3. Bail

The following sample bail motion must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.

Note: To help maximize your chances of obtaining an own recognizance release or a reduced bail, show the court as many ties to the community and as much support from family and friends as possible. Show the court that you have many reasons to stay in town and fight the charges against you and that it is unreasonable to believe that you would ever fail to appear.

It is good to show that you own a home, have a steady job, own a business in the area, or otherwise would suffer significant harm if you were to leave the area.

Get letters of support, such as one from your employer asking you to come back to work, one from your minister describing your religious activities, and even ones from your family explaining that you have an extended family with many supportive members that will stand by you and ensure that you go to court.

A typical bail motion asks the court to reduce bail without giving the court good reasons to grant the motion, but a typical bail motion is denied. Help your attorney show that you are not the typical defendant, and you should be given a reasonable bail because you are sure to appear for all of your hearings.



TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move for an order reducing the amount of bail set in this matter from ___________ to an own recognizance release.

The motion will be made on the grounds that the bail set is excessive within the meaning of the Eighth Amendment to the United States Constitution and of Article I, §12 of the California Constitution.

The motion will be based on this notice of motion, on the attached declaration, the memorandum of points and authorities served and filed herewith, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.


By Bill Slocumb,
Attorney for Dave Douglass



I, Bill Slocumb, Attorney for Defendant, declare:

Defendant is charged with Burglary with a gang enhancement. Defendant has no prior criminal convictions.

Defendant has extensive ties to the community.

Defendant is gainfully employed at __________. Defendant has been married for ____ years and has ____ children. Defendant’s parents, brothers, and sisters also live in town as well as members of his extended family.

Defendant is, therefore, not a flight risk.

I so declare based on information and belief.


By Bill Slocumb,
Attorney for Dave Douglass



Article I, §12 of the California Constitution, which establishes a person’s right to obtain release on bail from pretrial custody, prohibits the imposition of “excessive bail.” The Eighth Amendment to the United States Constitution, applicable to California through the Fourteenth Amendment, prohibits the setting of a bail in an excessive amount.

Because bail was set per the county schedule, the amount was set without the court’s attention to this individual defendant.

The United States Supreme Court has repudiated the concept of a disparate system of bail which requires those unable to post high bail (such as defendant, which under California law would require a premium of minimally 7% of total bail) to remain in custody while allowing the rich to obtain their freedom no matter how dangerous they may be. To the contrary, in Stack v. Boyle (1951) 342 U.S. 1, the court held that when bail is available, it must be fixed only in that the amount necessary to guarantee the bailee’s appearance at trial. Any higher bail amount is excessive under the Eighth Amendment. California’s Penal Code §1275 adds other factors to consider, as discussed below.

Since passage of Proposition 21 on the 1998 California ballot and subsequent legislative enactments, public safety has become the primary consideration in setting or denying bail. (Penal Code §1275(a)) Because the trial court may impose bail conditions intended to ensure public safety (such as directing Defendant to (a) wear an ankle monitor, (b) not travel outside the county, and (c) surrender his passport), reliance on an extraordinarily high bail such as was set herein is unwarranted.

While (1) public safety has been deemed the primary consideration in setting bail in the Court’s discretion (Griffin v. Superior Court (1972) 26 Cal App 3rd 672, 702), in setting or reducing bail, the following factors must also be taken into consideration per California Constitution Article I, § 12; Penal Code §1275; (2) the seriousness of the offense charged; (3) the defendant’s previous criminal record; and (4) the probability of the defendant appearing at hearing or trial of the case.

The charge in this case is serious, but the other factors weigh in favor of a bail reduction. (1) Defendant did not harm anyone and has not shown himself to be a danger to anyone, (3) Defendant’s previous criminal record is non-existent, and (4) Defendant’s ties to the community make the probability of him appearing for future hearings very high.

In Van Atta v. Scott (1980) 27 Cal. 3rd 424, 444, our Supreme Court ruled that the prosecution has burden of proof concerning a defendant’s likelihood of appearing in court. The court stated, “Accordingly, it is concluded that due process requires the burden of proof concerning the detainee’s likelihood of appearing for future court proceedings to be borne by the prosecution at the OR hearing”.

In numerous cases our Supreme Court has declared expert predictions that persons will engage in future violent conduct to be unreliable and frequently erroneous (see People v. Surnick (1975) 14 Cal. 3rd 306, 326-327; People v. Murtishaw (1981) 29 Cal. 3rd 733, 767-775).

It is respectfully submitted that Defendant in this case is not a danger to society and that he will appear for all hearings as required.