Bail Bonds FAQs

What is Bail?

San Diego Bail Questions

Questions About California Bail

The term Bail could be used in several distinct forms: (1) It may indicate  the security-cash or bond-given for the appearance of the defendant. (2) It may also mean the bondsman (i.e., the person who acts as surety (signer on the bail bond) for the defendant’s appearance, and into whose custody the defendant is released). (3) As a verb, it may refer to the release of the defendant (he was bailed out). The first meaning is the most common and should be employed for clarity.

Admission to bail is an order from a competent court that the defendant be discharged from actual custody upon bail. The discharge on bail is accomplished by the taking of bail (i.e., the acceptance by the court or magistrate of security-either an undertaking or deposit-for the appearance of the defendant before a court for some part of the criminal proceeding).

Bail is evidenced by a bond or recognizance, which as a rule becomes a record of the court. The bond is in the nature of a contract between the state on one side and the defendant and his sureties on the other. The agreement basically is that the state will release the defendant from custody the sureties will undertake that the defendant will appear at a specified time and place to answer the charge made against him. If the defendant fails to appear, the sureties become the absolute debtor of the state for the amount of the bond.

When talking about bail, what do you mean by the term undertaking?

An undertaking is a permissible type of bail security. The taking of bail consists of a competent court accepting an undertaking of sufficient security for the appearance of the defendant, according to the terms, or the surety will pay a specified sum to the state. Corporate sureties are commonly used, and the court will accept an admitted surety insurer`s bail bond power of attorney if executed by the insurer`s licensed bail agent and issued in the insurer`s name by an authorized person.

Must you always use a bail bondsman?

In most State systems the defendant, or any other person, may deposit the sum mentioned in the bail order or bail schedule. Cash is accepted, and it is the practice for each court to adopt a written policy permitting acceptance of checks or money orders, upon conditions that tend to assure their validity, in payment of bail deposits. Some courts have a maximum amount over which a personal check will not be accepted. Depending upon the jurisdiction, government bonds may be accepted. Please note some jurisdictions will set a bail order requiring a corporate surety bond. This means that you can only post bail thru a surety bail bondsman.

What if someone believes that the money to be used to bail someone out is the product of criminal activity?

The judge or a magistrate may stay the release of a defendant if a peace officer or prosecutor files a sworn declaration demonstrating probable cause to believe the source of the consideration, etc. was feloniously obtained, or the judge or magistrate has probable cause to believe the source was feloniously obtained. This order is commonly known as a Nebbia Hearing or Bail Sufficiency Hearing. If probable cause exists, the defendant then bears the burden by a preponderance of evidence to prove that no part of the source was so obtained. A defendant who prevails must be released on issuance of a bail bond as specified.

What is the purpose of bail?

The purpose of bail is to assure the attendance of the defendant, when his or her appearance is required in court, whether before or after conviction. Bail is not a means of punishing a defendant, nor should there be a suggestion of revenue to the government.

Is bail a matter of right?

Although the right to bail has constitutional recognition in the prohibition against excessive bail, bail is not always a matter of right. However, with certain exceptions a defendant charged with a criminal offense shall be released on bail. Persons charged with capital crimes when the facts are evident or the presumption of guilt great, are excepted from the right to release on bail. However, a defendant charged with a capital crime is entitled to a bail hearing in the trial court to determine whether the facts are evident or the presumption great. A capital crime is an offense that a statute makes it potentially punishable by death or life imprisonment, even if the prosecutor / government has agreed not to seek the death penalty. It is presumed that the risk of flight of the defendant is too great when he or she is facing death or life in prison without the possibility of parole.

Is the Public Safety issue measured in the decision to admit a defendant to bail, or to deny Bail?

Bail can be denied in certain non-capital cases based upon a finding of substantial likelihood of harm to others. When the facts are evident or the presumption of guilt is evidently great, bail may be denied in the following instances: In felony cases involving acts of violence, or felony sexual assault offenses on another person, if the court finds on clear and convincing evidence that there is a substantial likelihood that the release of the accused would result in great bodily harm to others. In a felony case, if the court finds on clear and convincing evidence that the accused has threatened another with great bodily harm, and that there is a substantial likelihood that the accused would carry out the threat if released. The requirement of findings based on clear and convincing evidence implies that a hearing will be held on the issue. If there is existence of a substantial likelihood of public harm or danger to the community it would be determined on the basis of the specific circumstances of the case, the testimony of witness’ and prior history of the defendant. The decision to grant or deny bail is subject to review on a court petitioned motion by the defendant.

What is considered by the Court in fixing the amount of the bail?

The amount of the bail is first and foremost within the scope and discretion of the judge or magistrate, with only two general limitations: First: The purpose of bail is not to penalize or punish the defendant, but only to secure the appearance of the accused, and it should be set with that in mind. Second: Excessive bail, not warranted by the circumstances or the evidence at hand. Is not only improper but a violation of constitutional rights. In fixing the amount of the bail, the court takes into consideration the seriousness of the charge, the defendant’s previous criminal record, and the probability of the defendant appearing at the trial or hearing.

Additionally, if public safety is an issue, the court may make an inquiry where it may consider allegations of injury to the victim, danger to the public and/or to the defendant him/her self,  threats to the victim or a witness, the use of a deadly weapon, and the defendant’s use or possession of controlled substances. A judge or magistrate setting bail in other than a scheduled or usual amount must state on the record the reasons and address the issue of threats made against a victim or a witness. The court must also consider evidence offered by the detained person regarding ties to the community and ability to post bond. The bail amount set by the court must be within the minimum range amount of bail that would reasonably assure the defendant’s appearance. NOT the Maximum!

Does the bail bond continue eternally, can you get it returned?

When the bail has served its purpose, the surety will be exonerated (i.e., released from the obligation). Exoneration normally occurs when the proceeding is terminated in some way or on the return of the defendant to custody. After conviction, the defendant appears for sentence. If sentenced to jail confinement or imprisonment the defendant is committed to the custody of the sheriff, and the liability of the surety/s’ is discharged. Please note that if

What if the defendant is sentenced to probation?

A defendant who is convicted and given probation, is released from custody and the bail bond must be exonerated as a matter of law.

What is the difference between a surety and a professional bail bondsman.

A professional bail bondsman is a bail bondsman who pledges his or her own property / security to guarantee the bail bond to the state. A surety bail bondsman utilizes the financial strenght and backing of an admitted insurance company. A surety bail bondsman is also able to post federal court and immigration bail bonds, where a professional bail agent is not.

Does The Bail Bond Continue Forever, Can You Get It Back?

When the bail has served its purpose, the surety will be exonerated (i.e., released from the obligation). Exoneration normally occurs when the proceeding is terminated in some way or on the return of the defendant to custody. After conviction, the defendant appears for sentence. If sentenced to imprisonment the defendant is committed to the custody of the sheriff, and the liability of the surety terminates.

What If The Defendant Is Sentenced To Probation?

A defendant who is convicted and given probation is released from custody, and the bail must be exonerated.

What If The Defendant Runs?

The surety or depositor may arrest the defendant, or authorize and agent to do so for the purpose of surrendering him into custody to ensure his future appearance. This extraordinary power of the bail bondsman is of ancient origin. When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed; it is likened to the re­arrest by the sheriff of an escaping prisoner. The following may be authorized to arrest a bail fugitive: A certified law enforcement officer. A person licensed by the State to do so (i.e., holding a bail license in another state and authorized in writing by the bail or depositor to make the arrest). A person contracted and authorized in writing by the bail or depositor to do so, Bail Fugitive Recovery Person. A private investigator or persons doing the foregoing have been called bounty hunters, yet the term does not fit the facts of today`s world, they are acting under contract.

In What Instances Will The Bail Be Forfeited?

A judge must in open court declare forfeited the undertaking of bail, or the money or property deposited as bail, if, without sufficient excuse, a defendant fails to appear for any of the following: (a) arraignment, (b) trial, (c) judgment, (d) any occasion prior to the pronouncement of judgment if the defendant`s presence in court is lawfully required, or if the defendant fails to surrender in execution of the judgment after appeal.

If The Defendant Does Not Appear And The Court Orders A Forfeiture, Can It Be Set Aside If He Later Appears?

A court will sometimes order bail forfeited on the defendant`s nonappearance, then vacate the forfeiture to reinstate the bail when the defendant appears and offers an explanation for the absence. Some instances of this would be the nonappearance because of death, illness, or insanity, or detention by civil or military authorities, and if the absence was not with the connivance of the bail (acquiescence of the bonding company to the absence). An example of illness would be where the defendant is confined to bed by reason of a doctor`s order. If a defendant flees and the prosecuting agency does not seek extradition the bail may be exonerated.

What If The Underlying Criminal Charge For Which Bail Was Granted Is Dismissed?

Statutes provide for exoneration of the surety in the event of dismissal. However, there is usually a time period within which the prosecuting agency may seek to re­arrest and charge with a public offense arising out of the same act or omission upon which the action or proceeding was based.

When Can Bail Be Increased?

After a defendant has been released, the court in which the charge is pending may require him to give additional bail in an amount specified or to meet an additional condition upon a finding made in open court that the defendant has failed to appear; or that additional facts have been presented that were not shown at the time of the original release order, and the court may order him to commitment unless he or she gives such bail or meets such other conditions.

What Else May Happen When A Defendant Fails To Appear?

The court may issue a bench warrant for his apprehension and arrest for the failure to appear upon the underlying charge, which would thus be a separate triable offense, separate and distinct from the original charge. The appropriate agency will enter each bench warrant issued on a private surety­bonded felony case into the national warrant system, the National Crime Information Center (NCIC).