If you are arrested and accused of a crime, the entire process can be a very confusing and even frightening experience. After being taken to a police station, you will undergo a processing or booking procedure that will likely include having your name, age, address, and description recorded by an officer, along with a report of the crime that you are accused of committing.
The officer will also take your fingerprints and mugshot, do a criminal background check to see if you have any outstanding warrants for your arrest and verify your criminal history, and take your personal property into storage until your release. You may also need to undergo alcohol or drug testing before being taken to a cell, and you may be allowed to make a phone call at some point in the process.
However, since you are legally innocent until you have been proven guilty, if you are a first-time offender accused of a minor crime, you may be allowed to post bail right after the booking process is completed. And even if you aren’t permitted to post bail immediately, usually within 48 hours or less you will brought in front of a judge for a bail hearing to formally face the charges against you and enter a plea. In many cases, if you plead not guilty and there aren’t reasons to believe that you are dangerous or that you will flee if you are allowed to leave, the judge may permit you to be released until your hearing or trial.
But in most instances rather than just letting you go until your court date, the judge may order that you provide some form of guarantee that you will actually come back at the appointed time. This security is called Bail, and depending on your location, you may need to pay it in cash, or a signature bond, a secured bond through a surety company, real or personal property, or through a combination of forms. If you meet the terms of your bail and make your court appearance, your bail money or other collateral will be returned to you. If not, the bail is forfeited and usually a warrant will be issued for your arrest for failure to appear or a similar charge.
While the overall process may seem simple, many people find that they have unanswered questions about how the way bail and bail bonds actually work.
1. How is the amount of my bail determined?
This is one of the most common questions that people have after they have been arrested. Usually the amount of bail is determined by a judge at a formal court meeting called a bail hearing. During this session the judge meets the accused person, also known as the defendant, and the defendant’s attorney (if any). During this meeting the judge receives the information he needs to decide whether or not setting bail is appropriate, and if so, in what amount.
To make this decision, the judge considers a number of issues such as how severe the crime was, whether the defendant has been previously convicted of a crime, the defendant’s record in attending past court appearances, how connected the defendant is to the community, whether or not the defendant is employed, if the defendant poses a danger to anyone, how likely it is that the defendant will flee if released on bail, and any other issues that might be raised by attorneys or by the defendant himself.
Some jurisdictions like Los Angeles have bail schedules which recommend a standard bail amount for particular crimes, though this can be increased or decreased at the judge’s discretion. If certain types of bail bonds are being considered which include collateral like a secured bond or property bond, the Judge will review the defendant’s financial resources along with information about the sources of whatever property or funds are being posted.
2. What are the different types of bail that a judge can set?
There are several types of bail in most jurisdictions.
“ Cash” bail may include cash, but it can usually also be paid by certified checks, cashier’ s checks, money orders and even credit cards in some cases. Whether the defendant posts cash bail himself or someone else posts it on his behalf, it is important to keep the court receipt in order to receive the funds back once the terms of the bail have been met. And if the cash bail is $10,000 or more, it may also be necessary to complete tax forms like IRS Form W-9 as well.
Unlike cash bail, signature bail means that a defendant is free to go after signing the proper forms provided by the court. No money or property changes hands in this case, which is sometimes known as being released on your own recognizance. However, it is very important that the defendant pays careful attention to any conditions or instructions that the Judge has given and follows them exactly so that his bail will not be revoked.
Sometimes a Judge may approve Property bonds, which means that instead of paying cash, a defendant gives the court a lien against his property which serves as collateral for the bail amount. If the defendant misses his court appointment, the court can foreclose on the property. Usually the Judge will require that the defendant provide proof that he owns the property, as well as an appraisal and notices of any other existing claims against the property before setting this type of bail.
3. But why would I need a bail bondsman and what does he do?
If you can’t raise have enough money to pay your bail, or if you simply don’t want to put up your own cash, you can usually purchase a Surety Bond or have a member of your family do it for you while you are in jail. A surety bond is more commonly known as a bail bond and it is purchased through a commercial bail bondsman or bail agent in those states which allow commercial bail bonding.
Generally the bail agent, who is insured by a surety company, charges 10% of the bail amount as a fee, plus collateral like jewelry or a car title, and then pledges to pay the full amount of the bail if the defendant doesn’t appear in court. The defendant is then released once the bail agent has posted the bond, and technically the defendant is the responsibility of the bail agent until the time of the scheduled court appearance.
If the defendant does appear, the bail agent returns the collateral but keeps his 10% fee as his profit. And if the defendant doesn’t appear, the bail agent pays the forfeited bail but keeps both the 10% fee and the collateral as repayment for the bail. The bail bondsmen then attempts to find the defendant and return him to jail, using bounty hunters or whatever methods are legal in his area.
4. What information do I need when contacting a bail agent?
If you are contacting a bail bondsman for yourself or on behalf of someone else who has been arrested, at a minimum you will need to know the full name of the accused person, what jail they are currently in, their booking number or other identification number used by the police or courts in your area, and what crime(s) the person has been accused of.
You should also provide any other information that the bail agent requests from you, and you should ask for some information in return. Always verify the bail bondsman’s license and his identification before hiring him. Ask about fees – although most agents charge a flat 10% of the bail amount, there may be additional charges in some cases. Be sure that you have an itemized list of all of the costs involved and that you understand what they are for.
And don’t forget to get receipts for all payments and copies of any documents that you sign. Don’t sign anything that you don’t understand or make payments that you honestly cannot afford in order to get yourself or someone you care about out of jail. It might be hard to leave a family member incarcerated because you don’t have the means to get them freed, but setting yourself up for legal problems of your own by overextending your financial resources is not the best way to help them or yourself.
5. Where do I go to meet with the bail bondsman?
This is something that you should discuss when you first contact the bail bondsman. In most cases you and the bail agent will either meet at the jail or at the bail bondsman’s office for you to pay the 10% fee and post the collateral. In some cases the bail agent might meet with you at your home, or at your attorney’s office in order to complete the transaction. And if you are not actually in the same area where the defendant is being held and don’t have a way to get there, in many cases the payments and documentation needed may be able to be handled online, by phone or by fax.
6. After I meet with the bail agent, what happens next?
After the fees have been paid and the collateral has been secured, the bail agent posts the bond to have the defendant released from jail.
7. So how long will it take for the defendant to be released?
This varies, but usually is finished in a few hours or less. It really depends on the circumstances like how crowded the jail is, or whether there are set hours during which bail can be posted in your area.
8. What does the defendant need to do once they get out on bail?
A defendant who has been released on bail needs to meet any conditions that have been set by the judge, as well as any additional conditions that were agreed to as part of the agreement that was made with the bail bond agent. And of course the defendant must appear at all of their court proceedings so that the bail will not be forfeit.
9. But what happens if the defendant misses a court date or violates the conditions of their bail?
Two things may happen in either of these cases. Depending on your location, one or both might occur. First of all, the bail agent may have to pay the full bail amount, and if so, he will keep the collateral to cover his costs. Secondly, the bail agent may need to find the defendant and take him back to jail.
10. So how when do I get my bail money or my collateral back?
Once all of the conditions of bail have been met, usually after the conclusion of a trial or a hearing, the bail money you have paid to the court or any property that you put up as collateral can be returned to you. It doesn’t matter whether the defendant is found innocent or guilty – you are still entitled to have your bail back. But you might need to file a motion with the court or take some other action in order to regain possession of your funds or property. Be sure to ask the court staff or consult with an attorney to find out the procedures that apply in your area and follow the correct steps to ensure that that your items are returned to you promptly once the bail period has ended.
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