How do Bail Bonds Work?

Posted by Phillip CrawfordAug 15, 2022

            In California, bail refers to a sum of money that is deposited with the court to ensure that a criminal defendant appears at future court dates. Bail is given as an alternative to keeping a criminal defendant in jail while their case is pending.

            Usually, when someone is arrested for a criminal offense, they are taken to County Jail before being brought to court. There are three possibilities for pre-trial detention from that point: (1) release on “own recognizance” (aka “O.R.”); (2) bail; or (3) no bail, meaning the person remains in jail. For many misdemeanor offenses (and some lower-level felony offenses), the jail will release defendants on their own recognizance with a promise to appear in court at a future date and time. If the defendant is not released on O.R., then the jail will likely set a bail amount based on a local schedule (see, Santa Cruz County's 2022 Bail Schedule). In rare circumstances, the jail may hold someone without bail while their case is pending trial or other resolution; this is usually reserved for the most serious criminal charges or for people who are extreme flight risks.

Types of bail

There are three ways to post bail in California: (1) cash; (2) a property bond; or (3) a bond from a bail bondsman.

In order to post cash bail, the defendant (or someone on the defendant's behalf) must deposit the full amount of bail in cash with the court. Every local court has different rules for posting cash. The advantage to posting cash is that the cash is returned once the case is complete, if the defendant makes all required court appearances.

Property bonds are rare. In order to get a property bond, someone must give the court a lien over a piece of property (typically real estate) that is the value of the bond. The most common form of property bond is when a family member posts their house as collateral for the bond.

            The most common way to post bail is through a licensed bail bondsman. The bail bondsman will charge a non-refundable premium of approximately 10% of the bail amount to post bail with the court on the defendant's behalf. For example, if your bail is $30,000, then you would pay the bondsman approximately $3,000. (Some bail bonds companies will charge less if you have a private attorney because then they are assured that the lawyer will make all court appearances, often without the defendant having to be present in court).  The bail bond is a private contract between the defendant and the bondsman. So, bail bondsmen can be somewhat flexible with how they charge their premium. Some bondsmen will allow the premium to be paid in installments or will allow collateral to cover part of the premium. Hiring a bail bondsman is also the quickest way to get someone out of jail. The disadvantage is that the premium amount is non-refundable.

            With any of these types of bail, the bail itself is forfeited if the defendant fails to appear in court. Bail bondsmen will typically ask the court to delay forfeiture of the bond so that they can locate the defendant and bring them back to court. You may have heard of “bounty hunters”, who are people employed by bondsman to track down a defendant who has failed to appear in court. Bounty hunters are authorized to arrest fleeing defendants and are paid a portion of the bond amount to do so.

How is the bail amount determined?

            Most counties have a “bail schedule” that the jail uses to set the initial bail amount. The amount is typically set based on the most serious offense that the person has been arrested for. Then, at the initial court appearance (called an “Arraignment”) the judge will either allow the bail to remain as set by the jail or will modify the bail amount.

            Although a defendant can ask for a reduction of bail at the arraignment, it may not be wise to do so. A motion for bail modification can usually only be made one time, unless there is a change in circumstances. An experienced criminal defense attorney would want to make sure that the bail reduction motion is as thorough as it possibly can be, which may take some investigation and coordination. Often, criminal defense attorneys will ask the arraignment judge to set a bail motion for a later date so that a proper motion can be made. The judge will consider several factors including the seriousness of the charged offense, the defendant's criminal history, the defendant's history of appearing in court (or failure to appear in court), and the defendant's ties to the community.

            In a recent decision, the California Supreme Court ruled that if bail is appropriate, judges are supposed to set bail at an amount the defendant can afford. Unfortunately, this ruling has been applied inconsistently by trial court judges. Further, some judges have used this as an opportunity to issue a “no bail” hold. The decision to seek a reduction in bail should be made very carefully with a competent criminal defense attorney to avoid the unintended consequence of removing bail altogether.   

Conditions of bail

Typically, judges will also add conditions to bail at the Arraignment. Conditions of bail could include: house arrest, participation in drug/alcohol monitoring or counseling, orders to stay away from certain locations, orders not to contact the alleged victim, or anything else the judge may deem appropriate. What this means is that a defendant's bail can be forfeited not only for failing to appear in court, but also for violating any of the conditions ordered by the judge.

            If you or a loved one has been arrested or bailed out of jail, you should consult a criminal defense attorney.  Call Phillip Crawford today and let him fight for you.

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