Understanding Bail in California

Learning that someone you love has been arrested is a frightening experience. Wondering when – or whether – your loved one will be released can add to your worry. Fortunately, the law allows people to be released while criminal charges are being decided. This process is called bail. 

This article answers many common questions about how bail works in California. It addresses topics such as how bail is determined and the types of bail. It also explains how a Marin County criminal defense lawyer can help you or your loved one with bail issues. 

What is Bail?

A few days after an arrest, the suspect must attend a proceeding called an arraignment. At the arraignment, the judge will decide whether the defendant should be allowed to return to the community or should be placed in (or remain in) jail while they wait for their trial date. 

However, if the court decides to release the defendant, how can it be ensured that the defendant will appear for trial? Bail solves this problem. 

Bail is money or property that the defendant provides as a promise to return. If the defendant attends all relevant trial dates, they will be entitled to recover their money or get their property back. If they do not, they forfeit their money or property.

How Is Bail Determined After an Arrest?

There are two major components to the bail process. First, each county has a bail schedule. This schedule establishes a presumptive bail amount for each crime listed in the California Penal Code. For example, the Marin County bail schedule sets the presumed bail amount for grand theft at $10,000. 

While each county sets a presumed amount for each crime, California law allows judges to increase or reduce the set amount. In doing so, judges must consider the seriousness of the offense, the need to protect the public, the defendant’s criminal record, and the risk that the defendant will not appear for court proceedings. 

What Are the Types of Bail Available in California?

People use the term “bail” to refer to many types of arrangements and methods of payment. Here are some of the most common ones used in California courts. 

Cash Bail

Cash bail is typically used in serious felony cases. In cash bail, the court sets a particular amount. The defendant gives that amount in cash to the court. The court holds the money until the trial. If the defendant shows up for trial, the full amount (minus any court or administrative fees) will be returned to the defendant or their family.

Note that the court does not have to accept your bail money. If the court suspects that your funds came from criminal activity, it can reject your payment. However, there must be probable cause to believe that the money is connected to a crime. This cause can come from statements from police, prosecutors, or the judge’s own analysis of the facts. The court can order a hearing to look into the matter. 

Bail Bond (Surety Bond)

Like cash bail, bail bonds are common in serious felony cases. However, unlike cash bail, bail bonds involve a third party, typically a bail bond company. After the court sets the bail amount, the defendant or their family contacts the bail bondsperson. The bond company will take a certain amount up front. (California law limits this share to 10 percent of the bail amount.) The defendant will not get this money back even if they faithfully attend all court hearings. Worse, if the defendant fails to appear for their scheduled court dates, the bond company will use every means to get the rest of their money back. 

Property Bond

This form of bail is typically used in white-collar crime cases or other circumstances where the court fears that cash bail may not be sufficient to prevent a defendant from fleeing. The court will order the defendant to file a deed to some high-value property with the court. (Generally, the defendant’s equity in the property must be roughly twice as much as the bail amount.) The court will hold on to the deed until the trial ends. If the defendant attends all scheduled court dates, the court will return the deed.

Own Recognizance (OR) Release

When a person is released on their own recognizance, the court accepts their promise to appear without requiring them to post cash or property as collateral. Technically, OR release is available for anyone who hasn’t been charged with a capital crime. In reality, this form of bail is most common for people arrested for misdemeanors and non-violent felonies who have strong ties to the community and no history of skipping court dates. 

Citation Release (“Cite and Release”)

Believe it or not, a citation or a ticket is technically a form of bail. When you get a ticket for a moving violation or a citation for a low-level misdemeanor like disorderly conduct, you are free to leave. Instead of jail, the officer gives you a legal document with a specific court date.

Can the Court Impose Non-Monetary Conditions on My Release?

Yes. Bail is typically not the only condition of pretrial release. Courts can use non-monetary options such as GPS or electronic monitoring instead of or in addition to monetary bail. Courts can also

• Forbid the defendant from leaving the county or state without permission, 
• Demand that the defendant surrender their passport to the court, 
• Order the defendant to regularly check in with pretrial  supervision officers, or
• Impose a curfew. 

What Should I Do if I Think My Bail Was Unfairly Set?

When it comes to bail, the best defense is a good offense. So, your best move is to hire a Marin County criminal defense lawyer immediately after your arrest. Your defense lawyer can help you at each stage of the bail process by: 

• Advising you about the presumptive bail in your case 
• Connecting you with a reputable bail bonds company 
• Gathering evidence of your ties to the community (e.g., employment, family) 
• Proving that your cash funds come from a legal source 
• Arguing that you deserve a lower bail than that set in the bail schedule 
• Appealing your bail to a higher court, if necessary 

If you or a loved one needs help with bail in a Marin County case, contact Brownstein Law Group. Our attorneys will put our signature brand of aggressive advocacy to work for you to ensure that your freedom is not unnecessarily restricted before trial. Call 415-965-6183 or use our online form to contact the Brownstein Law team today.