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Senate Bill 10 Is Unconstitutional For Misdemeanors

California Senate Bill 10, Bail Reform, signed by the governor, takes effect October 1, 2019. In my opinion, SB 10 violates the Eighth Amendment to the U.S. Constitution, and the California Constitution which states that defendants are entitled to reasonable bail.

The U.S. Supreme Court long ago declared in Hudson v. Parker, 156 U.S. 277, 15 S. Ct. 450, 39 L. Ed. 424 (1895) the “statutes of the United States have been framed upon the theory that a person accused of crime shall not, until he has been finally adjudged guilty in the court of last resort, be absolutely compelled to undergo imprisonment or punishment, but may be admitted to bail.”

Pretrial release permits the unhampered preparation of a defense and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Article I, section 12, of the California Constitution establishes a person's right to obtain release on bail from pretrial custody, prohibiting the imposition of "excessive bail.” The Eighth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, prohibits setting bail in an excessive amount. The offense with which the defendant is charged is not a crime for which bail is prohibited under the state Constitution. As such, the defendant is statutorily entitled to bail "as a matter of right." (Pen C §1271)

The California Supreme Court has held that, in misdemeanor cases, the defendant has a right to O.R. release “unless the court makes a finding upon the record that an [O.R.] release will not reasonably assure the appearance of the defendant as required,” In Re York (1995) 9 Cal.4th 1133, 1138 fn. 2; Penal Code § 1270, subd. (a). It was long ago held that the California Constitution is violated where dangerousness of the accused, rather than likelihood of the accused to appear in court, is employed to set or raise bail in misdemeanor cases, In re Underwood (1973) 9 Cal.3d 345, 349-351.

SB 10 precludes immediate release on bail for the following misdemeanors:

  1. Domestic Battery with Injury
  2. Domestic Battery without Injury
  3. Violation of Protective Order if:
    • Allegation includes threats to kill or harm the protected party; OR
    • Allegation includes violence against the protected party; OR
    • Allegation includes going to residence/workplace of protected party
  4. Stalking
  5. Third DUI Offense, or More
  6. Any DUI with Injury
  7. Any DUI with 0.20+ BAC
  8. Any offense, if person is a 290 Sex Offender Registrant
  9. Any offense, if person has prior Violation of Protective Order
  10. Any offense, if person has 3+ warrants for FTA’s (last 12 months)
  11. Any offense, if person is pending trial OR sentencing in another case
  12. Any offense, if person is on formal probation
  13. Any offense, if person “has intimidated/dissuaded/threatened wit/vic”
  14. Any offense, if person has violated any pretrial release (last 5 years)
  15. Any offense, if person has prior Serious/Violent Felony (last 5 years)

If you have been arrested in California and were not eligible for Misdemeanor Bail, contact our office for help with posting Bail. For further information, speak to one of our Dublin criminal defense attorneys by calling (925) 452-4065.

Stay tuned for more blogs. In our upcoming posts, we will be discussing felony bails.