If you watch much television, you've probably seen variations of this scene dozens of times: a judge bangs a gavel and announces, "Bail is set at $100,000." The defendant looks despondent as he consults with his lawyers. But somehow he ends up free while waiting for his trial to begin. One hundred thousand dollars is a lot of money to come up with -- how did he afford it? And what did it mean when the defense attorney claimed his client was not a "flight risk"?
Bail works by releasing a defendant in exchange for money that the court holds until all proceedings and trials surrounding the accused person are complete. The court hopes that the defendant will show up for his or her court dates in order to recover the bail.
In many cases, trials can begin weeks or months after an initial arrest, and if not for bail, many people, some of whom might be innocent, would have to wait in jail until their trials began. At the minimum, this can present a financial hardship, as the person would be unable to work. And, the person would also be missing his or her life -- family events, holidays, etc. Not everyone who is released on bail is eventually acquitted, so to prevent particular dangerous suspects from being released, several safeguards have been built into bail law. In this article, we'll learn about those safeguards, how the bail process works and how this system has changed since it was first started in England centuries ago.
When someone is arrested, he or she is first taken to a police station to be booked. When a suspect is booked, or processed, a police officer records information about the suspect (name, address, birthday, appearance) and the alleged crime. The police officer conducts a criminal background check, takes the suspect's fingerprints and mugshot and seizes and inventories any personal property, which will be returned when the suspect is released. The suspect is also checked to see if he or she is intoxicated and usually is allowed to make a phone call. Finally, an officer puts the suspect in a jail cell, usually with other recently booked suspects.
For less serious crimes, a suspect may be allowed to post bail immediately after being booked. Otherwise, the suspect will have to wait (usually less than 48 hours) for a bail hearing where a judge will determine if the accused is eligible for bail and at what cost.
The amount of bail depends on the severity of the crime but is also at the judge's discretion. Some jurisdictions have bail schedules which recommend a standard bail amount.
In determining bail, a judge may take into account this amount but will also consider the defendant's criminal record (if any), his or her history of showing up for past court appearances, ties to the community, whether the suspect is a danger to others and any other concerns that may be raised by the defendant's attorney. In some cases, bail may be waived altogether, which we'll discuss later in the article.
So how did that guy on Law & Order afford $100,000 bail? Read on to learn about the different types of bail.
Types of Bail
There are five different types of bail, although some of them are used less frequently than others. Let's start with the most common ones.
Cash bail means that the accused pays the full amount of bail in cash. Sometimes the court accepts checks or even a credit card.
Also called a bail bond, a surety bond can be used for any amount of bail, but it is especially useful when the accused can't afford to pay his or her bail. This type of bail often involves a friend or relative of the accused contacting a bail agent, also known as a bail bondsman. A bail agent is backed by a special type of insurance company called a surety company and pledges to pay the full value of the bond if the accused doesn't appear in court. In return, the bail agent charges his client a 10 percent premium and collects some sort of collateral (i.e. a title to a house, car or boat, or jewelry or electronics).
By getting a friend or relative involved, the bail agent hopes that the defendant feels compelled to appear in court, since this friend or relative is probably paying the bail agent's premium and has collateral on the line. The bail agent's bond is also at stake, and if the defendant doesn't appear in court (known as skipping or jumping bail), then it will be the agent who's responsible for paying the entire bond. If the defendant skips a court date, the bail agent, and even the family or friends of the defendant, might seek out a bounty hunter, assuming it's legal in that state.
Commercial bail bonding is illegal in Illinois, Oregon, Wisconsin and Kentucky [ref]. Some states require bondsmen to be licensed. If you are in need of a bail bondsman, you can find listings in local phonebooks.
Release on Citation (Cite Out)
In some cases, an officer will not book a suspect at all but will instead issue a citation saying that the accused must appear in court. While this process is less thorough than taking a suspect to a police station and performing the formal booking procedure, it allows the arresting officer to focus on catching more serious offenders.
Release on Own Personal Recognizance
A judge may also choose to release a suspect on his own recognizance, meaning that he is responsible for showing up for court dates and does not have to pay bail. Personal recognizance is usually only allowed when the charge involves a relatively minor, nonviolent crime and if the defendant is not considered a danger to anyone else or a flight risk -- meaning that it's highly unlikely that the person will flee and not appear for his or her court date.
Sometimes a defendant can provide some property to act as a bond. In these cases, the court gets a lien (essentially a legal claim) on the property in the amount of the bail. If the defendant doesn't show up for his court appearances, the court can foreclose on the property to recover the forfeited bail.
Dealing with Bail Bond Agents
Though bail bond agents may seem like part of a sordid business since they're constantly dealing with accused criminals, it's still a business like any other. Just like you would with a professional in another field, ask to see a bail bondsman's license and identification. Most agents charge a premium of 10 percent, but there may be some additional charges. Ask the agent to explain these charges to you and present them in an itemized list. Similarly, get receipts for everything, and request copies of anything you sign. (Of course, make sure to review any documents you are asked to sign.) Like with any type of loan, don't get talked into financing that you can't afford.
If you're employing a bail agent on behalf of a friend or relative, your agent should be available to you for questions and assistance. In all likelihood, he will be, since he has a vested interested in making sure his clients show up for their court dates. Technically, the defendant is in his custody and is his responsibility. Even so, if it seems that an agent won't be available to talk to you, move on to someone else. There are many options available that can easily be found in a phonebook, through a lawyer or online.
History of Bail
The United States' bail system has evolved from a system developed in England during the Middle Ages. In 1677, the English parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates would set terms for bail. The English Bill of Rights of 1689 declared restrictions against "excessive bail" and later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. The Sixth Amendment to the Constitution states that all people under arrest must "be informed of the nature and cause of the accusation" they face and also allows a person to demand bail if he or she is accused of a bailable offense.
Still, American bail law is actually rooted in legislation. The Judiciary Act of 1789 stated that all noncapital offenses (crimes that did not carry the possibility of the death penalty) were bailable. In the case of capital crimes, the possibility of bail was at the judge's discretion. The act also placed limits on judges' powers in setting bail -- think back to the English Bill of Rights' prohibition against "excessive bail."
Bail law in the United States remained relatively unchanged from 1789 until 1966. In 1966, the U.S. Congress passed the Bail Reform Act, which was designed to allow for the release of defendants with as small a financial burden as possible. Before signing the act, President Lyndon B. Johnson gave a speech that contained stunning examples of how the bail system had hurt people in the past. Here's one particularly disturbing example: "A man spent two months in jail before being acquitted. In that period, he lost his job, he lost his car, he lost his family -- it was split up. He did not find another job, following that, for four months" [ref]. Other anecdotes related similar stories: poor people spending months in jail only to later have the charges dropped; others forced to sit in jail, unable to work, only to be found innocent of all charges. In short, the bail system was biased against the poor and filling jails with people who should be out on bail.
The next major revision to U.S. bail law came with the Bail Reform Act of 1984, which replaced its 1966 predecessor. While the previous Reform Act had helped to overturn discrimination against the poor, it had left open a serious loophole that allowed many dangerous suspects to receive bail as long as they didn't appear to be flight risks. This new law stated that defendants should be held until trial if they're judged dangerous to the community. The law also established new categories of who could be held without bail -- mostly those charged with very serious crimes, repeat offenders, the potentially dangerous and anyone who might be a flight risk. And finally, the act stated that those who were eligible for bail had to have a bail hearing.
Defendants charged with crimes are almost always best served by obtaining a lawyer. In fact, most criminal defendants are represented by a lawyer, especially when jail or a prison sentence is a possible result. It is very difficult for a person to competently handle his or her own criminal case. While there are no firm statistics on how many people choose to represent themselves in criminal cases, estimates range well below 1%.
You Can't Find Everything You Need in a Book
Self-representation is made difficult in part by the typical gulf between paper and practice in criminal cases. In books you can find laws that define crimes, fix punishments for their violation, and mandate courtroom procedures. Take the time and trouble to read these books, defendants might think, and they'll understand the system. Alas, the practice of criminal law can't be understood by reading books alone, even this one. To experienced criminal defense attorneys, the criminal law appears much the same as a droplet of water appears to a biologist under a microscope—a teeming world with life forms and molecules interacting unpredictably.
The Power of the Prosecutor
For example, prosecutorial discretion—the power of prosecutors to decide whether to file criminal charges, and what charges to file— determines much of what actually happens in the criminal courts. The particular prosecutor who has the power to make decisions, and when those decisions are made, can greatly affect the outcome of a case. An act that looks on paper to constitute one specific crime can be recast as a variety of other crimes, some more and others less serious. What in a statute book appears to be a fixed sentence for a particular crime can be negotiated into a variety of alternatives.
No one should underestimate the role that community pressures, values, and politics plays in many criminal cases. Judges must stand for re-election, prosecutors want to be successful, and police expect that the crime reports they bring to the prosecutor will result in charged cases. The public may be fired up about certain crimes and expect the system to "get tough" on people arrested for them. In a perfect world, the system would be immune from such pressures, but this is simply not what happens. Only someone who's familiar with the local scene can know how these pressures might affect your case, and how to work within them.
In other words, the world of criminal law is vast, hidden, and shifting, and defendants enter it alone at their peril. At the very least, most self-represented defendants should arrange for a lawyer to be a legal coach and consult with their coaches as needed.
What Will an Attorney Do for Me?
The truth is, no matter how smart or well educated you are, the criminal justice system makes it virtually impossible to do a competent job of representing yourself. Each criminal case is unique, and only a specialist who is experienced in assessing the particulars of a case—and in dealing with the many variables that come up in every case—can provide the type of representation that every criminal defendant needs to receive if justice is to be done.
Criminal defense lawyers do much more than simply question witnesses in court. For example, defense lawyers:
- Negotiate "deals" with prosecutors, often arranging for reduced charges and lesser sentences. By contrast, prosecutors may be uncooperative with self-represented defendants.
- Formulate sentencing programs tailored to a client's specific needs, often helping defendants avoid future brushes with the criminal justice system.
- Help defendants cope with the feelings of fear, embarrassment, reduced self-esteem, and anxiety that criminal charges tend to produce in many people.
- Provide defendants with a reality check—a knowledgeable, objective perspective on their situation and what is likely to happen should their cases go to trial. This perspective is vital for defendants trying to decide whether to accept a prosecutor's offered plea bargain.
- Are familiar with important legal rules that people representing themselves would find almost impossible to locate on their own, because many criminal law rules are hidden away in court interpretations of federal and state statutes and constitutions. For example, understanding what may constitute an unreasonable search and seizure often requires familiarity with a vast array of state and federal appellate court opinions.
- Are familiar with local court customs and procedures that are not written down anywhere. For example, a defense lawyer may know which prosecutor has the real authority to settle a case and what kinds of arguments are likely to appeal to that prosecutor.
- Understand the possible hidden costs of pleading guilty that a self-represented person might never think about.
- Spend time on a case that a defendant cannot afford to spend. Defendants who can afford to hire a lawyer usually have jobs, and therefore lack the time (and energy) to devote to such time-consuming activities as gathering and examining documents, doing legal research, and talking to witnesses.
- Gather information from prosecution witnesses. Witnesses often fear people accused of crimes and therefore refuse to speak to people representing themselves. Witnesses are more likely to talk to defense attorneys or their investigators.
- Hire and manage investigators. Investigators may be able to believably impeach (contradict) prosecution witnesses who embellish their stories at trial. By contrast, it is far less effective for a defendant to testify that "the prosecution witness told me something different before trial."
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
As the ancestral home of Carnival in the United States, Mobile, AL has a long proud history of putting on Mardi Gras. With so much to see and do around town, and temperate Gulf Coast weather,- even in February, Mobile is simply a great place to visit with family and friends at any time of year.
Because Mobile has such a long Mardi Gras parading season it’s possible to enjoy the town and the festivities without getting bogged down with crowds and partygoers (unless that’s your thing), making it ideal for families.
Overall, Mobile offers one of the best Mardi Gras mixes on the Gulf Coast. It’s big with the go wild crowd, but offers more than enough for those who want to participate quietly, and everything in between.
Mobile’s Carnival season seems to go on much longer than in many other cities. In Mobile, more than 50 groups organize parades, balls, and festivities over a period of up to three weeks.
Families & Krewes
Mobile parade routes include sections that are designated family friendly and prohibit the consumption of alcohol. Bienville Square and Spanish Plaza are centrally located for parade watching, while Dauphin and Royal Streets are home to numerous restaurants, music venues, and shops.
In Mobile’s Mardi Gras culture, you won’t often hear the word krewe (as you might in Louisiana). Here they refer to their parading organizations as "orders" or "societies", or "Knights of", though they serve much the same social, civic, and cultural function. In 1830, Cowbellion de Rakin, Mobile’s first masked parading society was founded, and since that time numerous secret (and not so secret) societies have been formed around Mobile’s Mardi Gras parading tradition.
Overall, Mobile offers one of the best Mardi Gras mixes on the Gulf Coast. It’s big with the go wild crowd, but offers more than enough for those who want to participate quietly, and everything in between.
To ensure innocent citizens are not arrested, most states including Alabama, a police officer must have probable cause to believe someone is under the influence before he can require a person to submit to any form of blood alcohol concentration test.
Once a police officer has established probable cause, he can ask the driver to submit to a blood, urine or breath test either at a police station or a local hospital. A driver can refuse the test, but anyone who refuses the test may be assumed to be guilty under "implied consent" laws. One defense to a conviction based on a driver's refusal to take a blood alcohol concentration test is the fact that police officers did not make the consequences known to the driver who refuses the test.
Reasons the Police Use to Pull a Driver Over
Law enforcement may pull a driver over for changing speed erratically, going too fast or to too slow, an inability to stay inside the lines of a lane of traffic, failing to yield at stop signs, intersections, or stop lights or for aggressive driving.
Police officers often strike up a conversation immediately upon on any traffic stop to assess a driver's ability to carry on a conversation, maintain eye contact, etc. Police will be looking for signs of slurred speech, the smell of alcohol on a driver's breath, bloodshot eyes, or even the occasional comment by a driver that he is coming from a party or a bar.
Should You Answer the Officers Questions?
The side of the road is no place for an argument with law enforcement and it's no place for you to start making legal arguments. Save your legal arguments for the court. You should be polite and know that you do NOT have to answer any questions without a lawyer present. You will obviously draw more suspicion to yourself if you are not respectful or if you do not answer questions so it is wise to answer any questions politely and as with vague information rather than specifics. You should not disclose any information about any alcohol you may have consumed. Do not tell police that you only had a couple beers during the game, or that you were at a party or a bar. That information will only lead them to pursue probable cause to further test for DUI or to arrest.
Avoiding the Field Sobriety Tests and Chemical Tests
You also have the right to refuse a field sobriety test or chemical test. The field sobriety tests are subjective and can easily be used against you even if you think you can pass them. Your refusal might also frustrate the police officers. If the police threaten you based on your refusal to submit to the tests, you should respectfully tell them that you will perform the test because of their threats but that you do not consent to the tests. That evidence can be used later in court to suppress the results of the tests.
Chemical tests are also subjective because there are medications and conditions which can lead to false positive results on chemical tests. Be aware though that the fact that you refuse the tests can be used against you if your case goes to court and the police officer must make you aware of that consequence. Generally speaking, there are penalties if you refuse a chemical test and some states will use your refusal as a basis to declare for stiff penalties. You always have the right to contact an attorney before you submit to any test.
Police Need Probable Cause to Make a DUI Arrest
In most states, police need probable cause before they can make an arrest for driving under the influence. As discussed earlier, probable cause can be made through observations made by law enforcement. The observations are subjective and dependent solely on the police officer's judgment. Police can use observations of slurred speech, weaving while driving, and other impaired actions in order to prove reasonable cause for an arrest. Field sobriety tests can also be used to show probable cause.
There are some states which now allow road check points to check every driver for possible impairment, regardless of how a person appears to be driving. These road check points have been held as constitutional by the United States Supreme Court. It was a divided court where some justices said the importance of stopping drunk driving outweighed the possible infringement of rights to privacy, while some justices felt the infringement was not justified.
Is it Legal For the Police to Search a Drivers Vehicle?
Police Officers are allowed to confiscate anything in plain view when they approach your car during a traffic stop. It is always wise to keep things out of plain view. In order for a police officer to search your car, or to look in the glove compartment, or trunk, he must have probable cause or a reasonable suspicion that he will find something illegal. If he does not have a reasonable suspicion, then he will have to get a search warrant to search your car (which also requires a reasonable suspicion). If you were pulled over for a broken headlight, for example, it would be difficult for an officer to justify the need to search your vehicle. However, most drivers allow police to search their cars, and if you consent to a police search, it is legal for him to do so. You should never consent to the police searching your vehicle. If you do not want to be argumentative with the police officer, you can just say nothing, which is the same as not consenting, or you could say that you would like to talk to a lawyer before answering questions or before allowing a search.
Your Miranda Rights
Police do not need to read you your Miranda rights until they have you in custody. The police can ask you questions and if you answer the questions, then your answers can be used as evidence in a court. When police are questioning you on the side of the road, you do have the right to be silent, but they do not have to inform you of that right. It is possible to have a conversation with police while remaining polite and respectful without disclosing information which refers to any alcohol you may have had or any other incriminating information. Only after you are under arrest and in police custody do the police have to read you your Miranda rights. At that point, you should ask to speak to a lawyer for dui and not say anything else.
Let us help you with your DUI charge. Call DUI Defense attorney John W. Cowling in Loxley at (251) 947-7667, our Mobile office at (251) 432-7667, or use our email form and contact us today.
There are a number of things to consider when interviewing and hiring a criminal defense attorney. Does the lawyer have the necessary skills and experience to handle your case? Do you agree with the proposed strategy? Do you have confidence in him or her? Is that confidence well placed?
This article discusses all of these considerations in more detail.
Before hiring a criminal defense attorney, you should meet the lawyer to discuss the legal charges against you. The purpose of this meeting is to:
- Decide whether this is the criminal defense attorney you want representing you
- Tell the lawyer about the accusations against you
- Give the lawyer your version of what happened and any other facts that may be relevant
- Get to know the lawyer, his or her background, and experience
Evaluating a Criminal Defense Attorney
Be careful interpreting the advertisements criminal defense lawyers use. Dont assume a lawyer is an expert in a particular area of the law. Its important to learn about background and experience.
Because youll be facing specific charges brought by a prosecutor, you want to make sure your criminal defense attorney has sufficient experience with those charges. Its also helpful if your lawyer is familiar with the prosecutor handling the case. Ask:
- How long has the lawyer been defending clients facing federal or state felony charges?
- How often does the lawyer appear in the courthouse where your case will be heard?
- How well does the lawyer know the prosecutor trying your case? Have they worked opposite one another before? How would the prosecutor describe the lawyer as an opponent?
- What percentage of the lawyers practice consists of representing clients facing similar charges?
- If the attorney practices in other areas as well, what percentage of the workload consists of criminal defense cases?
The ideal attorney will have experience with the exact charges you are facing. Its also helpful if he or she has a good reputation among the prosecutors who work out of the courthouse where you case will be heard.
Criminal Defense Strategy
The criminal defense attorneys you meet with will need to know what youre up against.
To understand the charges the local district attorneys office or U.S. attorney's office (for federal crimes) has filed, the lawyer may want you to fill out a questionnaire. Ask about any paperwork that needs to be sent to the lawyer ahead of the meeting, then make sure you follow through. This will give the attorney time to consider what strategies to pursue.
When you meet, let the lawyer lead the conversation. Some lawyers will want to hear about the case against you first before getting into your version of the events. Answer the questions that are specifically asked of you.
If you cannot get the prosecutor to drop the charges against you, you're facing several options. You can plead guilty, try to arrange a plea agreement in which you plead guilty to a lesser charge, or you can go to trial. Discuss each of these options and their consequences with the criminal defense lawyer. Depending on your states law, a guilty plea to a felony may result in mandatory jail time.
The criminal defense attorneys strategy will be tailored to the specific circumstances of your case. This includes the charges you are facing and the evidence the prosecutor has against you. As you discuss how the lawyer would handle your case, ask yourself:
- Does it sound as if the lawyer has a strong grasp of the law involved?
- Does the strategy seem reasonable?
- Do you agree with it?
In the end, you will have to live with the consequences of whatever strategy the criminal defense attorney pursues. If you have issues with it, this may not be the attorney for you.
Criminal Defense Legal Fees
If you've been charged with a serious crime, you need to find a criminal defense attorney quickly. You may not have the luxury of being able to shop around different lawyers and compare prices. Still, you should understand how a criminal lawyer charges for his or her time.
Most criminal defense attorneys will either bill using an hourly fee or a flat fee. Make sure you understand how much the attorney charges, what the fee includes, what the fee doesnt include, and how and when you must make payment. The discussion about money should take place before you hire an attorney so that there is no misunderstanding down the road.
Trust, Confidence & Judgment
One of the most important aspects of hiring a lawyer is not something concrete you can point to but how you feel about the attorney. You may be working with the lawyer for a while, and you'll want someone you can trust who shows good judgment and offers sound advice.
As you are meeting with a criminal defense lawyer for the first time, ask yourself a few questions to gauge your feelings. Ask:
- Is the lawyer patient with you as you ask questions?
- Does he or she take the time to explain unfamiliar concepts?
- Do you feel your questions were answered directly?
- Do you feel comfortable with the lawyers recommended strategy?
If you are unfamiliar with the criminal justice system, you'll especially want a lawyer who is patient with you and answers all of your questions.
After your meeting, its time to assess the lawyer. Is this someone you want representing you? How does he or she measure up when you consider:
- Fees and expenses
- Trust, confidence, and judgment
If the lawyer rates favorably, then you have found your legal representation. Our main office is conveniently located just off Highway 59 in Loxley. Office hours are 9:00 a.m. to 5 p.m. Monday through Friday. Our offices have free on site parking and the Loxley office is handicapped accessible. Mr. Cowling will visit you in jail, if necessary. We accept MasterCard, Visa, Discover, American Express, cash and checks, and will work out a payment plan if needed.
When facing legal problems, time is not on your side. Determine your best course of action today by calling us for a free initial consultation or contact us via email by filling out the form on this website.