The judge has
discretion over bail, but what happens before you see the judge? How is bail determined
before you go to court? Is the bail likely to increase, decrease, or stay
the same when it does go to court?
If you were arrested, you need to understand the fundamentals of bail,
booking, and concept of being over-booked. The more you know, the more
money you may be able to save on bail. Below, our firm discusses the bail
process, the common injustice of over-booking in regards to bail, and
how a lawyer can possibly get bail reduced to save you money.
After an arrest is made, for certain crimes, a person may not be released
from jail pending trial unless money bail is paid to the court. The amount
of bail required varies on a case-by-case basis, but the process of determining
bail in every case remains the same.
The booking process is when, after the arrest, the officer at the jail
enters into the system what crimes you were arrested for, i.e. what crimes
he or she believes you to have committed. As you can read more about
here, these allegations you are booked for do not necessarily reflect the charges
that will actually be filed, as police do not make that determination.
Most counties have bail schedules. For example,
the Alameda County Bail schedules can be found on
the Court of Alameda’s website. The bail schedule instructs the jail how much bail to demand based on
the charges under which the person was booked.
For instance, per the Alameda County bail schedule, felony domestic violence
has a bail of $50,000. Thus, if you were arrested for felony domestic
violence in Alameda County, you can expect bail to be set at $50,000
before you go to court and see the judge.
In this way, neither the jail nor the police have discretion over bail
in the same way that courts do.
When a Judge Determines Bail
Once the case is before the judge, the judge can raise or lower the bail
based on the arguments made by counsel. For instance, the DA may argue
bail should be increased above schedule based on the defendant’s
history of failures to appear, history of criminal acts, lack of ties
to the community, or particular egregiousness of his or her case.
Similarly, the defendant’s attorney can argue that bail should be
reduced based on the defendant’s lack of failures to appear, nonexistent
criminal history (or perhaps only very
little or very
old criminal history), significant ties to the community, difference between
the charges at booking compared to the charges actually filed, or because
the nature of the case as alleged is relatively minor or mild compared
to most other cases which allege the same type of violation.
Let Our Firm Help You
In 2018, our
criminal defense attorneys at the Law Office of Ivan O.B. Morse made similar arguments before the
court resulting in our client’s bail being reduced from $200,000
to $45,000. In another case, comparable arguments resulted in bail being
reduced from $110,000 to O.R. (meaning $0).
How Police Exercise Discretion Over Bail
Although the judge gets the
final say regarding bail, for several days before the case goes to court, it
is the police who have inordinate control over the amount of bail. Although
bound by the bail schedule, police decide which charges, and how many,
to book an individual under (again, these are not necessarily the charges
that will actually be filed). It is not uncommon for police to book heavy-handedly
by booking people under every duplicative and farfetched theory of the
crime they can imagine. This “over-booking” can make the bail
unfairly high, at least until the case goes to court.
For example, in a case where a man was accused of resisting arrest, eight
police officers allegedly participated in trying to subdue him. When he
was booked, he was booked under eight counts of resisting arrest, with
$20,000 bail for each of them, totaling $160,000. When he appeared in
court, days later, the prosecutor charged him (more fairly) with only
one count of resisting arrest, and the judge therefore lowered the bail
respectively to $20,000 total.
In another case, a man was booked under two counts of felony robbery, one
count felony domestic violence, and one count of misdemeanor vandalism,
for a total of $150,000 bail. When he went to court, the prosecutor had
charged the man with only misdemeanor vandalism, believing the facts as
alleged in the report did not constitute a robbery or a battery. The man
was given O.R. (bail reduced to $0) by the judge in court.
Knowing Your Rights
Why does this matter? It matters because if you contract with a bail bond
company, the price you pay them is based on the amount of the bail (usually
10%), and if that bail later goes down, the bond company is not likely
going to refund you the difference. That is to say, in the last example,
the man would have saved $15,000 of his own real money if he stayed in
jail a few days until his court date without bailing out. Of course, jail
is awful, and he didn’t know that, and there was also no guarantee
bail would not simply remain $150,000 after going to court.
Another way in which the practice of over-booking can affect an individual,
is it can extend the amount of time the person has to wait to be eligible
to have their
arrest record sealed. If a police officer decides, in his or her discretion, to book a suspect
under a felony domestic violence charge, rather than of a misdemeanor
domestic violence charge, the one-year waiting period to seal the arrest
record would be extended to three years.
Finally, the charges you are booked for may remain on your arrest record history
forever, even if that charge is never filed. Say, for example, a person is arrested
on suspicion of
DUI and Driving on a Suspended License. After the arrest, their blood is drawn
and shipped to the lab for testing. If that driver’s blood comes
back clean, and the DA therefore charges the individual only with Driving
on a Suspended License, the arrest record will
still continue to reflect Driving on a Suspended License
and DUI, despite the DUI charge never being filed.
In the above situation, our firm could actually bring a Petition under
Penal Code section 851.8 which, if successful, would remove the DUI information
from the arrest record. A petition under P.C. 851.8 must be brought within
two years of the arrest.
If your loved one is in custody with a high bail, you could perhaps save
thousands of dollars by retaining our firm to argue for a bail reduction
in court before bailing them out.
Additionally, if your arrest record needs fixing because you were over-booked
on charges that were never filed, as discussed, we can assist with that as well.
Contact the Law Office of Ivan O.B. Morse
for a free consultation today.