in the case of a Bail Bond) is coming from.
The good news is, it is very simple, 99 percent of the time, for an attorney to prevail at these hearings and to show that the money going towards the bond is "clean." The easiest method of doing so is to simply provide that someone other than the client is putting up the money as a gift.
The bad news is that until the hearing is held, the defendant will continue to be held in the County Jail.
- You don't have the money to pay both a Bail Bond and an Attorney.
People ask me sometimes. Should I pay for an attorney or should I bail my daughter out of prison, or my brother, or myself? Now…obviously I am an attorney, and as such I am somewhat biased. I say that upfront. Having said that, the responsible answer in every case, no exception, no question, is that you hire the attorney, and any ethical Bail Bondsman will tell you this.
If you are in jail, you want to get out. If someone you care about it is jail, you want to get them out. But if you have limited resources, you need to decide where they will do the most good. If you or a loved one is facing a long jail sentence if convicted of a crime, and you only have the money to either bail them out or to pay for a private attorney, you are a fool to not choose the attorney. As terrible a thing as it is to spend months and months sitting in the County Jail waiting for trial, it is that much worse to spend years and years rotting in the State Prison because the Public Defender didn't have the time, or experience, or knowledge necessary to defend you properly.
I hope you this review of the Bail Laws in the State of California has been helpful and informative for you. If you have any questions, please feel free to contact the Law Office of Greg Hagopian in Visalia at www.HagopianLawOffice.Com
We're here to help.