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What is bail?

| Oct 2, 2018 | Criminal Law

What is bail? And how is it set? If you’re arrested, getting out of jail—“bailing out”—is your top priority. Bail allows you to stay out of jail while you are facing the charges against you. Your bail bond is essentially a written promise that you make to the court. You promise to appear in court at the scheduled time(s) and date(s), as ordered by the court. There may be other conditions that you agree to, as well. Those conditions can include checking in with pre-trial services or submitting or alcohol or drug testing while your case is pending.

The bail amount and other conditions of your bond are set by the court. In Colorado, the general rule is that “all persons are bailable by sufficient sureties.”[1] There are some exceptions where a person would not be eligible for bail. They include defendants facing capital offenses (punishable by death) when “proof is evident or presumption is great,” or in cases where the person is accused of a particular crime (including crimes of violence, sex assault, etc.) and the court has determined, after a hearing, that the public would be in great danger if the person were released.

Besides those exceptions, every other person charged with a crime “has the right to a hearing to determine bond and conditions of release.”[2] The bond shall be set at the first appearance with the court or the bond officer.[3] The law requires that the type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the defendant and to protect the community.

In Colorado, courts must presume that all persons are eligible for release on bond with the least-restrictive conditions.[4] Any monetary condition of release must be reasonable, and “least-restrictive conditions” includes financial conditions. The court must do all that it can to avoid unnecessary pretrial incarceration. Basically, the presumption in Colorado is that people should be given a bail that they can afford or comply with. We don’t want people sitting in jail before they’ve been convicted, i.e., while they are presumed innocent. Other factors that the court will consider include:

(a) The employment status and history of the person in custody;

(b) The nature and extent of family relationships of the person in custody;

(c) Past and present residences of the person in custody;

(d) The character and reputation of the person in custody;

(e) Identity of persons who agree to assist the person in custody in attending court at the proper time;

(f) The likely sentence, considering the nature and the offense presently charged;

(g) The prior criminal record, if any, of the person in custody and any prior failures to appear for court;

(h) Any facts indicating the possibility of violations of the law if the person in custody is released without certain conditions of release;

(i) Any facts indicating that the defendant is likely to intimidate or harass possible witnesses; and

(j) Any other facts tending to indicate that the person in custody has strong ties to the community and is not likely to flee the jurisdiction.

(6) When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.

If you have a clean criminal history, strong ties to the community, a job, and no history of failing to appear for court, then you are in good shape when it comes to your bail bond. Courts allow many first-time offenders to have a “personal recognizance” bond (called a “PR” bond). With a PR bond, you simply sign the bond promising that you will appear in court. There is no payment of money or anything else to guarantee that you’ll show up. Your word is good enough.

If you have a history of failing to appear in court, a lengthy criminal history, or no ties to the community (so that fleeing would be easy), courts will be less likely to give you a PR bond. Instead, the court will require you to pay some money as part of your promise to show up to court. If you don’t show up, you will lose that money. Or, the court may require some other condition of release, such as wearing a GPS monitor or checking in regularly with pre-trial supervisors.

So what is bail? And how is it set? Bail is set by the court at your first appearance. If you’re not given bail, you have the right to request a hearing. The court must presume that you are eligible for release under the least-restrictive conditions. In determining what those conditions will be, the court will consider the above factors. A skilled criminal defense attorney will make arguments to the court based on those factors. A good bond argument can be the difference between whether you sit in jail, or whether you are released while charges are pending. If you’ve been arrested or charged with a crime, call a criminal defense lawyer at Cheney Galluzzi & Howard today. Life happens. We can help.

[1] C.R.S. § 16-4-101

[2] Id. § 16-4-102

[3] Id. § 16-4-103

[4] Id.