Bail and Jail, What You Need to Know

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

It's 3:00 a.m. and you're awoken from a deep slumber by the irritating ring of your cell phone. A dear friend desperately needs your assistance because he's been arrested for a state offense. While hearing words like "bail" and "jail" in your sleep-deprived state, you attempt to convince yourself that you're still dreaming. Unfortunately, this isn't a dream and you don't have a clue of what to do next.

In many criminal cases, an accused is required to post a bail bond in order to be released from custody. Most crimes carry a "standard bond" amount. For example, the standard bond amount in Miami-Dade County for a person arrested for DUI is $1000. Someone arrested for Aggravated Battery must post a $7,500 bond. An offender accused of Grand Theft First Degree, involving an amount over $10,000 but less than $20,000, will need to post a $10,000 bond to secure their release.

In certain cases, defendants must make an appearance before a judge who will first determine if bond is appropriate, and then sets the amount of the bond. The court determines the bond amount by considering, amongst other factors, the defendant's potential danger to the community and/or whether he is a risk of flight. Some serious offenses are deemed "non-bondable" and thus, a defendant is unable to bond out immediately. Defendants charged with domestic violence offenses are also unable to bond out immediately. By law, they are required to appear before a judge prior to leaving custody.

Those seeking release from jail typically contact a bail bondsman. By agreeing to post the bond, the bondsman and/or his company guarantee that the defendant will appear in court, every time required, until the case is resolved. If the defendant fails to appear in court after being properly notified by the clerk, then his bond amount may be forfeited.

In order to secure the assistance of a bondsman, the cost to the state court defendant is typically 10% of the total amount of the bond. The federal defendant typically pays 15%. Additionally, bondsmen often require collateral in the form of cash, deeds, and/or other property etc., to protect the surety in case the defendant fails to appear in court as required.

A defendant is not required to use a bondsman. They may direct someone to go to the jail with the full amount, and post the bond. The money will be returned to the depositor only after the case is closed.

The Eighth Amendment of the United States Constitution prohibits excessive bail. Courts have deemed a bond amount "excessive," when judges set the amount higher than an amount reasonably calculated to ensure that the defendant will appear in court after released from custody, stand trial, and submit to a sentence if found guilty. In order to successfully challenge a bail amount as excessive, the moving party must first move for a reduction of the bond amount. Only after the request for a reduction is denied by the trial court may the defendant take an appeal.

Frequently, I am the one who receives the call at 3:00 a.m., after someone else is awoken, by someone else wanting to get out of jail. I advise the caller to immediately contact a bondsman. I stress to them that they must contact a bondsman who is reputable. A highly regarded bondsman will check the computer system to identify the charge(s) and location of the inmate, and then make arrangements to secure the defendant's release as soon as possible.

Mark Eiglarsh is a former prosecutor who concentrates his practice on State and Federal criminal defense and forfeiture matters. An "AV Rated" attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at Mark@EiglarshLaw.com. His web address is www.EiglarshLaw.com.