Right To Bail Law – How Bail Is Determined

by Ambrosio Rodriguez | Oct 29, 2022 | Bail Bonds

In most states, a monetary system is used for bail. Bail allows a defendant to be released from jail pending the resolution of their criminal case.

A defendant could deposit money with the court as bail or obtain a bond to secure their release. The amount of bail is based on a bail schedule, which, in turn, is based on whether the crime was a misdemeanor or felony offense and other factors.

How Is Bail Determined Under Current California Law?

A judge determines whether to grant bail after listening to arguments from the prosecuting attorney and the defense counsel. There are several potential outcomes for bail and bonds.

Denied Bail or Bond

First, the judge can order a defendant to remain incarcerated if the judge believes that action is justified given the facts of the case. Keeping a person in jail without bond is typically used in cases involving violent crimes or when the person is likely to disappear if released or cause further harm.

California Penal Code §1275(a) states that public safety is the “primary consideration” when a judge sets, reduces, or denies bail. Therefore, there must be convincing and clear evidence that holding a person in jail without bond is the only way to protect the public’s best interest.

Release on Your Own Recognizance

Second, the judge could release the person on their own recognizance (O.R. release). That means the person does not have to post a money bail or bond to be released from jail. The defendant must promise to attend all court hearings, and the judge could impose other conditions or terms for release.

The terms for an O.R. release could include the following:

  • Surrendering your passport
  • Submitting to random drug and alcohol screening
  • Regular appointments or telephone calls to the court or a probation officer
  • Following a restraining order preventing contact with the alleged victim and any witnesses
  • No contact between co-defendants
  • Travel restrictions
  • Home detention and/or GPS electronic monitoring
  • Surrendering all weapons and firearms
  • Attending drug and/or alcohol treatment programs
  • Attending mental health therapy and/or counseling

If you violate the terms or conditions of your release, the judge could revoke the release. You would be placed in jail pending the outcome of our criminal case. If the judge does not put you in jail, the judge could require monetary bail to secure your compliance.

Granted Monetary Bail

Third, the judge may impose monetary bail. The defendant would need to deposit money with the court or secure a bond for their release. There has been bail reform in California during the past several years.

Many people remained in jail because they could not afford to post bail or bond. However, on August 28, 2018, Senate Bill 10 was signed into law in California. The legislation changed how bail was determined in California, moving from money bail in favor of risk assessment. The law was intended to prevent low-risk people from being held in jail only based on their inability to pay bail.

The California Supreme Court addressed this issue in its March 25, 2021, opinion in the case of In re Kenneth Humphrey. The case confirms that a court must determine certain facts before holding a defendant in custody. Those facts are:

  • The defendant has the financial ability to pay bail but has failed to pay the amount of the bail the court found reasonable; OR,
  • Detaining the defendant is necessary to ensure the defendant’s appearance in court and protect the public interest.

There must be convincing and clear evidence that no less restrictive alternative would reasonably protect the government’s or the public’s interest. Conditioning a person’s release on monetary bail without addressing the person’s ability to pay and whether other measures could be taken instead of bail violated the person’s rights.

Can My Bail Amount Be Reduced?

The judge uses a variety of factors to determine bail. However, the judge’s order for bail is not final. You can file a motion with the court asking for a bail reduction.

However, you have the burden of proving that the bail amount is unjust. You might argue that you are not a high-risk individual, so alternate measures would be sufficient to ensure your appearance in court. You must show that the bail amount is excessive and violates your rights.

While you can petition for a lower bail amount without a lawyer, hiring an experienced Los Angeles criminal defense lawyer can give you a better chance of lowering the bail amount. An experienced lawyer understands the new bail laws in California. The attorney understands what evidence to present to the court and the arguments to make to convince the judge you deserve to be released from jail pending the outcome of your case.

Contact the Los Angeles Criminal Defense Law Firm of The Rodriguez Law Group Today For Help

For more information please contact the Los Angeles Criminal Defense law firm of The Rodriguez Law Group for a free consultation, give us a call at (213) 995-6767 or visit our convenient location:

The Rodriguez Law Group – Los Angeles Criminal Defense Attorney
626 Wilshire Blvd Suite 460, Los Angeles, CA 90017, United States