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If the defendant is out on bail and fails to appear for a stipulated court appearance, it may not prove to be as much of a headache for them as it can become for the person who posted their bail. According to the law, anybody can post bail for the defendant – relatives, friends or even total strangers. Cash bail may be paid directly to the jail or court, but there is another option – to use the services of a licensed bail bondsman. With a bail agent, you are only required to come up with 10% of the bail face amount in cash.  Usually the balance is provided by way of collateral – in the form of titles, deeds, etc. or additional cash or jewelry.

Why a Defendant Might Fail to Appear 

The reasons behind a failure to appear in court on the scheduled date and time can be broadly classified into two factors – either the defendant has fled, or there has been some genuine reason behind the absence. If the reason is valid, such as the defendant having been involved in an accident or a death in the immediate family, then the court may consider the situation and decide to excuse the defendant. There is a grace period allowed by the court wherein all explanations need to be submitted with relevant proofs and documents.

However, in the event that the person on bail has absconded with no intention of facing the court or law officials, then the matter becomes serious not only for the defendant but also for the person who has posted the bail. As soon as the defendant misses his or her date with the court, the judge issues a notice to the person who bailed out the defendant, as well as the bail agency. The person signing the bail bond contract is known as the indemnitor and on the occasion of the defendant’s failure to appear in court, the bail bond is said to be in default. A bench warrant is then issued for the defendant’s arrest.

What Happens to the Money?

When the bail bond is declared to be in default by the court, the indemnitor stands the risk of losing their bail money. In addition, the risk extends to any collateral that was used to secure the bond; for example, their house, car or other valuable property. If the defendant manages to show up in court, or is arrested and brought into court within the statutory period of time, then the default status is removed.

It is the responsibility of the indemnitor to provide financial or other requested assistance to the bail bondsman, in order to get the defendant back into court. If the defendant has skipped bail and his or her whereabouts cannot be determined, the bail agency will enlist the services of fugitive recovery personnel in order to protect their surety obligation. If the defendant is still missing after the stipulated time allowed by the court, the bail can be forfeited and any collateral used to secure the bond must be sold or used to acquire the cash to make up the difference. The defendant, if caught as a fugitive, may also face criminal charges and chances are now that the original case against the defendant may also lean against him or her.

It could happen to anyone and may someday happen to you when you think it’s not even a remote possibility. Most arrests are for minor transgressions and a great percentage are for traffic violations gone astray. You might wander into another lane for a second and find yourself pulled over – and when you mention you take prescription medication, well, it could happen just that easily.

The Arrest

Of course you should always cooperate with law enforcement. Resisting arrest or yelling at the officer isn’t going to win you any points down the line, whereas a peaceful submission might just result in a release on your own recognizance. Arguing or trying to convince an officer that you are innocent is a waste of your time, and his. They’ve heard everything, dozens of times over, and whether you’re innocent or just upset it’s not going to spring you out of the handcuffs or jail.

The Rights to Remain Silent

These rights apply to any person who is arrested, no matter how minor (or how serious) the crime for which you are accused. Whether or not you are guilty, making a verbal or written confession can end up in a lot heavier penalty. If you are being questioned, the best thing to do is to “lawyer up.” Requesting a lawyer isn’t going to be held against you, it’s your right. If you suspect your rights have been violated during your arrest, be sure to discuss it with your attorney.

1) The Fifth Amendment to the Constitution – A part of the Bill of Rights, it protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to refuse to answer a question because the response could provide self-incriminating evidence of an illegal act punishable by fines, penalties or forfeiture.

2) Miranda Rights – You know you’re getting arrested when you hear the words, “You have the right to remain silent, as anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.” Named after an actual case (Ernesto Miranda v. Arizona in 1966), the defendant’s conviction was overturned because he had signed a written confession to armed bank robbery while in custody, without understanding he had the right of silence.

The Booking Process

Once you reach the jail you will be fingerprinted and your “mug shot” will be taken. Next you’ll be placed in a “holding cell” where you will wait to see a judge or magistrate (a local member of the judiciary having limited jurisdiction).

Outside Contact

You are entitled to make free phone calls (2-3 depending on the jurisdiction), and these should be used wisely. You’ll want to contact a trusted friend or family member and a bail agent who can run interference and obtain your release as soon as possible. If you can afford an attorney, that should be one of your calls.

First Appearance

In 1991 the Supreme Court ruled that holding a suspect beyond 48 hours without judicial review is unconstitutional; it must be shown that there is probable cause to continue to hold you. During this review the bail or bond issues are handled and you will also be assigned a public defender if you cannot afford an attorney.

Arraignment

When you have been charged with a crime, the arraignment is the date on which the actual charges are read and your plea is entered. Your lawyer will be present and explain the process to you and assist with your plea decision. Your case might now be dismissed, or if you plead guilty you may be sentenced; a trial date will be set for a not guilty plea.

Once bail has been set, there may also be non-monetary conditions added by the court in order to secure the defendant’s “pretrial release.”  These conditions may be considered necessary to prevent the accused from absconding (departing in a sudden and secret manner to avoid capture and legal prosecution), intimidating witnesses, endangering public safety, committing other offenses, or for the defendant’s personal protection.

The Bail Reform Act of 1984 stipulates that when the court releases a defendant before trial they will be subjected to the least restrictive conditions that will “reasonably assure their appearance as required,” as well as “the safety of any other person and the community.” Therefore, bail conditions cannot be more severe than is necessary and they must be clearly stated on the bail bond itself.  In some cases there may be no conditions that will adequately assure the accused will appear, or that public safety is guaranteed, and in this case the accused will be remanded to jail without bail to await trial.

Standard Bail Conditions

The judge, at his or her discretion, may set conditions about the conduct of a defendant while out on bail awaiting trial.  There are various types of conditions, which might require that the accused:

1. must report to police
2. must attend a rehabilitation or treatment program
3. must adhere to a specific curfew
4. must surrender their passport
5. must not contact the victim
6. must not contact witnesses (directly or indirectly)
7. must maintain current job or seek employment
8. must attend school
9. must not have any weapons in their possession
10. must not use drugs or alcohol – may include random testing
11. must not commit further offenses
12. must reside at a specific address
13. must remain within certain jurisdictions

Examples of Conditions

If a defendant is young and without supervision, or is new to the area, they might be required to keep up attendance at school or maintain their job and regularly report to a probation officer or bail agent.  The person to whom they report might also be requested to stay in close touch and possibly assist the defendant with arranging transportation to their appearances in court.

If there is a prior charge of failing to appear or a current disregard of conditions, the defendant may be ordered to “house arrest” and only be allowed leave with permission to go to school or work.  If the accused has a history of addiction, they may also be required to have counseling, attend AA meetings or participate in treatment.  With a domestic case, the defendant may be specifically prohibited from entering the house of the victim.

Bail is a choice, nobody can force you to accept bail and thereby live under the conditions the court has set. However, in order to get out of jail and enjoy your freedom in between the court appearances, you must abide by all of the rules dictated by the bail conditions.

Once bail has been set – either by the jail or a judge – the next step is coming up with either the full amount (in the case of a cash bail) or 10% (when using a bail bondsman).  The remaining 90% of the bail face amount must be secured by collateral, to ensure the bondsman can cover the bail if the defendant fails to appear.  The concept behind bail collateral is to provide additional liquid assets in exchange for the surety bond.

The initial 10% premium is a fee paid to the bond company in exchange for its guarantee to the court that the defendant will appear as ordered.  The premium is considered fully earned and nonrefundable once the bail agency has posted the bond on behalf of the defendant.

Forms of Collateral

Collateral can be in the form of additional cash, a credit card payment, mortgage deeds on real property or unimproved land, business equipment, automobile titles, jewelry, assignments on paper assets such as stock certificates or bank accounts, letters of credit, or any other saleable possession of value.  Some unusual forms of collateral have been an oil well (1987 in Oklahoma) and a church (2010 in Queens, NY).

All collateral is surrendered to the bail company until the defendant makes all the required court appearances and the bail is exonerated.  Titles, certificates and deeds are held in trust by the bail company (rather than the actual vehicle or other large item being held), while smaller items like jewelry are generally secured in a safety deposit box or vault.  Before collateral can be returned, any outstanding payments on the premium must be paid.

Whomever puts up the premium and collateral for the bond is called the indemnitor; this may be the accused themselves, or a friend or family member.  The indemnitor would remain responsible for the full bail amount if there is a failure to appear for all ordered court appearances.

What happens to my collateral if the defendant fails to appear?

Collateral is basically a security deposit, to ensure the bail company will not have financial loss. If the accused fails to appear, the collateral is of course at risk.  However, chances are usually excellent that the defendant is going to be found, arrested and brought back in front of the judge within an allotted time limit. If the timeframe is not met, bail may be forfeited and the full amount becomes due and payable to the court. As the indemnitor you would be given a chance to turn the collateral property into cash, especially when the value exceeds the bail.

Keep in mind that the bonding company is in business only to secure the release of the defendant and ensure their appearance in court on the date ordered. The bail agent doesn’t want your property, and would incur expenses moving forward to claim it. All efforts are put toward finding the defendant (with your assistance) and returning him or her to the court; once this occurs, the collateral would be released back to you.

After the bail amount has been set the bail bond process begins and that’s when you can help your friend or loved one “post bail.” Many people ask themselves, what determines the bail amount? Many times less serious crimes are bailable without going before the judge, and will be set from the “bail schedule” at the jail. The bail schedule is a guideline for common crimes and can include set amounts for traffic violations, misdemeanors, DWI (DUI) charges and even felony crimes like burglary or violent offenses. Each county has its own bail schedule that determines the bail amount. Here is an example, this is the 2012 bail schedule for the county of Los Angeles.

Ultimately, the judge has the last say as to whether or not bail is set and the amount of the bail. If the accused is charged with a minor offense, and they are employed and reside in the area, the judge may release them on their own recognizance with no bail required. Bail may also be lowered for a person with little financial resources.

The following background details about the defendant may affect the judge’s decision as to the bail and conditions that may be set:

1. Prior criminal record and their record of following court orders
2. Job and finances
3. Ties to family in the community
4. Length of time in the community
5. Property ownership in the community
6. Severity of the charges
7. Probability of conviction and potential sentence
8. Threat to public safety
9. Risk of flight and country of citizenship

Severity of Charges

Higher bail is likely if a serious crime is involved. If the crime was violent or severe (as in murder, kidnapping, drug sales, etc.) there is a low probability of bail; in this case the defendant will be remanded (no bail) to jail to await trial.

Prior Record or Warrants

If you have a criminal record the bail will be higher, but if the crime is serious as well then there may be no bail set. Things taken into consideration will be the number of your prior convictions, and their level of severity, as well as how recently they occurred.

If you have a record and have also had bench warrants, you are likely not going to have bail set. Since setting bail is all about your promise to appear as directed, bench warrants will send up a red flag about your reliability. If the warrant was for other reasons, or previously resolved legitimately, your defense counsel can argue the point during your arraignment to convince the judge to set bail.

As the first stage of a criminal proceeding, the arraignment is a formal court appearance before the judge. In some cases the defendant will “attend” by way of a video camera set up in the jail. The arraignment generally takes place within 24 hours following an arrest, the suspect was arrested on a weekend – in which case it will usually be scheduled for the next business day. Also known as a bond hearing or bail hearing, the arraignment is the time and place where bail will be determined.

There is no evidence heard during an arraignment, nor are witnesses called before the judge. The arresting officer is not required to appear, the defendant’s innocence or guilt is not determined at this time and, normally, the defense attorney will speak on his or her behalf. If no private attorney has been retained, the judge will inform the defendant of his or her right to legal representation and will, if needed, assign a public defender.

Formal Charges

A court officer will call the case out by docket number followed by the name of the accused, as in: “The People against John Doe.” The defendant will then be placed in front of the judge (in person or from the jail by video), with the defense attorney and prosecutor present. The detailed public reading of the charges is usually waived, in lieu of a short statement of the charges and a brief review of the specifics.

The Plea

After the charges are read, the defendant’s attorney will enter a plea on their behalf from the following choices:

Not Guilty – The defendant is stating they did not commit the crime for which they are accused; a pre-trial date will be set.

Guilty – The defendant is admitting guilt to the facts of the crime; the judge imposes sentence or remands them to jail awaiting the sentencing hearing.

Nolo Contendere (No contest) – Essentially this is a guilty plea, except that this plea cannot be used against the defendant in a civil lawsuit; the judge imposes sentence.

Mute Plea – If the defendant refuses to make a plea the court will enter a not guilty plea for them; a pre-trial date will be set.

Decision to Set Bail

During the arraignment, the judge will be deciding whether to release the suspect on their own recognizance (ROR), or remand him or her to custody without bail, or will set bail a bail amount and possible conditions. The prosecutor offers a statement with respect to bail; how much he thinks it should be and whether he feels the accused is a flight risk. If bail has been requested by the state, the judge will now ask the defense lawyer for a statement. His response will be to challenge the prosecutor or introduce more information on the side of his client’s release. After all parties have made their statements, the judge will decide, and this will be the end of the arraignment.

After Arraignment, What Happens to the Defendant?

If bail has been set, the bailiff will escort the accused back to a holding area or to the jail until bail has been posted. If the judge has chosen an ROR (Release on Recognizance), the defendant will generally be allowed to depart the courtroom, for the promise to return on the court date set. Depending on the state, the suspect may have to return to the jail until the ROR has been processed.

Depending on whether you pay cash (for the total bail amount) or have a bail agency post the bond for you (a small percentage of the bail pays for a surety premium), the cost of bail can vary quite a bit.  In some cases bail is extended according to the jurisdiction’s bail schedule, which lists the most common types of offenses and defines the minimum bail amount for each charge.  More often, the judge will set the bail amount during the arraignment hearing, where other factors will be taken into consideration (such as severity of the crime, residency, employment, risk of flight, etc.)

How is the Bail Amount Set?

Each state’s Department of Insurance oversees the bonding industry within its borders, and defines the maximum percentage allowed for bond premiums.  In California, the standard premium is 10% of the face amount of the bail and there is also a bond fee of $15 per bond; i.e. if bail is set at $5000, then the premium is $500 plus $15 or $515.  Bail Hotline offers an 8% premium for clients who are union members, active members of the military, or have retained private counsel.

Though the actual bail amount is set by the court, you may be able to request a lower bail amount if you cannot afford the premium or face amount – depending on the state.  The Eighth Amendment (adopted as part of the United States Bill of Rights in 1791) prohibits the government from imposing excessive bail, excessive fines, or cruel and unusual punishment.

How Can Bail be Paid?

Sometimes the bail is “cash-only” and must then be paid in cash directly to the jail; otherwise a personal check is acceptable.  You might be able to pledge your home as collateral instead of cash, but there must generally be value of 2x the bail amount (this process could also take several days or weeks, as opposed to a matter of hours).  If you cannot pay the face amount of your bail in full, then a bondsman is your best option.  Bail companies charge a premium for providing a surety bond for your release; basically they are guaranteeing you will appear in court on the date stipulated.

The bail premium is nonrefundable after the bond is posted and accepted by the court system; at this point the bond company has liability and the premium is considered to have been fully earned.  The premium is good for one year, and must be paid again if the case goes longer. The bail can be handled by an out-of-state friend or relative, with faxed contracts and a credit card or wire transfer.

Bail Hotline offers flexible payments plans and payment options if you cannot afford the full premium to post bail, and we can work wih you to meet your specific requirements.  Keep in mind that if you do pay your bail in full, rather than securing a bail bond, the court may deduct court fees, fines, and even reimbursement for its public defender expenses before refunding the balance.  Statistically speaking, the fees and fines tend to be lower in cases where bonds are posted.

When Is a Bail Bond Exonerated?

After the legal process is finished, the bond is exonerated.  This means that the defendant is released from the obligation to appear or otherwise follow the court’s directives – which were promised as a condition of release.  The guilt or innocence of the defendant has no bearing exoneration and the bail balance is then released to whomever is named on the bail receipt.  Any payments still owed on the bond premium are still due to the bail agency.

How Does Forfeiture Occur?

When a defendant fails to appear in court as directed, a forfeiture of the bail takes place and a bench warrant is issued for their arrest. In some cases it may be possible to reinstate the bail bond if the defendant works through the bondsman or an attorney to set a new trial date.  There is generally 30-90 days to reinstate the bond or return the defendant to court. If the deadlines have passed, the court will issue a summary judgment and the total face amount of the bail must be paid.

Though these two agents sometimes work together, there are big differences between them. Bail bondsmen and bounty hunters (aka fugitive recovery or bail enforcement agents) are at times confused with one another, but they each move in their own unique circles and are regulated in completely different ways.

The 1873 Supreme Court trial of Taylor v. Taintor is cited as the origin of the law that a person into whose custody a defendant is remanded as part of the bail process has “sweeping rights” to that person. When a suspect “jumps bail,” this is the time when these two professions will interact, ultimately to bring the defendant back in front of the court and assure the bail is voided instead of forfeited.

What is a Bounty Hunter?

Specializing in capturing fugitives, these recovery agents are paid a monetary reward (bounty) for their services of locating, arresting and detaining. They are in most cases employed by the bondsman, are usually paid around 10% of the bail premium and are not responsible for the fugitive’s bail in any way. Bounty Hunters claim to catch about 90% of defendants who fail to appear. {Rachel Clarke (June 19, 2003). “Above the law: US bounty hunters“. BBC News. http://news.bbc.co.uk/2/hi/americas/3003886.stm.}

Depending on varying state laws, bounty hunters can enter a fugitive’s private property without a warrant to arrest them (though they cannot pursue a defendant into another’s home without that owner’s permission or a warrant). They are generally asked to train and test with firearms, handcuffs, tasers, and other powerful weapons and protective vests. Some states do not require formal training or even a license, only the bondsman’s sanction to operate – however many states have legal requirements that leave an out-of-state bounty hunter powerless in pursuing a fugitive across their borders.

Texas requires a bounty hunter to be a peace or security officer or private investigator; Louisiana requires special clothing to identify themselves as such; Kentucky prohibits any form of bounty hunting, and the state doesn’t have a system of bail bondsmen, so only a peace officer can make an arrest – the variances are endless. Crossing into another country can cause a bounty hunter to be arrested for kidnapping; one example was when TV star “Dog” Chapman was arrested after going into Mexico to capture Andrew Luster, the infamous millionaire rapist and fugitive. Dog was released and he then returned to the U.S., only to be declared a fugitive himself and subsequently arrested for extradition back to Mexico.

What is different about a Bail Bondsman?

A bail bond company is licensed by each state’s Department of Insurance – to write contracts, post surety bail bonds to release defendants from jail, and handle various forms involved in allowing a defendant freedom until their assigned court date. The bail agent guarantees to indemnify the surety (insurance company) in case of forfeiture of the bail (for failure of the defendant to appear). Though a bail agent might go to a jail with papers to sign, they are typically not armed nor do they go out searching for a bail jumper to arrest.

Familiar with the local workings of the criminal court system and its regulations, the bond company can be instrumental in securing a more rapid release of an incarcerated suspect. Because the courts save money when working through professional bondsmen, it is typical to find lower fines and before refunding the balance; they also might deduct payment for public defender fees as well.