How Bail/Bond Works in Criminal Defense Cases

In every case, federal or state, there is the issue of release and whether one is entitled to a bail bond.  Sometimes you may be in custody and other times you may be out.  The question we repeatedly hear is: “how does bail work?

How does bail work in federal criminal cases?

In federal criminal cases, the Bail Reform Act, 18 U.S.C. §§ 3141–3156, governs release or detention determinations in federal court.  The court has four alternatives in setting bail, and may (1) release the defendant on personal recognizance, (2) release the defendant on specific conditions, (3) temporarily detain the defendant to permit revocation, or (4) detain the defendant.  The government must prove by a preponderance of the evidence that no conditions of release will reasonably assure that defendant’s presence at future court proceedings.  The factors considered by federal court in bond determinations are essentially the same as those considered in state court (Minn. R. Crim. P. 6.02).

How does bail work in state criminal cases?

In state criminal cases, unless you are charged with First Degree Murder, you have a constitutional right to an unconditional bail.  In the vast majority of state misdemeanor cases, bail is never imposed; sometimes conditions of release will be imposed.  Gross misdemeanor and felony charges almost always have some monetary bail imposed.  Most gross misdemeanors and felonies are a toss up and usually depend on the prosecutor and judge.  If you are in custody at the time of your first appearance, there must be a bail hearing so your lawyer can argue conditions of release.  The judge must set unconditional bail as well as conditional bail, or release you on your own recognizance.  Depending on the case, the conditions can be extremely easy or extremely onerous.

Theoretically, bail is used to ensure your appearance in court.  The judge considers factors to determine whether you are a flight risk or a danger to the public.  Some judges believe that public safety is not meant to be an element in setting bail, but most do.  The main elements are your connections to the community (owning a house, family, friends, community involvement), ability to flee (ownership of a plane, passport, lots of money, connections in other parts of the state, country, or world), and likelihood to flee (prior bench warrants issued, prior failures to appear, prior fleeing offenses).  The Court will also take into consideration your financial resources, your criminal history and history of warrants, and the nature of the charge.

How does unconditional bail work?

Unconditional bail means that there must be no conditions (although usually the judge still imposes conditions of making your court appearances and remaining law-abiding—failure to do either of these may result in your arrest and increased bail or release conditions).

How does conditional bail work?

Conditional bail means that bail itself is limited but there are certain conditions to assure your appearance in court.  Conditions could be staying away from a certain location or person, random drug or alcohol testing, no use or possession of alcohol or drugs, staying away from establishments that serve liquor, not leaving the State of Minnesota, etc.  Though some conditions are typically imposed in every case (make court appearances, stay in contact with your criminal defense attorney, remain law-abiding), others are unique to each case.

The judge could also release you on your own recognizance.  This means that there are no conditions except making your future court appearances.

Whether bail is imposed (or asked for by the prosecutor) depends on the county and the prosecutor.  Some prosecutors ask for bail or conditions because it is their routine, no matter what the case or circumstances suggest.  Others seriously look at the case and the circumstances and make independent determinations as to whether bail should be imposed.

Even if you are out of custody for your first appearance, the judge can still impose bail if the case is extremely serious or the judge feels you are a flight risk (ridiculous given the fact you personally appeared in court).

How does bail work in DWI cases?

Minnesota Statute section 169A.44, subdivision 1, governs conditions of release in gross misdemeanor DWI cases, and it is assumed that $12,000 bail will be set or you will be required to be on an alcohol monitor.  Sometimes the prosecutor doesn’t ask for this, but many will, even if you’ve shown up for court.  Some judges will impose it but others believe that it only applies if you’re in custody at the first appearance.  It simply depends on the prosecutor and the judge.

What do I do if bail is imposed?

If bail is assigned, there are two ways to post it.  Assume the bail is set at $30,000 unconditional bail and $10,000 conditional bail with the conditions of staying in contact with your criminal defense attorney, no use or possession of alcohol and drugs, appear in court, random testing, and staying away from your significant other’s residence.  You can choose either way to post.  If you don’t think you can abide by the conditions, it’s probably better to post the unconditional bail and not worry about violating the conditions.  So, this means you’re dealing with $30,000.  If you have the money, you can pay the court the $30,000.  When your case is resolved, you get the $30,000 back (usually minus the fees and fines imposed at sentencing, assuming you’re convicted).  The other option is post using a bondsman.  This way you pay the bondsman 10% of the bail, so $3,000 in this case, which is the commission the bail bond company makes for assuming responsibility that you will appear in court.  You may also have to sign collateral to the bail bond company should you leave the country requiring the bail bond company to forfeit the bail to the court.

Regardless of your conditions of release, you need an excellent Minnesota Criminal Defense Attorney to fight on your behalf.  We have had success in every type of criminal case, including homicide cases where we once convinced the court to reduce the bail from $1,000,000 to $100,000, thereby saving our client $90,000 and allowing her to get out of custody. Call today for a free consultation – (612) 436-3051!