How to Reduce, Pay, or Eliminate Bail – A Complete Guide

Learn from a former prosecutor about how to reduce, pay, or eliminate your bail. This guide includes everything you need to know about the law on bail.

  1. Ways to Reduce Your Bail
  2. Rules for Setting Bail
  3. How to Pay Bail
  4. How an Excellent Attorney Can Improve Bail Status

In California, bail is an amount of money set by the court in a criminal prosecution that the defendant must pay to be released from jail before trial. Although a defendant is presumed innocent until proven guilty, the government can keep the defendant in custody while awaiting trial to make sure that he or she will appear in court.

In setting the amount of bail, a California court will consider relevant facts about the defendant and the crime alleged, including

  • The seriousness of the crime alleged
  • The defendant’s prior criminal record
  • The probability that the defendant will appear for hearings and trial
  • The public safety, including the safety of the victim and the victim’s family

See “Factors in Setting Bail,” below, for more details.

You can pay bail (also known as posting bail) or otherwise be released from custody by:

      • Paying the full amount of bail to the court or the law enforcement agency that is holding you in custody. You can pay in cash, by personal or cashier’s check, or credit card, depending on local rules. When you pay bail, you will be released from custody.
      • Paying about 10% of bail to a bail bond firm. When you use a bail bondsman, you will be required to pay about 10% of the amount of bail to the bond agency as a nonrefundable fee. This option allows you to be released from custody without having to pay the full amount of bail.
      • Receiving an own-recognizance release (“OR release”). With an “OR release,” you will be released from jail without having to obtain a bail bond or pay in cash. You will have to make certain promises to the court, such as that you will not flee.

See below, “How to Pay Bail,” for further discussion.

Ways to Reduce Your Bail

The amount of bail set by a court can mean the difference between imprisonment and freedom while awaiting trial. As a result, reducing bail to the lowest amount possible is an essential part of any criminal defense strategy. Spolin Law fights to reduce or eliminate its clients’ bail in the following ways:

  1. Reducing Bail by Attorney Application at Arraignment

The arraignment is your first appearance in court, where you will be informed of the criminal charges against you and enter a plea. At the arraignment, your attorney can apply for reduced bail release without any bail (“OR release”). In doing so, he or she will present arguments and evidence concerning relevant facts such as:

  • Your connections to the community
  • Past court appearances or criminal record
  • The seriousness of the crime alleged against you
  • That releasing you will not pose a danger to the community

These factors are discussed in more detail below.

  1. Reducing Bail by Bail Reduction Motion

When bail is set too high, your attorney can file a written motion to reduce it. This motion can be based on statutory or constitutional factors. The statutory factors are generally the same as listed above.

In addition to the statutory factors, both the U.S. Constitution and the California Constitution prohibit excessive bails. There is no hard-and-fast rule for what makes bail excessive, meaning your best chance to win a reduction on a constitutional basis is to hire an experienced criminal defense attorney who can formulate persuasive arguments for the court’s consideration on this issue.

  1. Reducing Bail by Motion Following a Change in Circumstances

California law also permits courts to reduce bail following a change in circumstances. Specifically, Penal Code § 1289 authorizes a court to reduce the bail if good cause is shown.

“Good cause” for a reduction in bail generally means a change in circumstances related to the defendant or the proceedings. For example, if your attorney succeeds in having some charges dismissed, he or she may also be able to reduce your bail. However, good cause does not mean that one judge disagrees with another’s decision on bail, meaning that your best opportunity for reducing your bail is at your arraignment or the initial bail hearing.

  1. Reducing Bail by Working with Spolin Law

Spolin Law works with a bail bond provider to secure reduced rates for Spolin Law clients. This rate reduction can result in thousands of dollars in savings for many clients, and up to ninety-thousand dollars in savings for clients facing high court-set bail. Contact our office to learn how you can benefit as other Spolin Law clients have.  We provide free consultations and can be reached at (310) 424-5816.

  1. Ways to Reduce Your Bail
  2. Rules for Setting Bail
  3. How to Pay Bail
  4. How an Excellent Attorney Can Improve Bail Status

Rules for Setting Bail

 

Factors in Setting Bail – Cal. Const. art. I, § 12; Penal Code § 1275

When a defendant is eligible for bail, California courts consider several factors to determine the appropriate amount. These include the amount established in the county’s bail schedule and constitutional and statutory factors. The factors listed in the California Constitution include:

  • The seriousness of the offense charged
  • The defendant’s previous criminal record
  • The probability that the defendant will appear for hearings and trial
  • The safety of the victim and the victim’s family

The Penal Code adds another factor: the public safety. According to the Code, this factor is the primary consideration in setting bail.

The Penal Code also expands on how the court should analyze the California Constitution’s seriousness-of-the-offense factor. That is, the court must consider:

  • The alleged injury to the victim
  • Alleged threats by the defendant to the victim or a witness
  • The alleged use of a firearm or other deadly weapon in the commission of the crime
  • The alleged use or possession of controlled substances

When examining the probability that the defendant will appear for hearings and trial, a court is likely to consider factors such as:

  • The defendant’s community ties, or whether the defendant lives in the community, owns property in the community, has local family members, or works in the community
  • Whether the amount of a bail bond is sufficiently high to discourage the defendant, given his or her wealth, from failing to appear
  • Whether the defendant has indicated that he or she will not appear
  • Whether the defendant has a history of failing to appear

The court may be required to consider still more factors in cases involving certain kinds of crimes. For example, when a defendant is charged with a controlled-substance offense, the court must consider the amount of controlled substances involved and whether the defendant is already on bail for another alleged controlled-substance offense.

California Bail Procedures – Penal Code §§ 1269b, 1269c, 1270.2, 1275

Initially, bail will be set in the arrest warrant, if there is one. If not, then bail will initially be determined by the “bail schedule” then in effect in the county of arrest. The bail schedule is a document adopted by a county to recommend an amount of bail for specified crimes. For instance, you can find the Los Angeles bail schedules for felonies and misdemeanors on the Los Angeles bail schedules page at the Spolin Law site.

When there is no arrest warrant, law enforcement officers have eight hours after booking a defendant to apply for increased bail. If the bail is not increased in that time, the defendant can post bail according to the county’s bail schedule.

At the defendant’s arraignment or a separate bail hearing, the judge will set bail by considering the bail schedule and other relevant factors, as discussed below. Alternatively, the judge may release the defendant on his or her own recognizance, which is also discussed in more detail below.

A defendant who remains in custody because he or she cannot post bail is entitled to an automatic review of the order setting bail. This review must be completed within five days of the date of the original order, although the defendant can waive it.

As discussed earlier, after bail has been set, the defendant may have opportunities to move for a reduction in the bail amount. Similarly, the prosecutor may be able to request an increase in bail in certain circumstances.

Exoneration and Forfeiture of Bail

Bail is not a punishment, but an inducement to a criminal defendant to appear for trial. Because of this, bail will be exonerated (i.e., paid back) if the defendant keeps his or her promise to appear before the court. On the other hand, the amount paid for bail will be forfeited (i.e., given up) if the defendant breaks that promise.

When bail is exonerated, the defendant is entitled to a return of any money deposited to pay for bail, and the obligation of a bail bond firm is terminated. (See below, “How to Pay Bail,” for more details about these forms of posting bail.)

Bail can be exonerated in any the following ways:

  • The case against you ends in your favor, such as by acquittal or dismissal. However, if you default on your obligation to appear for a hearing or trial, and the case is dismissed after your default, bail will not be exonerated. In addition, if the case terminates by dismissal, bail will not be exonerated for 15 days.
  • You are convicted and sent to prison or granted probation. Because bail is not a punishment, the government does not keep any amounts paid merely because you are convicted. However, if your sentence includes a fine, and you paid your bail with cash or property, then part or all of what you paid may be applied to your fine.
  • When you are surrendered to custody for good cause, the bail will be exonerated. Before forfeiture of bail, a surety (such as a bail bond firm) can arrest you and surrender you to custody in certain circumstances.

In contrast, bail will be forfeited if the defendant fails to appear before the court when required to. When bail is forfeited, the state will take ownership of any amounts paid in cash or property, and if you used a bail bond, the bail bond agency will be required to pay the full amount of bail.

Rules for Eliminating Bail, aka “OR Release” – Cal. Const. art. I, § 12; Penal Code §§ 1270, 1270.1, 1318

As an alternative to bail, defendants in certain criminal cases can be released from custody by promising to show up at court (called an “own recognizance release” or “OR release”). Rather than having to pay an amount for bail or obtain a bail bond, the defendant agrees to appear at trial and other court appearances. Upon agreeing to those terms, the defendant will be released.

However, an “OR release” is not available in every criminal case. In particular:

  • An “OR release” is not available in capital cases or for some defendants charged with violent felonies.
  • Defendants charged with only misdemeanors are generally entitled to release on their own recognizance. However, if the court finds that doing so would compromise public safety or would not reasonably ensure a defendant’s appearance at subsequent hearings and trial, then the court may deny an “OR release” and require bail.
  • For a defendant charged with a nonviolent felony, the court may permit an “OR release,” but is not required to. In such cases, when determining whether to release a defendant on his or her own recognizance, courts will generally consider the same factors as apply in setting bail, and must consider the safety of the victim and the victim’s family.

Additional procedures must be followed in cases involving violent and certain other specified felonies, such as intimidation of a witness or criminal threats. Before a court can grant “OR release” to a defendant in such cases, it must hold a hearing in open court after the prosecutor and defense counsel receive two-day notice of the hearing. It must then consider:

  • The defendant’s past court appearances
  • The maximum potential sentence that could be imposed
  • The danger that may be posed to other persons if the defendant is released, including evidence of threats by the defendant and any past acts of violence
  • The defendant’s community ties and ability to post bail

In any case where a defendant is to be released on his or her own recognizance, the defendant must agree in writing that he or she:

  • Will appear at all times and places as ordered by the court
  • Will obey all reasonable conditions imposed by the court
  • Will not leave California without the court’s permission
  • Waives extradition upon failure to appear if found outside of California

Conditions on Bail or “OR Release” – Penal Code §§ 1269c, 1270, 1318

When a court grants bail or “OR release,” it can impose conditions designed to protect the public and ensure that the defendant will appear at subsequent hearings and at trial. These conditions might include:

  • Requiring the defendant to surrender his or her passport or driver’s license
  • Submitting to random drug testing if charged with a felony drug offense
  • Ordering the defendant to stay away from the alleged victim and witnesses
  • Requiring the defendant to wear an electronic monitoring device

If a defendant is charged with stalking, the court must impose the conditions listed in Penal Code § 646.93.

When Bail is Available, and When It Is Not – Cal. Const. art. 1, § 12

Generally, the California Constitution guarantees criminal defendants the right to be released on bail, except in certain circumstances. Bail is often not available in the following cases:

    • Capital crimes. If a defendant is charged with a crime punishable by death, then bail will be denied if “the facts are evident or the presumption great.” This standard is satisfied when the evidence “points to [the defendant] and induces the belief that he [or she] may have committed the offense charged.”
    • Violent felonies and felony sexual assault. When a defendant is charged with a violent felony or felony sexual assault, “the facts are evident or the presumption great,” and the court finds by clear and convincing evidence that releasing the defendant poses a substantial likelihood of great bodily harm to others, then the court can deny bail.
    • Felonies and threats. When a defendant is charged with a felony, “the facts are evident or the presumption great,” and the court finds by clear and convincing evidence that the defendant threatened another person with great bodily harm and is substantially likely to carry out that threat if released, then the court can deny bail.
    • Parole hold. When a defendant is arrested for a crime while on parole, his or her parole officer can place a parole hold, in which case bail will be unavailable.
    • Immigration hold. Bail will also be unavailable if the federal government places an immigration hold on a defendant, believing him or her to be unlawfully present in the United States.
  • Extradition warrant. A defendant arrested for a crime committed in another state is not eligible for bail.

In Penal Code § 292, the California Legislature has clarified that certain sex offenses qualify as violent felonies and felonies involving great bodily harm for purposes of the above constitutional exceptions.

  1. Ways to Reduce Your Bail
  2. Rules for Setting Bail
  3. How to Pay Bail
  4. How an Excellent Attorney Can Improve Bail Status

How to Pay Bail

Once the court has set bail, you can pay it in one of the following ways:

    • Payment in cash. You can deposit cash for the full bail amount with the court or the law enforcement agency that has you in custody. Depending on the crime you are charged with and local rules, you may also be able to pay this amount by personal or cashier’s check, money order, or credit card.
    • Payment by bail bond. Most defendants do not post bail by paying in cash. Instead, they obtain a bail bond by paying a bail bond firm a percentage of the total amount of bail to act as surety on the bail. In other words, the bail bond firm promises to the court that if the defendant fails to appear, it will pay the full amount of bail. The fee for a bail bond is normally around 10% of the total bail amount, and it is not refundable.
    • Payment in government bonds. Instead of paying cash or obtaining a bail bond, you can deposit U.S. or California government bonds having a combined face value of at least the amount of bail with the court. However, the court will not accept government bonds if their market value is less than their face value.
    • Payment by equity in real property. If you have sufficient equity in real estate, you can offer that property as security for your release. Your equity—that is, the difference between the property’s value and any amounts owed on it—must be at least twice the amount of bail before the court will accept it.

However you choose to post bail, the court will not accept it unless the judge is convinced that you didn’t acquire the funds or property you used through the commission of a felony. If the prosecutor or a law enforcement officer convinces the court that there is probable cause that any part of the payment was feloniously obtained, then you will have to prove otherwise.

  1. Ways to Reduce Your Bail
  2. Rules for Setting Bail
  3. How to Pay Bail
  4. How an Excellent Attorney Can Improve Bail Status

How an Excellent Attorney Can Improve Bail Status

Being charged with a crime can be a life-changing event, regardless of the outcome in your case. If you are unable to afford bail, your work and family life will be disrupted before you even have a chance to defend yourself. An excellent attorney can improve your bail status by:

  1. Oral Arguments in Court to Reduce Bail or Receive an “OR release.” Your attorney at arraignment can have a huge impact on the bail amount set. The attorneys at Spolin Law include experienced former prosecutors who understand how best to present oral arguments before a court to obtain reduced bail or an “OR release.”
  2. Written Legal Motions to Reduce Bail or Receive an “OR release.” Whether at an initial court appearance or later due to a change in circumstances, a written bail reduction motion can be the difference leading to an obtainable bail amount. Spolin Law frequently files detailed written motions to help explain to the court why you are entitled to a lower bail or “OR release.”
  3. Secure a Reduced Bail-Bond Rate from a Bail Bond Firm. Clients of Spolin Law benefit from our relationship with a bail bond firm. When you hire Spolin Law to represent you, you are eligible for a reduced premium on bail bonds. This discount can save you hundreds or thousands of dollars when securing your release.
  4. Quickly Resolving Your Case. Because any amounts paid as bail to a court will be returned when your case is resolved, Spolin Law works quickly to ensure a prompt return of your bail deposits. Our firm is led by former prosecutor Aaron Spolin, who served as an Assistant District Attorney before becoming a Los Angeles criminal defense attorney.

Spolin Law Can Help You. Call Us at (310) 424-5816.

If you’ve been charged with a crime, contact Spolin Law for help reducing your bail and fighting to win your case.  We are led by former prosecutor Aaron Spolin, who has been on the winning side of hundreds of criminal cases.  Spolin Law provides free consultations and is available at (310) 424-5816.

(310) 424-5816
contact@spolinlaw.com

Start Your Initial Consultation