There has been a lot of recent confusion over the issue of bail in California. In the past several years there have been a number of movements to abolish the use of bail.

In some ways the movement is short-sighted and fails to address the real issue – that the bail amounts are set too high.Despite new case law (See, In re Humphrey and In re White). Proposition 25 and Senate Bill 10, practically, not much has changed.

In California, if you are arrested or know that you are going to be, in the majority of cases you are still entitled to post bail so that you can be released quickly. In most counties, bail is initially set according to a bail schedule. Many counties have the bail schedule posted on the internet. Unless there is something unusual about your case, you can expect the bail to be at or near the schedule for your area.

Important tip:

if you know you are being investigated and might be arrested, arrange for bail BEFORE you are arrested. This will speed up your release. Sitting and waiting in jail is not the place you want to be.

There are three ways to post bail:

Put up cash with the court: This means paying the full amount of bail to the court. The upside of this option is that at the end of the case you get all of your money back. The downside is that you have a large amount of money tied up for the duration of the case.

And, if you fail to appear for court, you risk losing the full amount.

Put up personal property: This requires that you have double the equity in a single property or multiple pieces of property. For example, if bail is set at $100,000, then the total equity must be at least $200,000. You must prove this with a recent appraisal. What you are doing with a property bond is giving the court a lien against that property. If you fail to appear in court, the court may take the property. In situations where the bail is high, property bonds may be the way to go. It normally costs between several hundred to a few thousand dollars to obtain all of the paperwork and appraisals necessary. It may also take a week or so to secure your release once the paper documentation is received.

Use a bail bond company: The most common way to post bail is through a bail bond company. If an attorney represents you, most bail bonds companies will charge 8% of the total bail; if you are not, they will charge the full 10%. In our example of bail being set at $100,000, your fee to the bail bonds person will be between $8,000 or $10,000. Having an attorney could save you $2000. Especially for low bail amounts, a bail bonds person is generally the best way to go.  However, at the end of your case, you will not get your deposit back, regardless of the outcome.

If you cannot afford the initial amount of bail, you can request the Judge to reduce bail or agree to some form of release.  After the Humphrey case; case, if the issue of bail is raised before the Court, the Judge is to determine whether you can be released and on what conditions.  There is a three-part analysis a Judge must consider

Non-Financial Conditions: If “the record reflects the risk of flight or a risk to public or victim safety, the court should consider whether non-financial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial.” Non-financial conditions might include electronic monitoring, regular check-ins with a pretrial case manager, community housing or shelter, stay-away orders, or drug and alcohol testing and treatment.

Money Bail The Defendant Can Reasonably Afford to Pay: “If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and—unless there is a valid basis for detention—set bail at a level that the arrestee can reasonably afford.”

Pretrial Detention Order. “[I]f the court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no non-financial condition of release can reasonably protect those interests.” In other words, you can be detained without bail, subject to Constitutional limitations.

As a practical matter, if you bail out before your first court appearance, the issue of bail (or your custody status) is rarely addressed.  However, if you remain in custody and request a bail hearing pursuant to Humphrey the Court is supposed to evaluate your situation.  Sometimes bail goes down and sometimes it goes up, and sometimes you can be detained without bail.  In truth, our experience has been that it depends a great deal on who the judge is on that day.

Additionally, for sex offenses, we have seen people bail out and go to court, only to have the District Attorney move the Court for a bail increase.

We strongly recommend that you consult with one of our attorneys before you post bail so you will understand your options.