Orange County Bail Bond Frequently Asked Questions
How does the bail process work?
What is Bail?
When talking about bail, what do you mean by the
term undertaking?
Must you always use a bail bondsman?
What is the purpose of bail?
Is bail a matter of right?
Does the bail bond continue forever, can you get
it back?
What if the defendant absconds?
In what instances will the bail be forfeited?
If the defendant does not appear and the court orders
a forfeiture, can it be set aside if he later appears?
If the defendant has absconded, what must the bail
fugitive recovery person be able to show? Is that person a bounty hunter?
What if the underlying criminal charge is dismissed?
When can bail be increased?
What else may happen when a defendant fails to appear?
What is an immigration bond?
What is a bail bond indemnitor?
How does the bail process work?
Posting of a bail bond. This process involves a contractual undertaking
guaranteed by a bail agent and the individual posting bail. The bail agent
guarantees to the court that the defendant will appear in court each and
every time the judge requires them to.
For this service, the defendant is charged a percentage of the bail amount.
Before being released the defendant or a relative or friend of the defendant,
typically contacts a bail agent to arrange for the posting of bail. Prior
to the posting of a bail bond, the defendant or a co-signer must guarantee
that they will pay the full amount of bail if the defendant does not appear
in court.
Typically, a family member or a close friend of the defendant will post
bail and cosign. Collateral is not always required for a person to be bailed
from jail. Often a person can be bailed from jail on the signature of a
friend or family member. Cosigners typically need to be working and either
own or rent a home in the same area for some time.
After an agreement is reached, the bail agent posts a bond for the amount
of the bail, to guarantee the defendant’s return to court.
If the defendant "skips", the cosigner is immediately responsible
for the full amount of the bail. If the defendant is located and arrested
by the bail agent the cosigner is responsible for all expenses the bail
agent incurs while looking for the defendant.
What is Bail?
The term Bail is used in several distinct senses: (1) It may mean the security—cash
or bond—given for the appearance of the prisoner. (2) It may mean the
bondsman (i.e., the person who acts as surety for the defendant`s appearance,
and into whose custody the defendant is released). (3) As a verb, it may
refer to the release of the defendant (he was bailed out). The first meaning
is the most common and should be employed for clarity.
Admission to bail is the order of a competent court that the defendant be
discharged from actual custody upon bail. The discharge on bail is accomplished
by the taking of bail (i.e., the acceptance by the court or magistrate of
security—either an undertaking or deposit—for the appearance of
the defendant before a court for some part of the criminal proceeding).
Bail is evidenced by a bond or recognizance, which ordinarily becomes a
record of the court. The bond is in the nature of a contract between the
state on one side and the defendant and his sureties on the other. The agreement
basically is that the state will release the defendant from custody the
sureties will undertake that the defendant will appear at a specified time
and place to answer the charge made against him. If the defendant fails
to appear, the sureties become the absolute debtor of the state for the
amount of the bond.
When talking about bail, what
do you mean by the term undertaking?
An undertaking is a permissible type of bail security. The taking of bail
consists of a competent court accepting an undertaking of sufficient security
for the appearance of the defendant, according to the terms, or the surety
will pay a specified sum to the state. Corporate sureties are commonly used,
and the court will accept an admitted surety insurer`s bail bond if executed
by the insurer`s licensed bail agent and issued in the insurer`s name by
an authorized person.
Must you always use a bail bondsman?
The defendant, or any other person, may deposit the sum mentioned in the
bail order or bail schedule. Cash is accepted, and it is the practice for
each court to adopt a written policy permitting acceptance of checks or
money orders, upon conditions that tend to assure their validity, in payment
of bail deposits. Some courts have a maximum amount over which a personal
check will not be accepted. Depending upon the jurisdiction, government
bonds may be accepted.
What is the purpose of bail?
5The purpose of bail is to assure the attendance of the defendant, when
his or her presence is required in court, whether before or after conviction.
Bail is not a means of punishing a defendant, nor should there be a suggestion
of revenue to the government.
Is bail a matter of right?
Although the right to bail has constitutional recognition in the prohibition
against excessive bail, bail is not always a matter of right. However, with
certain exceptions a defendant charged with a criminal offense shall be
released on bail. Persons charged with capital crimes when the facts are
evident or the presumption great, are excepted from the right to release
on bail. However, a defendant charged with a capital crime is entitled to
a bail hearing in the trial court to determine whether the facts are evident
or the presumption great. A crime is a capital offense if the statute makes
it potentially punishable by death, even if the prosecutor has agreed not
to seek the death penalty. It is presumed that the risk of flight of the
defendant is great when he or she is facing death or life in prison without
the possibility of parole.
Does the bail bond continue
forever, can you get it back?
When the bail has served its purpose, the surety will be exonerated (i.e.,
released from the obligation). Exoneration normally occurs when the proceeding
is terminated in some way or on the return of the defendant to custody.
After conviction, the defendant appears for sentence. If sentenced to imprisonment
the defendant is committed to the custody of the sheriff, and the liability
of the surety terminates. You will not receive any money back that you have
paid a bail bondsman.
What if the defendant absconds?
The surety or depositor may arrest the defendant, or authorize and agent
to do so for the purpose of surrendering him into custody to ensure his
future appearance. This extraordinary power of the bail bondsman is of ancient
origin. When bail is given, the principal is regarded as delivered to the
custody of his sureties. Their dominion is a continuance of the original
imprisonment. Whenever they choose to do so, they may seize him and deliver
him up in their discharge, and if that cannot be done at once, they may
imprison him until it can be done. They may exercise their rights in person
or by agent. They may pursue him into another state; may arrest him on the
Sabbath; and if necessary, may break and enter his house for that purpose.
The seizure is not made by virtue of new process. None is needed, it is
likened to the rearrest by the sheriff of an escaping prisoner. The following
may be authorized to arrest a bail fugitive:A certified law enforcement
officer.A person licensed by the State to do so (i.e., holding a bail license
in another state and authorized in writing by the bail or depositor to make
the arrest). A person contracted and authorized in writing by the bail or
depositor to do so, Bail Fugitive Recovery Person.A private Investigator.Persons
doing the foregoing have been called bounty hunters, yet the term does not
fit the facts of today`s world, they are acting under contract.
In what instances will the bail
be forfeited?
A judge must in open court declare forfeited the undertaking of bail, or
the money or property deposited as bail, if, without sufficient excuse,
a defendant fails to appear for any of the following: (a) Arraignment, (b)
Trial, (c) judgment, (d) any occasion prior to the pronouncement of judgment
if the defendant`s presence in court is lawfully required, or if the defendant
fails to surrender in execution of the judgment after appeal.
If the defendant does not appear
and the court orders a forfeiture, can it be set aside if he later appears?
A court will sometimes order bail forfeited on the defendant’s nonappearance,
then vacate the forfeiture to reinstate the bail when the defendant appears
and offers an explanation for the absence. Some instances of this would
be the nonappearance because of death, illness, or insanity, or detention
by civil or military authorities, and if the absence was not with the connivance
of the bail (acquiescence of the bonding company to the absence). An example
of illness would be where the defendant is confined to bed by reason of
a doctor’s order. If a defendant flees and the prosecuting agency does
not seek extradition the bail may be exonerated.
If the defendant has absconded,
what must the bail fugitive recovery person be able to show? Is that person
a bounty hunter?
That he possesses the authority to arrest by virtue of satisfying any licensure
requirements a state may impose upon such a person. Additionally, he or
she must have in their possession proper documentation of authority to apprehend
issued by the bail or depositor, which shall include the name of the individual
authorized to apprehend the bail fugitive, the address of the principal
office, the name and business address of the bail agency, or other party
contracting with the individual authorized to apprehend a bail fugitive.
In a historical sense they are a bounty hunter as they generally are contracted
to do this and are remunerated for their services by the bail agency or
other contracting party. The bounty hunters of old are not the bail fugitive
recovery persons of today. Some jurisdictions require significant training
and licensure of persons engaged in the recovery of bail absconders.
What if the underlying criminal
charge is dismissed?
Statutes provide for exoneration of the surety in the event of dismissal.
However, there is usually a time period within which the prosecuting agency
may seek to rearrest and charge with a public offense arising out of the
same act or omission upon which the action or proceeding was based. You
will not receive any money back from the bail bond company.
When can bail be increased?
After a defendant has been released, the court in which the charge is pending
may require him to give additional bail in an amount specified or to meet
an additional condition upon a finding made in open court that the defendant
has failed to appear; or that additional facts have been presented that
were not shown at the time of the original release order, and the court
may order him to commitment unless he or she gives such bail or meets such
other conditions.
What else may happen when a
defendant fails to appear?
The court may issue a bench warrant for his apprehension and arrest for
the failure to appear upon the underlying charge, which would thus be a
separate triable offense, separate and distinct from the original charge.
The appropriate agency will enter each bench warrant issued on a private
surety—bonded felony case into the national warrant system (National
Crime Information Center (NCIC)).
What is an immigration bond?
An immigration bond issued for delivery of an alien guarantees that the
individual will appear for all I.N.S. hearings on time and depart the United
States at a specified date.
An immigration bond conditioned for maintenance of an alien, guarantees
that the person will be financially independent during the time he/she is
in the United States.
What is a bail bond indemnitor?
A bail bond indemnitor is the co-signer for the bail bond. The indemnitor
is responsible for seeing that all premiums are paid for a defendant’s
bail bond.
Bail bonds are normally good for one year. If the case continues for longer
than a year, additional premiums will be due and collected for each year
the case goes on.
Bail bond premiums are not refundable, as they are used for the bail agent`s
expenses, etc. The indemnitor is also responsible for additional expenses
incurred by the bail agent in the transaction of a bail bond, such as long
distance calls, travel, etc.
An indemnitor is no longer liable for the defendent`s bond when the defendant
has completes all of his/her court appearences, and when all premiums have
been paid. It is best to contact the bail agent when the bond is exonerated
by the court, for the expedient return of any collateral pledged and to
confirm that the bond is exonerated.
In the event of forfeiture, the indemnitor is liable until the full amount
of the bail has been paid, plus any expenses incurred, or until the court
exonerates the bond. The bond then becomes void.
