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Understanding Bail in California

Bail is a form of pre-trial release, allowing a defendant to remain free while their case is pending in court. Although there are pre-determined bail amounts for most crimes, the final decision always remains with the Court. Individual circumstances for each case and for each defendant are the most important factor in setting bail, or in determining whether bail is required at all. 

*Source: California Department of Insurance


What is Bail?

Bail is a sum of money a defendant pays to be released from custody while their criminal matter is ongoing in court. It is a form of pretrial release. Bail acts as a deposit to ensure a defendant attends their court hearings. A defendant posts bail by paying the required amount to the court. The court holds this money until the court hearing. If the defendant fails to attend a court date, they forfeit the money and may be sent back to jail. The Eighth Amendment prohibits bail that is excessive, but excessive is not the same as unaffordable.

Recent developments regarding bail in California reflect ongoing efforts to reform the system to address concerns about fairness, public safety, and the disproportionate impact on low-income individuals.  Ballot initiatives in California have made attempts to scrap a money-based bail system, but voters have rejected these, leaving in place the current system. Meanwhile the California Supreme and Appellate Courts have also weighed in on the issue, limiting the circumstances where financial bail can be imposed.

Having the ability to be free on pretrial release during a pending criminal case can make a world of difference. Decisions are not rushed and a proper defense often takes time to put together. When seeking an Orange County Criminal Defense Attorney, contact Klugman Law PC at 714-559-0931 to schedule a consultation.

What is the Difference Between Bail and Bond in California?

Being released on Bail, or more specifically Cash Bail, occurs when the person arrested or someone on their behalf, pays the full amount set to the Court. Generally speaking, the full amount can be refunded once the Defendant fulfills their obligation by attending all court dates, or if the case is dismissed. This is different from a Bail Bond, where the person arrested, or someone on their behalf, pays a non-refundable portion (usually around 10%) of the set bail to a private agency. The private agency then posts the full bail amount to the Court. 

Determining the Bail Amount in California

A Judge has the ability to determine what the bail amount will be, and whether it is necessary, or whether they will allow release on bail at all. There are laws from the California Penal Code that Judges must follow in setting bail, and certain crimes or enhancement allegations have their own specific rules regarding bail. 

When deciding bail, a judge will consider things like:

  • The seriousness and circumstances of the allegations
  • The defendant's criminal history and risk of reoffending
  • The defendant's flight risk, including their ties to the community

Although there are guidelines, a judge can set any amount of bail they see fit, as long as it is not objectively excessive. 

A defendant can be held in custody for several days before seeing a Judge. However, in most cases, a defendant can post what is called "schedule bail" for the crime they are being held on before seeing a Judge. In this situation, the defendant can be released directly from the police station or county jail.

Each county in California has a  pre-set, non-negotiable bail schedules for  offenses. This allows defendants to post bail directly from custody, without the need for a court hearing. If the matter appears in front of the Judge, they may, but are not required to follow the bail schedule. 

Possible Outcomes of a Bail Hearing Before a Judge

There are different possible outcomes of a bail hearing:

  1. The court releases the defendant without requiring bail (on their own recognizance or with other release conditions).
  2. The court grants bail, setting the amount the defendant is required to pay and other possible conditions. The defendant must comply with these conditions or may be taken back into custody. If the defendant cannot post bail, they will remain in custody, but they can also ask family or friends to help them. Alternatively, they may be able to engage a bail bond company to post the bail on their behalf.
  3. The court denies bail and the defendant remains in custody until the court case is over.

What if Someone Can Not Afford Bail?

This is an important issue facing the Courts right now. Thankfully, there are effective alternatives to bail which allow someone to be released from custody. If the Court believes drugs or alcohol are involved with the charges, it can require Alcoholics Anonymous or Narcotics Anonymous meetings as a condition of release. A Court can also require other forms of treatment as a release condition or in the case of domestic violence charges, order a defendant to obey a restraining order as a condition of release.

What is O/R or Own Recognizance Release?

O/R release" stands for "Own Recognizance release." This is a type of pretrial release where a defendant is allowed to remain free until their court date without having to post bail. Instead, the defendant gives a written promise to appear in court as required. In other words, getting O/R released means that someone is released from custody without posting bail.  

Are there Other Alternatives to Bail?

Another alternative to bail is house arrest, usually enforced by electronic monitoring. Depending on the jurisdiction, house arrest is either through the county's probation or pretrial services department, or through a private provider, whom the Defendant can pay.   

The Role of a Criminal Defense Attorney in Orange County and Bail

Bail is a crucial stage of the criminal process. If someone is denied bail, they may have to remain in custody until the criminal case is over. Likewise, if someone is granted but cannot post unaffordable bail bail, they will remain in custody. A skilled attorney can achieve affordable and reasonable bail, or better yet, convince the Court not to require bail at all. A creative attorney can offer alternatives to the Court uniquely formulated to the Client to achieve pretrial release. This is why a skilled and experienced defense attorney is key. Contact Klugman Law PC today by filling out our online form or calling  714-559-0931 to schedule a consultation.

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Klugman Law PC focuses on Criminal Defense, Domestic Violence, DUI, Driving Under the Influence of Alcohol, Marijuana, or Prescription Drugs, Drug Defense, Weapons Defense, Domestic Violence, Felony Strike and Violent Offenses, Restraining Orders, Civil Harassment Restraining Orders- Plaintiff and Defense, Post-Conviction Relief for Immigration Purposes, Theft, Trespassing, and Vandalism. As a former prosecutor, Attorney Adam Klugman gives his clients a unique advantage.

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Orange County Criminal Defense Attorney Adam Klugman is dedicated to representing you in domestic violence matters or other legal issues in California.

Contact Klugman Law PC in Orange County and Los Angeles today to schedule a consultation.