       
How Bail
Works in Las Vegas, Nevada
Bail Bond
Overview
When an individual is arrested for a crime, the person
is typically taken to a local detention facility for
booking prior to incarceration in a lock-up station or
county jail. Once arrested and booked, the defendant has
several options for release pending the conclusion of
his or her case.
The Bail system is designed to guarantee the timely
appearance of a defendant in court. Bail is also an
insurance policy for the state that the defendant will
appear to face charges. Further, the legal intent of
release on Bail is not to relieve the defendant of
obligations except for appearing, it is the retention of
control over the defendant to the end that justice might
be administered.
Release Options
There are five basic Release Options:
- Cash Bond
- Surety Bond (common Bail Bond)
- Property Bond
- Own Recognizance (OR)
- Citation Release (Cite Out)
Cash Bond
Cash Bond requires an individual to post the total
amount of the Bail in cash. The court
holds this money until the case is concluded. If the
defendant does not appear as instructed, the cash bond
is forfeited and a bench warrant is issued. In this
case, the defendant may be his or her own guarantor.
Note that recent federal laws restrict cash bails in
cases involving narcotics. In these cases, all cash or
assets used to secure a Cash Bond or Surety Bond must be
proven to have not originated from narcotics trafficking
before bail is granted.
Surety Bond (common
Bail Bond)
The Surety Bond is a series of contracts which guarantee
the defendant's appearance in court. When a professional
Bail Bond Agency guarantees that appearance, it is
called a Surety Bond and the Bond Agency is fully liable
if the defendant does not appear through an insurance
company, called the Surety. In turn, the Bond Agency
charges a Premium for this service and often requires
collateral from a guarantor. The guarantor generally
knows the defendant and is guaranteeing appearance in
court. Ironically, while a defendant who fails to appear
in court is subject to additional charges, he or she is
not normally liable for any bond forfeitures (unless the
guarantor arranges such an agreement with the
defendant).
Property Bond
In rare cases and a few jurisdictions, an individual may
obtain release from custody by means of posting a
Property Bond with the court. The court records a lien
(or right) on the property to secure the bail amount. If
the defendant fails to appear, the court may institute
foreclosure proceedings against the property. Often, the
equity of the property must be twice the amount of the
bail set.
Own Recognizance (OR)
OR constitutes an administrative pre-trial release.
Usually court administrators or judges interview
individuals in custody and make recommendations to the
court regarding release on OR (i.e. without any
financial security to insure the appearance).
Citation Release (Cite Out)
This procedure involves the issuance of a citation by
the arresting officer to the arrestee, informing the
arrestee that he or she must appear at an appointed
court date. Cite Outs usually occur immediately after an
individual is arrested and no financial security is
taken.
Who Sets Bail Amounts?
A judge or magistrate normally sets the Bail amount for
a particular case according to a county Bail Schedule
(a.k.a. Schedule of Bail for All Bailable Offenses) and
the particulars of a case. The Bail Schedule itself is
usually set annually by a majority vote of superior,
municipal, and other judges.
In setting or denying bail, the judge or magistrate's
first concern is the protection of the public, followed
by the seriousness of the offense and previous criminal
record. Further, the Judge must be convinced that no
part of the Bail was feloniously obtained.
Who May Accept Bail?
In most jurisdictions, a judge, a bail clerk, a court
clerk, a magistrate, or a designated jailer can accept
Bail. Note that this usually does not include the
arresting officer.
Occasions When Bail May be Granted
Bail is normally granted when:
- A person is arrested for a bailable offense,
prior to appearance before the magistrate or other
arraignment.
- A person is arrested for a bailable offense,
following formal indictment or charges
- A person convicted of an offense but awaiting
sentencing (when the sentence is likely to be
modest)
- A person convicted of an offense but making an
application for probation.
- A person convicted of an offense making an
appeal (usually only after certification that the
person is not a flight risk, faces a modest
sentence, is not a threat to the community, and has
a good court appearance record).
Note also that most jurisdictions
will not grant Bail for capital crimes or violent
felonies without the defendant first attending a hearing
for which the prosecuting attorney is granted time to
prepare (often 2 court days).
A defendant charged with a crime punishable by death
usually cannot be granted Bail if the proof of his guilt
is evident or the presumption thereof great.
The Right of the Surety and Bail Agent to Pursue
Principal Who Has Fled
The Surety (and through them, the Bail Agent) in a Bail
Bond have the right to turn their Principal (the
defendant) over to the Court (via law enforcement) at
any time, and to this end may pursue and seize him
wherever they may find him, even though that be in
another state.
More plainly, the Bail Agent or Surety may cancel the
Bail at any time and turn in the defendant if they deem
necessary (e.g. defendant has left his job, cannot be
located, or is reported to be planning flight). By
common law, the Surety may arrest the defendant who has
failed to appear at any time and in any place. This
arrest is legally considered a continuation of the
original custody and has been likened by the U.S.
Supreme Court (Taylor v. Taintor 16 Wall, 366) to the
rearrest of an escaped prisoner by the Sheriff. In the
same case, the Court also related that Bail was intended
to transfer custody from the Sheriff to the Surety, not
to discharge the defendant from custody.
More plainly, the Bail Bondsman may use forcible entry and
is not required to have a warrant or court order.
The Supreme Court has also ruled that "Bail have no
power to arrest the principal in a foreign country"
(Reese v. S. 9 Wall 13).
The Surety and its Bail Agent may empower any person of
suitable age to arrest a defendant (usually by providing
written authority on a certified copy of the certificate
of deposit).
In summary, Bail Agents have more powers that States do
in pursuing and arresting principals (defendants). Bail
Agents do not need warrants or extradition proceedings
as States do.
Example Bail Agreement
An order having been made on the 1st day of July,
1997, by J. Bench, a judge of the Justice Court of
Callahan County, that I. B. Busted, be held to
answer upon a charge of Spousal Abuse, upon which he
has been admitted to bail in the sum of twenty
thousand dollars ($ 20,000); we Mother Busted and
Uncle Busted, of 111 Blue Jay Way, Callahan City,
hereby undertake that the above-named I.B. Busted
will appear and answer any charge mentioned, in
whatever court it may be prosecuted, and will at all
times hold himself amenable to the orders and
process of the court, and if convicted, will appear
for pronouncement of judgment or grant of probation,
or if he fails to perform either of these
conditions, that we will pay to the people of the
State of California the sum or twenty thousand
dollars ($ 20,000). If the forfeiture of this bond
be ordered by the court, judgment may be summarily
made and entered forthwith against the said Mother
Busted and Uncle Busted, and the defendant if he or
she be a party to the bond, for the amount of their
respective undertakings herein, as provide by
Sections 1305 and 1306.
Bail Bondsman
Ethics ( excerpted from the California Bail Agents
Association)
The bail licensee should endeavor constantly to be
informed regarding current laws, proposed legislation,
governmental orders or regulations, and other
significant information and public policies which may
affect the interests of the client.
The bail licensee should make a constant practice of
full and complete disclosure to all parties, be they
principal or indemnitor, of any and all possible
liabilities, penalties or detriments which may arise
from their involvement in that particular undertaking
which secures the release from custody of a person who
is charged with a criminal offense.
The bail licensee should not, prior to forfeiture or
breach, arrest or surrender any principal and thereby
terminate his or her release from governmental custody
unless the licensee can materially show good cause for
such action.
The bail licensee, upon receipt of notice of forfeiture
or breach where notice is required, or upon personal
knowledge of forfeiture or breach, should promptly and
formally notify any and all indemnitors and real parties
of interest of the forfeiture or breach by the
principal, and the bail licensee should at that time
concisely state the liability thereby incurred or
pending.
The bail licensee should supply all indemnitors to an
undertaking with a true copy of any document
representing a binding legal contract to which she or he
is to be or is being committed.
When an examination of the material factors of a
potential undertaking reasonably convinces the bail
licensee that she or he will be unable to undertake that
particular bail relationship, the bail licensee should
immediately inform all involved parties that she or he
will not be able to secure the release of the defendant
so that the defendant or his or her affiliates may
promptly seek his or her release by another means.
Every bail licensee should comply in full with the laws
and regulations governing the transaction of bail. Such
compliance must necessarily include those matters
dealing with the trust and fiduciary relationship as it
relates to moneys and properties which may secure and
undertaking. The highest moral and ethical practice
should be maintained when entering into a trust or
fiduciary relationship.
The bail licensee should not, except as provided by law,
engage in activities that constitute the practice of
law, and should refrain from making comments and
representations which may lead the public to believe
that the bail licensee is practicing law. [Practicing
attorneys are generally not allowed to hold Bail Agent
licenses]
Unless compelled to do so by law or by court order, the
bail licensee should not divulge or disclose to any
person or agency personal information regarding the
principal or indemnitor of an undertaking which has not
been forfeited or breached. The inherent right to
privacy of the individual, and the position of trust of
the bail licensee, demand compliance with this concept.
The bail licensee should make great efforts to verify
and confirm any information which he or she may give to
a court, law enforcement agency, or any other public
agency.
The bail licensee shall not conspire with other bail
licensees to regulate rates or restrict trade with the
bail profession. The bail licensee should avoid
controversy and conflicts with fellow bail licensees,
and should not voluntarily disparage the business
practice of a competitor, nor volunteer an opinion of a
competitor's transaction. However, the bail licensee
should also inform fellow bail licensees of established
hazards involving a prospective client if such hazards
truly exist. |
