Bail

Bail and O.R. Release

Bail must be set no higher than is reasonably necessary to ensure the defendant's appearance at future court proceedings. It is not a means to punish prematurely those who have not been convicted of a crime. Notwithstanding this, when determining the appropriate bail, the Court must assume that the facts alleged by the prosecutor (i.e., in the police report) are true. Still, any person who has been arrested for or charged with a non-capital offense is entitled to be released on his or her own recognizance, unless the court makes a finding on the record in accordance with Penal Code § 1275 that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. If such a finding is made, the court must set bail.

When Can an Accused get an O.R. Release?

Oftentimes a defense attorney can secure the pre-trial release of an arrested defendant on his own recognizance ("O.R."), or promise to appear. In such cases, even where bail has been set by the arresting agency, the defendant is immediately released with no outlay of money, and there is no need for any bail bond. Other times, a motion for reduction of bail or O.R. release can be made in court, either at arraignment (a couple of days after arrest), or shortly thereafter, or at other times during the pendency of the case as appropriate.

Factors Used to Determine Conditions of Pre-Trial Release from Custody

Two factors - risk of flight and risk of danger to the community- are at the heart of every bail review. The making of the motion for bail reduction or O.R. release serve both to secure the pre-trial release of the defendant, as well as to humanize him, as part of the overall defense strategy.

Flight Risk

Facts such as the defendant's substantial ties to the community (how long and where he resides, works, and/or attends school), family ties, his record of past court appearances (lack of prior failures to appear), all indicate that the defendant is not likely to jump bail and flee the jurisdiction. Moreover, retention of counsel is a further important indication that he intends to stay and answer to the charges. Courts recognize that the fact that someone hires an attorney logically suggests that he does not plan to flee.

Danger to the Community

Whether the defendant poses a risk to the safety of the community is less a question of the past history of the accused (although there are exceptions) and more a question of the crime charged. Since for the purposes of bail only, the defendant is presumed guilty, crimes of violence and multiple DUI's will concern a Court. In such cases, an offer of some additional conditions of release, like house arrest or AA meetings, are helpful to ally the Court's fears.

Generally, the prosecutor need not be given any notice or opportunity to participate in a decision to grant an O.R. release. The exception to this rule is that before any person who is charged with certain specified felonies may be released on his own recognizance, the prosecutor must be given a two-court day notice and a hearing must be held in open court, at which the prosecutor is allowed to participate. However, even in those most serious cases, if the O.R. release motion is made at the defendant's arraignment (first court appearance), there is no need to comply with the two-day notice requirement, because it is reasoned that the prosecutor would already be prepared to address the issue.

A skilled attorney can literally save her client tens of thousands of dollars and needless incarceration when an arrest has been made.

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