Even someone with no legal experience has probably heard of a court setting bail or has seen advertisements for “bail bonds.” But what exactly is bail, and how much is it? When might a judge reduce bail or waive it altogether?

What is bail?

Bail is essentially an agreement between the defendant and the court. The defendant agrees to “post” (that is, “put up”) a specified amount of money in exchange for release from jail. Under this agreement, the defendant promises to return to court for a scheduled court date.

Defendants who fulfill their agreements and appear in court at the appropriate time will get their money back, even if they are convicted.

Defendants who violate the agreement and fail to show up on the specified date immediately forfeit the bail amount. A warrant for their arrest also will be issued.

A defendant who cannot pay the bail (or cannot get someone to pay the bail for them) cannot be released from jail. They must remain in jail until the date set for their trial.

What determines bail amount?

In San Diego, there is a schedule that sets the amount of bail for infractions, misdemeanors, and felonies, depending on the charge. Bail can be paid in cash or through a bail bond.

Bail amounts are set by law, but a judge has some leeway in determining the final amount. He or she can consider numerous factors when setting bail:

  • The standard schedule under law
  • The seriousness of the crime
  • Potential risk to public safety
  • The defendant’s criminal record and reputation: individuals with greater community ties may be more likely to show up for their court date and so receive a lower bail, but those with long criminal records or a history of missing court dates could receive higher bail
  • The arrest itself: defendants who were apprehended while fleeing police, for example, are a higher “flight risk” and can receive a higher bail amount

If bail is paid in cash at a Sheriff’s detention facility, it is managed by the San Diego Superior Court. The accounting office will refund the money within 4-6 weeks of court confirmation that the case is resolved or completed and bail has been exonerated. The office will send the refund to the address on the bail payment receipt.

Can bail be waived?

Just as a judge can raise or lower bail, he or she can decide to waive it entirely. This decision is made at the bail hearing, where it is advisable for the defendant to have an attorney representing them.

The attorney (or defendant, if they represent themselves) can argue that the defendant is not a danger to the community or any individual. The representation should point out that the defendant has no previous record, if this is the case. If the defendant does have a record, it can help if they can prove he or she has made all past court appearances.

A defendant with strong community ties, such as employment or local family members, may have a better chance of having bail waived. A defendant’s family member or employer may agree to vouch for them at the bail hearing. The judge also could decide to waive bail if the defendant is experiencing severe financial hardship, such as being a student or struggling with medical bills.

Even if a judge does not initially waive bail, he or she can reconsider later. A defendant who represented themselves at the first hearing may improve their chances if they hire an attorney. They also may provide additional evidence that they are not a threat and will honor their court dates.

Many different factors are involved in setting or waiving bail. Whatever your criminal record or community standing, your chances of having bail reduced or waived are better with an attorney on your side. To discuss this issue further or to obtain other legal advice, feel free to contact us.