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Criminal Defense 101 – What is Bail?






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Mar 17, 2011

Criminal Defense 101 – What is Bail?

There are often many questions surrounding the issue of bail. The most common question is: “what is bail?” Bail is either cash or real-estate that you put up guaranteeing two things. Number one, that you will appear for all your future court appointments and number two, that you’re not going to commit any new crimes. Real estate is commonly referred to as surety bail. So, for example, the court may order, $1000 cash or in the alternative, $5000 surety. It’s usually about a 5 to 1 ratio between surety versus cash.

If you don’t have the money to bail out but you have real estate, a member of your family will need to register a lean for the surety amount against the property. The lean is registered with the registry of deeds. There must be enough equity in the home to cover the surety amount and if you violate your bail conditions, forfeiture of bail will be triggered.

The next commonly asked question is: “who sets bail”? One of two people will set bail; either the bail commissioner for which you pay a $60 fee on top of the bail amount set or a judge. No one else is authorized to set bail. The judge can be a district court judge or a superior court justice.

Now, what happens if you don’t like the amount of bail that was set and you can’t afford to post it? Well, you have a right to a de novo appeal of the bail to a superior court justice. The superior court justice will hear a fresh bail argument and then that judge is free to do one of three things; reduce the bail amount, leave the bail the same, or increase the bail amount.

Another commonly asked question is: “what do the bail conditions mean”? Generally, a bail bond will include conditions such as: no new criminal conduct and oftentimes require you to give up your right to remain free from unreasonable searches and seizures. That means in many cases the police will be able to search you, your home or your vehicle without any probable cause or articulable suspicion that a crime has occurred. Just by virtue a being on bail conditions you can be searched. This is very important and for most people extremely distressing. It is highly disruptive to your lifestyle, your family and to your own personal peace of mind. In most cases, your attorney should seek to amend the bail conditions of the bond.

Another commonly asked question is: “will bail be set in my case”? Bail is almost always set in a criminal case. It could be PR bail which stands for personal recognizance or there could be a cash component to the bail. Personal recognizance means you are giving your word to appear in court for all future dates and that you adhere to any conditions imposed by the court or bail commissioner. Your bail could be unsecured bail which means that, while you’re not posting money, if you were to violate your bail conditions you would be required to pay the amount of unsecured bail as a penalty as well as any new bail amount set by the court if you want to get out of jail before your trial.

Finally, how can bail be revoked? Your bail can be revoked — normally it happens if you’ve committed a new crime — but it could happen if you’ve done something that we all like to do on the weekends, and that is consuming alcohol. If your bail conditions specifically state or prohibit you from the possession or the use or the consumption of alcohol and you’re out with a few friends at the bar and decide to have a couple of beers, you risk being arrested and being charged with a new crime.

The best thing to do if you have questions about your bail is to speak with your attorney so that you are fully informed and aware of what conditions of bail you are subject to. Your attorney can also speak with you about modifying your bail if you desire.



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