Monder Law Group - News

Getting Out Of Jail

After a criminal suspect is arrested, the next steps in the case are the processing of the person into police custody (“booking”), and a determination of his or her eligibility for release from custody in exchange for the posting of a set amount of money (“bail”). 

Booking

After arrest, a criminal suspect is usually taken into police custody and “booked,” or “processed.” During booking, a police officer typically:

• Takes the criminal suspect’s personal information (i.e., name, date of birth, physical characteristics);
• Records information about the suspect’s alleged crime;
• Performs a record search of the suspect’s criminal background;
• Fingerprints, photographs, and searches the suspect;
• Confiscates any personal property carried by the suspect (i.e., keys, purse), to be returned upon the suspect’s release; and
• Places the suspect in a police station holding cell or local jail.

(Note: persons arrested for minor offenses may merely be given a written citation and released, after signing the citation and promising to appear in court at a later date.)

For criminal suspects who are placed in jail, the first priority is usually getting out. Except when very serious crimes are charged, a suspect usually can obtain pre-trial release through bail or “own recognizance” release.

Bail: Getting Out of Jail After an Arrest

What you need to know about bail — what it is, how it’s set, and how to pay it.

A person’s first thought upon landing in jail is often how to get out — and fast. The usual way to do this to “post bail.” Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn’t show up, the court keeps the bail and issues a warrant for the defendant’s arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose — called preventative detention — is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

If a person can’t afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the person appears in court for the first time (usually called the arraignment).

Bail: Getting Out of Jail After an Arrest

Paying Bail

Bail can take any of the following forms:

• cash or check for the full amount of the bail
• property worth the full amount of the bail
• a bond (that is, a guaranteed payment of the full bail amount), or
• a waiver of payment on the condition that the defendant appear in court at the required time (commonly called “release on one’s own recognizance”).

A bail bond is like a check held in reserve: It represents the person’s promise that he or she will appear in court when required to. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).

A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require “collateral.” This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person’s valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released “on their own recognizance,” or “O.R.” A defendant released O.R. must simply sign a promise to show up in court. He doesn’t have to post bail.

A defendant commonly requests release on his own recognizance at his first court appearance. If the judge denies the request, he then asks for low bail.

In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

• The defendant has family members (most likely parents, a spouse or children) living in the community.
• The defendant has resided in the community for many years.
• The defendant has a job.
• The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
• The defendant has been charged with previous crimes and has always appeared as required.

“Own Recognizance” Release

When a criminal suspect is arrested, booked, and granted “own recognizance” release, no bail money needs to be paid to the court, and no bond is posted. The suspect is merely released after promising, in writing, to appear in court for all upcoming proceedings. Most state criminal courts impose certain conditions on own recognizance release, prohibiting the suspect from leaving the area while proceedings are ongoing, or requiring that the suspect contact the court periodically while the case is ongoing.

As with setting bail, when deciding whether to grant own recognizance release a criminal court judge considers:

• The seriousness of the crime;
• The suspect’s criminal record;
• The danger that the suspect’s release might pose to the community; and
• The suspect’s ties to family, community, and employment.

If a suspect who has been released on “own recognizance” fails to appear in criminal court as scheduled, he or she is subject to immediate arrest, and any chance for bail release is all but eliminated.

If you have any questions about getting out of jail contact San Diego Criminal Defense Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense