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What is Bail OR Bond?

The purpose of a bail hearing is to set the amount of bail and is often combined with arraignment. For most defendants, bail is the most common mechanism of release. Even though the bail process is usually brief, a defendant should take the time to understand the bail process and how bail hearings function.

Bail is a process in which a defendant puts up collateral in exchange for release from jail and a promise to appear at in court at a later date. A defendant is allowed to resume a normal life until the case is resolved. Most states require some type of monetary collateral in the form of cash, check, or money orders. Defendants are required to post the entire amount of the bond before they can be released.

For example, if a bond was set at $5,000, then the defendant would be required to produce $5,000 before he could be released. Because most people don’t carry $5,000 in their wallets or bank accounts, many jails will allow a surety or third party to post bond based on a backed promise. These people are referred to as bondsmen. They have already given the sheriff a detailed list of their assets to prove that they are worth $5,000. The surety agrees to put up collateral for the defendant's benefit. In exchange, the defendant must pay the bondsman a percentage of the bond, usually 10% of the bond amount.

Bail Hearing

A typical bail hearing is brief. The magistrate or judge will review the nature of the charges against a defendant and set a bail relative to the severity of the charges. Some jurisdictions have guidelines that judges are encouraged to follow to provide consistent bond setting levels. Judges are not required to follow the guidelines, however, so the final decision is the judge’s. The judge will sign a document certifying that the defendant has been advised of his constitutional rights and then write in an amount of bail. A defendant who has the funds to post bail will be taken to a bond section to sign an agreement promising to appear for court in exchange for release. These early bail hearings usually take only a few minutes. However, in complicated cases, bail hearings can last longer or be revisited later in the criminal process to increase or reduce the amount of a defendant’s bail.

If a defendant is charged with a severe crime, the state may ask that a formal bail hearing be set so the judge can receive more information than nature of the charge. During these bail hearings, the judge can receive information about a defendant’s criminal history, any special circumstances surrounding their current charges, evidence of possible flight risk, and evidence of a defendant’s ability to post bail. The court’s goal at a bail hearing is to set an amount of bail that will ensure the defendant will appear at later hearings, and also to consider any risk to the community. Instead of merely increasing the bond, the judge or magistrate may impose certain bond conditions on a defendant’s bail.

During a bail hearing, a judge can impose any reasonable conditions related to the safety of the community or the safety of the victim. For example, in a DWI case, defendants are often required to install interlock devices on their automobiles as a condition of their bail. In assault cases, a judge can build a protective order into the bond conditions and prohibit a defendant from going within a certain distance from the victim. If the judge is concerned that a defendant will not appear, the judge can require a defendant to check in with a probation officer or court official on a regular basis or wear an ankle monitor while the case is pending. As long as the condition is related to the criminal case, the judge can utilize bond conditions to guarantee safety and compliance.

When Bail Hearings are Held

Most bail hearings are held close to the time of arraignment early in the criminal process. However, on his own motion or a motion by the state or defendant, a judge can always revisit the issue of bail during the prosecution or after a defendant is actually charged with an offense. The judge may want to revisit bail after indictment if the charges change significantly from arraignment to grand jury. After a defendant is convicted, the judge may want to increase a bond when the defendant exercises the right to appeal to ensure the defendant won’t disappear after the appeal is finished. Regardless of when the hearing is held, the same process and factors will apply. Before a defendant leaves a bail hearing, the defendant should understand all of the bail conditions to avoid any sanctions by the court.

After the Bail Hearing

The court or magistrate will expect a defendant to comply with all of the conditions of bail. If a defendant violates conditions set as a result of a bail hearing, then the judge can sanction a defendant in a variety of ways. The first way is to forfeit the bond and arrest the defendant. This means that a defendant or bondsman loses the right to reclaim the posted collateral. If the bond was a surety bond, then a defendant could be required to assist the bondsman in paying off on the forfeited bond. When a defendant is arrested on a bond forfeiture, the bond amount usually increases. If a defendant commits additional offenses while out on bond, then a judge, after a bail hearing, could hold a defendant without bail. Forfeiture or re-arrest can also be ordered by the judge if a defendant fails to comply with any specialized bond conditions.

Some defendants get so excited by the idea of getting out that they don’t hear all of the things expected of them after a bail hearing. A defendant should never guess what bond conditions are. A defendant who does not understand the bail hearing process in a given jurisdiction should consult with a criminal attorney as soon as possible to avoid future problems.


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