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What is Bail?

Posted by Richard Wagner | Dec 03, 2022

What is Bail?

In more serious misdemeanor and felony cases, you have to post bail or stay in jail pending the outcome of your case. However, in the most serious cases, the court can deny you bail. These are capital crimes or those cases where the judge determines your release would result in great bodily harm to others, offenses involving an act of violence, and certain sex crimes. Article 1, Section 12, of the California Constitution.

dwi lawyer drunk driving ticket

Notice to Appear

In most misdemeanor cases, the police officer issues you a notice to appear. It lists the California Code sections the officer believes you have violated. This notice to appear or citation also gives you the time, date, and address of the court where you must go for your first court appearance (arraignment). By signing, you promise to appear on that date and time. You will remain free until your arraignment. However, beware that your status can change at the arraignment (or subsequent court dates) depending on the charges. For example, in Orange County, California, if you get arrested for a second DUI, the police may release you with a notice to appear. However, when you appear at your arraignment, the Orange County District Attorney will ask the judge to set bail.

How Much Is Bail?

The amount of bail is usually set using the county bail schedule. The bail schedule is like a menu, listing the offenses and a suggested bail amount. For example, bail for a first-offense DUI in Orange County is $2500. Bail for a first-offense DUI in San Bernardino County is $25,000. Bail for a first-offense DUI in Los Angeles County is $5,000. Bail for a first-offense DUI in Riverside County is $3,500.

If bail has not already been set, at your arraignment, the DA asks the judge to set bail. The judge reviews the charges and sets bail in an amount deemed sufficient to ensure you appear at your future court dates and to protect public safety. The prosecution or the defense may argue to deviate from the bail schedule (including the defense attorney asking for an O.R. release) based on aggravating or mitigating factors.

How Do I Post Bail?

You, or someone on your behalf, may use state or U.S. government bonds or may give equity in real property as security.

You can pay the bail amount yourself. For example, in Orange County, funds for bail may be paid in cash, bank cashier's checks, personal checks, money orders, and traveler's checks. However, bail for certain people must be paid in cash or check only.  At the end of the case, you will get this money back. Although the money could be used by the court to pay a fine or satisfy a judgment.

The most popular way is to work with your lawyer who knows a good bail bond agent.  The money you pay to obtain the bond is designated as a nonreturnable fee.

In a landmark bail case, the California Supreme Court held judges can't impose money bail unless no less restrictive conditions of release can reasonably satisfy flight or public safety concerns and that before setting any bail, a court must consider a defendant's ability to pay.  

Less restrictive conditions may be a curfew, or electronic monitoring (“house arrest” or “home detention”). In serious DUI cases when clients have prior DUIs, bail or release conditions can include Secure Continuous Remote Alcohol Monitor (SCRAM) and attendance at self-help (AA) meetings.

Furthermore, before deciding to imprison you before your trial, the court must find by clear and convincing evidence that no condition other than pretrial incarceration would reasonably protect the state's interests. In In re Humphrey (2021) 11 C5th 135, 143.

Clear and convincing evidence means a high probability, based on evidence so clear as to leave no substantial doubt, and sufficiently strong to command the unhesitating assent of every reasonable mind. In re Nordin (1983) 143 CA3d 538, 543.

You are entitled to a bail review hearing within 5 days. California Penal Code Section 1270.2.

Do I Get Credit For Time I Served In Jail?

You are entitled to 1 day of credit subtracted from any jail sentence for each day of presentence custody. Penal Code Section 2900.5(a).

You are also eligible to earn conduct credits (“good time-work time” credits or “time off for good behavior”) subtracted from your sentence. Penal Code Section 4019.

However, there is no official way to calculate these types of credits. For every 4 days served, 2 days are deducted. For example, if you are ordered to serve 180 days in the county jail, you will be released after serving 90 days.

Many county jails like the Men's Central Jail in Los Angeles are overcrowded, so additional credits are awarded to alleviate this problem. Unfortunately, the Orange County Jail does not have this problem.

About the Author

Richard Wagner

Attorney Profile Defense Lawyer Richard Wagner upholds and defends freedoms and liberties enshrined in our United States and California Constitutions.  “Richard was able to achieve an even better outcome for my case than what we initially thought was possible. I couldn't be more grateful to h...