Questions about posting bail?
Recently, I was asked why a person couldn’t be bailed out of jail. The follow-up question was, “I thought you were innocent until proven guilty?”
You’re right – there is the presumption of innocence in almost every aspect of criminal law, but when it comes to setting bail, the judge considers the charges to be true.
Even with no prior criminal history, a person may not be able to post bail. With a criminal history, other reasons may exist.
How is bail set?
The number one priority listed in the Penal Code is the safety of the public. (See Penal Code 1275) Most people think it’s to make sure somebody shows up to court. True, that’s a component, but public safety is the primary purpose of bail. Of course, if a person has a long criminal history, especially a history of failing to appear (FTA) in court, that can increase the bail the judge sets.
Only a few situations exist where somebody can be denied bail. Capital murder, for example is a “no bail” situation. If the person is alleged to have violated their felony probation, they can be held “no bail” as well. Other times, bail is set, but there can be a hold where the person cannot post the bail and get out. Under Penal Code 1275.1, there can be a requirement that before posting bail a person must prove that the source of the money to be used to post bail comes from legitimate sources. For example, under the law a person shouldn’t be able to rob a bank and then use the stolen money to post bail. Same thing with certain other cash-based offenses (drug cases, pimping and pandering, embezzlement, etc.).
Then there are “holds”. If a person was on parole at the time of an offense, they can be held on a parole hold and cannot be bailed out. Similarly, if there is an immigration hold or a hold from another county for another case, that can lead to an inability to post bail.
So yes, a person is entitled to bail. The specific charges, allegations and entire situation must be assessed. But a defendant is entitled to reasonable bail and is entitled to a bail review by a judge to determine what the true amount of the bail should be… or if they should even be required to post bail at all.
To discuss your Orange County criminal matter – or to discuss how to bail somebody out of jail if possible, contact me –