FREQUENTLY ASKED QUESTIONS
What is bail?
Bail is a security placed with the court securing the release of a Defendant (the person arrested) for the duration of the trial. It can be in the form of cash or bond. A judge sets the bail at a given amount. Normally the bail amount will vary according to the severity of the charge(s), the Defendant’s arrest record (if any) and the flight risk posed by the Defendant.
Bail acts as an agreement between the Defendant and the State, whereby the Defendant agrees to make all of his or her court appearances until the conclusion of the Defendant’s trial. If a bond secured the release of the Defendant, the bond is discharged by the court.
Can bail be increased/decreased?
Yes. Before bail is posted, a court may raise or lower the bail of a Defendant at its discretion. In fact, it is frequent for a Defendant’s attorney to motion the court for a bail reduction before the bail is posted.
What is bail recognizance?
Bail recognizance is the terms and conditions under which a Defendant is released on bail. Most importantly, the Defendant agrees to make all of his court appearances, and to notify the court if he or she cannot be present in court (for example, if the Defendant is in custody elsewhere).
Bail recognizance is not to be confused with situations where the Defendant is released on his/her own recognizance (ROR). These are situations where the judge has released the Defendant without setting any bail.
What is a bail bond?
If the judge gives the Defendant the option to post bail in the form of a bond (i.e. “cash or bond”) then the Defendant may use the services of a bail bondsman to post bail. A bondsman will post a bond with the court to secure the release of the Defendant in lieu of cash.
Under this arrangement, the bondsman promises the State that the Defendant will make all of his or her court appearances. Thus, a bondsman acts as a Surety (Guarantor) in this contract (i.e. it guarantees the contract between the State and the Defendant). If the Defendant fails to make any of his or her court appearances, then the bondsman agrees to be held liable for the full amount of the bail set by the court. Thus, the bondsman takes a significant risk in bailing out the Defendant.
What is a detainer?
A detainer is a warrant or fine on the Defendant’s record which will prevent him from being released even after bail is posted. For example, if the Defendant owes child support in another county, or has traffic fines to pay in another town, then the county jail may not release the Defendant until those charges/fines are paid or resolved. Therefore, it is imperative that the Defendant know whether there are any detainers on his or her record.
What is an indemnitor?
Due to risk taken by the bondsman, it is common for the bondsman to seek indemnitors (co-signers) who will co-sign for the Defendant’s bail bond. Indemnitors are usually family members and close friends of the Defendant seeking bail. An indemnitor promises to indemnify the bail bondsman for any expenses or losses incurred by the bondsman as a result of posting the Defendant’s bail. This includes any expenses resulting from a forfeiture or any unpaid premium on a bail bond.
What is collateral?
In some instances, the bondsman may require the Defendant or his or her indemnitors to deposit collateral in order to post the bail bond. Collateral can be a lump sum of money or a lien on property. At the conclusion of the Defendant’s trial, any collateral held by the bondsman will be returned provided that the bondsman has not incurred any expenses. If the bondsman has incurred expenses, then the collateral may be used to satisfy the outstanding obligation.
What is premium?
The bail bondsman posts a bond with the court guaranteeing that the Defendant will make all of his court appearances, thereby securing the Defendant’s release. The bail bondsman charges a fee for this service. This fee is called premium. Premium is generally 10 percent of the bail amount set by the judge. For example, if the bail amount is $50,000.00, then the premium charged by the bondsman will be $5,000.00.
Let’s assume the judge has given the Defendant the option to post bail either “cash or bond.” If the Defendant were to post bail with the court in cash, the Defendant would have to come up with the entire bail amount in one lump sum. In many cases, a Defendant and his or her loved ones do not have the resources to do this.
A bail bondsman can be much more flexible when it comes to the payment of the premium. Bondsmen often accept payments to be made towards the premium. For example, at Aaron Bail Bonds, we often accept as little as one percent of the bail amount as a down-payment on the premium. We then have the indemnitors and Defendants enter into a payment arrangement to pay the remaining premium at a later time. Thus, in the above example, if the Defendant’s bail is $50,000.00, and the premium is $5,000.00, then Aaron Bail Bonds could post the bail bond for this Defendant with a down-payment as low as $500.00! The Defendant and the indemnitors can pay back the remaining $4,500.00 over time, like a credit card.
Is the premium refundable?
Once the bond is posted, the premium is non-refundable. The premium is earned by the bondsman once the bail bond has been posted. Premium may only be refunded if the bail bond has not been posted.
What if the Defendant fails to make a court appearance?
If a Defendant fails to make a court appearance for any reason, and fails to notify the court that he or she will be absent, then the court will forfeit the Defendant’s bail and issue a warrant for his or her arrest. The court views this as the Defendant breaking the conditions of his bail recognizance. The Defendant is now referred to as a fugitive. A bail forfeiture sets in motion a costly process for all parties involved.
The bondsman will receive notice of the forfeiture from the court, at which time the bondsman will have 75 days to locate and/or apprehend the fugitive. To accomplish this, the bondsman often hires a fugitive recovery team (colloquially known in popular culture as “bounty hunters”) to find the fugitive and surrender him to authorities. If the fugitive is not located and/or apprehended, then the bondsman becomes liable to the State for the full amount of the bail. The bondsman can then seek indemnification for this loss from the indemnitors.
If the fugitive is located and/or apprehended, then the bondman must pay the fugitive task force for its services. The bondsman must then present a motion to the court to vacate the forfeiture and discharge the bail. A bondsman may hire and pay an attorney for this. Finally, the court may impose upon the bondsman a reduced judgment, usually a fraction of the full bail amount, which the bondsman must pay to the State. The bondsman may then seek indemnification for these expenses from the indemnitors.
Because forfeitures are so costly to bondmen and indemnitors alike, it is advised that indemnitors have Defendants check in frequently. Indemnitors should always know the whereabouts of the Defendant. Indemnitors should do all they can to make sure the Defendant makes it to court for all appearances.
This website provides information about the bail process. However, in no instance should this information be construed as legal advice. If you are seeking legal advice regarding a bail or another matter you must contact your attorney.