D. Answers to Bail Questions

1.      What is bail?

Bail is the court’s security to ensure that a defendant will appear at future court dates.  It is a fixed amount that the court requires from a person before releasing that person from jail.

The bail can be as small as a promise to appear; it can be as high as several million dollars, or bail can be denied completely for a defendant facing very serious charges or a defendant who has previously failed to appear.

Bail may be in the form of a promise (known as an “own recognizance” or “OR” release), cash, real estate, bail bond, or other surety acceptable to the court.

2.     Do I have to post bail if I can prove I am innocent?

Nearly everyone has heard “innocent until proven guilty,” but this, unfortunately, does not apply when it comes to bail.  A defendant may have a perfect alibi and absolute proof of innocence, but the court will generally not consider the strength of the prosecution’s case when setting bail.  Bail is initially set based primarily on the charges against the defendant, regardless of weaknesses in the case.

3.     Can the amount of bail be reduced?

The court can reduce or increase bail upon the request of the defendant or the prosecution.  When requesting a reduction, it is helpful for the defendant to show that he has strong ties to the community, such as home ownership, multiple family members in the area, long-term employment, and involvement in the community.  However, when a bail reduction is requested, there is always the danger that bail will be increased instead of decreased.

4.     What does the court consider when setting bail?

In setting, reducing, or denying bail, a judge or magistrate will 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 the defendant appearing when ordered to do so. The court may also consider factor such as other outstanding warrants against the defendant, prior incidents where the defendant failed to make a court appearance, the criminal record of the defendant, the location and type of defendant’s residence (owner or renter), the defendant’s wealth, the amount of the defendant’s gain from the crime charged, and the number of separate offenses charged.

Defendant’s status as a homeowner in the area may be given great weight because it shows that defendant has a strong tie to the community and a strong reason to remain in the community.

The fact that the defendant has or has not asked for a jury trial may not be considered in fixing the amount of bail.

5.     What is cash bail?

Cash bail means that the defendant deposits with the court (or the sheriff) the full amount of bail in cash.  For example, if bail is set at $100,000, the defendant must post the full $100,000 with the court to be released on cash bail.

6.     What is a real estate bond?

The court may accept real estate in lieu of bail, but the process may be difficult, time-consuming, and expensive.  The person attempting to post real estate in lieu of bail must prove to the court that the equity in the real estate is at least twice the amount of the bail.  This generally requires an appraisal of the property as well as title insurance to prove the amount of loans against the property.  It is not enough that a person owns a house; the person must show that the value of the house less the value of any encumbrances on the house (loans, liens, judgments, etc.) is at least double the amount of bail.

For example, say bail is set at $100,000 and the defendant owns a house that he bought for $250,000, but still owes $50,000 on the house.  If the house is appraised for $240,000, the defendant cannot bail out using the real estate because $240,000 less the $50,000 loan is $190,000, and that amount is not double the amount of the bond.  House values fluctuate, and appraisers may give conservatively low values when making an appraisal for the court, so it is common for defendants to be surprised that the value of the family home falls far short of the amount required for release from custody.

A defendant is entitled to a hearing to determine the value of the equity in the real estate, and witnesses may be called at the hearing.  This process may take a week, a month, or more depending on how long it takes to get the property appraised and get the proper documentation.  However, even after obtaining the necessary documents and witnesses, unless the court is satisfied that the value of the equity is equal to twice the amount of the bail, release on real estate bond will be denied.

7.     What is a bail bond?

A Bail Bond is a contract with a bail bondsman whereby the bondsman will guarantee to the court that the defendant will make all court appearances after his release on bail. If the defendant fails to go to court, the court will demand full payment of the bond from the bondsman.

8.     How much does a bail bond cost?

The law generally sets the price of a bail bond at ten percent of the bail amount. For example, if the bail is set at $100,000 then the bail bond will cost $10,000.  Some bondsmen are able to offer premium reductions for defendants that employ a private attorney, are past or present members of the military, are senior citizens or are union members.  Combined discounts may reduce the bail amount by as much as 30%.  For example, if the bail is set at $100,000 and the defendant is a past member of the military who hires a private attorney, the bond could cost $7,000 ($10,000 less $3,000 premium discount).

9.     What is a bail source hearing?

Penal Code §1275.1(a) requires that bail cannot be accepted unless the court is convinced that no portion of the bail was feloniously obtained.  This means that if the court believes part of the money used for bail came from criminal activity, bail will not be allowed.

If the prosecution believes that some or all of the bail money came from criminal activity, he must file a declaration that gives the court probable cause to believe that the source of the bail was feloniously obtained.  The defendant is entitled to receive a copy of the declaration and then the defendant bears the burden of proving by a preponderance of the evidence that the source of the bail money was not criminal activity.

At the hearing, any person who can provide relevant testimony about the source of funds should be present, and the person posting bail (or paying the premium for a bail bond) should be prepared to provide financial documents to prove the source of bail, such as pay stubs, bank statements, tax returns, real estate deeds, and credit card statements.

If the defendant is able to prove the source of funds, bail must be accepted and he must be released.

10.  When do I get bail back?

If the defendant has posted cash bond and then makes all necessary appearances in court, bail will be returned after defendant is sentenced and begins serving the sentence.  If the defendant has posted a real estate bond, it will be exonerated – the lien against the real estate will be released.

11.  Do I get back the money I paid for a bail bond?

No.  The premium paid for a bail bond is not returned even if the case is dismissed or the defendant makes every required appearance in court.  The amount paid for a bail bond is much like the amount paid for insurance on a car – the amount paid for car insurance is not returned just because the driver does not have any accidents.  A bail bond is insurance that a defendant will appear in court when required, and the amount paid for the bond is not returned just because the defendant does appear.

12.  What do I get back from the bondsman?

The bondsman keeps the money paid for the bond and will continue to collect payments towards any balance owed, but if you pledged any collateral to secure the bail bond, such as a deed to real estate or the pink slip to a vehicle, you get your collateral back after the case is over and the bail bond premium is fully paid.

13.  What is a cosigner responsible for?

Cosigners are responsible for paying the bail bond premium if the defendant does not.  Also, if the defendant does not appear in court as required, the cosigners is responsible for any financial losses to the bondsman as a result of the failure to appear.