Bail and OR Release

By Dana M. Grimes

Criminal Defense Lawyer

When someone is arrested, quick decisions have to be made. Families of the arrestee will go on the Internet to locate assistance, but it is hard for them to sort out the facts from the misinformation and high pressure sales tactics. Every case is unique, but the rules below are designed to point the prospective client in the right direction.

Bail and Own Recognizance Release

Ain’t got no friends to go our bail.
So, here we’ll stay ’cause we can’t pay…

Bail is set by a schedule determined by a committee of the Superior Court (the San Diego Superior Court bail schedule can be found at, but in many cases the arresting officers who apply it overcharge the case which results in bail stacking. In most cases, particularly those with high bails, clients can save a great deal of money by cooling their heels in custody for a couple of days before their felony arraignment. However, in a small percentage of cases, the information you get from the client will indicate to you that if he waits for his arraignment his bail is going to be increased. Sometimes, and in some courts more than others, his bail will be increased and he will be remanded to custody at felony arraignment even after he has posted bail and has voluntarily appeared at arraignment.

When the bail is high and the charges are serious, and from the initial facts the prospects of acquittal do not look too good, the family of the client needs to at least consider the possibility of letting the client stay in jail, accumulating pre sentence custody credits under Penal Code § 2900.5 and Penal Code § 4019. It is sad to see the client’s parents mortgage their house to bail out the client, only to see him go back into custody.

Example of Excessive Bail

The arrestee’s mother calls; he was booked at 11:00 p.m. last night on felony DUI and felony hit and run charges and the bail is $100,000. The inmate has lived in San Diego all his life, has no prior record, and the injury alleged as an element of both offenses is a relatively minor cut to the forehead of his passenger, a friend, who declined medical treatment.

Tell the mom not to post bail; she can save the $10,000 premium. If this case is not issued as a felony her son will be released on his promise to appear, and if it is filed as a felony, his bail will be dramatically reduced at his felony arraignment, which will occur within three court days of his arrest. On the other hand, if the injury is a very serious one, the complaint will include a Great Bodily Injury (“GBI”) enhancement, and you may not get much of a bail reduction – sometimes bail can even get raised at the arraignment. This is fairly common in certain courts, especially in Vehicular manslaughter cases, or cases where the defendant has a prior conviction or is on probation. Other arraignment court judges often decide that if the defendant appears for arraignment after posting bail, that is a good indication that the defendant will appear at future court hearings as ordered.

Bail is state court cases is governed by Penal Code § 1268 et. seq.

Bail in Domestic Violence (“DV”) Cases

Bail stacking is quite common in DV cases.  On a DV call, the responding officers almost always take someone to jail and book him on felony charges, with a bail ranging from $25,000 to $100,000, depending on the combination of charges. The vast majority of these cases result in either no charges being filed or misdemeanor charges with little or no bail, so most clients are better off sitting in jail for a couple of days rather than paying a premium to the bondsman.

As the above information suggests, DV cases are a gold mine for the bail bondsmen, who get high premiums at very little risk of default. The result of the bail stacking in DV cases is ironic, because the bail premiums are almost always paid by the family of the defendant, often the wife or girlfriend who called 9-1-1 to begin with and who is the alleged victim.

Bail in Federal Criminal Cases

The process for release on bail or own recognizance (O.R.) is very different in federal court. It is governed by the Bail Reform Act of 1984 (18 U.S.C. 3142 et. seq.). Bail bondsmen are rarely used. The good news is this saves the 8% to 10% commission on the bond – the bad news is the federal bond process can sometimes be very time consuming.  The bond is typically secured by the signature of family or friends, often with real estate as additional security.

A surety in a Federal case guarantees not only that the defendant will appear in court as required, but also that the defendant will not violate the conditions of pretrial release. If the defendant commits another offense, submits a dirty drug test to pretrial services, or does anything else to violate the bond, the surety can be held financially responsible. This is a wacky rule, and very different from responsibilities of sureties in state court.

We recently had a case where the defendant in a federal case posted a 25 million bond, with conditions including travel restrictions. This defendant traveled frequently in a private jet plane. The court allowed the defendant to continue to travel to specific locations in the continental US in the jet plane, but required that the two pilots of the jet sign a million dollar bond agreeing not to assist the defendant in violating his travel restrictions. The Magistrate Judge, with the agreement of the of the AUSA, ordered that under the unusual circumstances of this case, the surety pilots were only guaranteeing their own compliance with the travel restrictions. If the client smokes marijuana and has a dirty test, the pilots were not going to lose a million dollars. The defendant made all appearance as required, and the bonds of the pilots (as well as his bond) were exonerated.

CRITICISM OF BAIL POLICIES-January 2017- There have recently been widespread criticism of bail policies as they now exist in most of this country, particularly as to misdemeanor defendants. Some defendants end up spending more time in jail than others, simply because they do not have the money to post bail. In San Diego county, most judges will release defendants on promise to appear for misdemeanors or low level felonies if they have a pretty good assurance that the defendant will appear in court as ordered.

UPDATE MAY 2018- Proposed California Senate Bill 10 would lead California away from the traditional bail system. SB 10 would require the court in each case to evaluate whether a defendant can be released safely while awaiting trial and if so, what conditions should be imposed to ensure that the defendant will appear in court. In addition, SB 10 would require the availability of pretrial services. Those in opposition to SB 10 argue that the bill is unconstitutional and would undermine the knowledge of judges in determining which defendants should be released on their own recognizance and which defendants should be kept in jail.
SB 10 has passed the California Senate and is awaiting action in the Assembly.