FAQ (Frequently Asked Questions)
Bail, OR and Release
- What is bail?
- Criminal defendants may be required to deposit money to guarantee their appearance in court to answer the charges against them, if released from jail.
People charged with an infraction or a misdemeanor generally must be released upon signing a promise to appear. Exceptions to this general rule include cases in which:
- the charges are Driving Under the Influence or violation of a domestic violence protective order
- the release would jeopardize the prosecution of the offense for which the person was arrested
- the safety of others would be jeopardized if the arrestee is released
- the officer has reason to believe the arrestee will not appear
- the arrestee:
- requests to be brought before a judge
- refuses to sign a promise to appear
- is severely intoxicated or requires medical attention
- has outstanding warrants
- fails to provide satisfactory identification
- What is “OR?”
- An arrestee may be released on his own recognizance, or released “OR.” If released OR, the arrestee may be required to submit to reasonable conditions of release. If a court agrees to release the arrestee OR, the court will require him to sign an agreement specifying his
-Promise to appear at all times and places as ordered
-Promise to obey all reasonable conditions of the release
-Promise not to leave the state without the court’s permission
-Agreement to waive extradition from another state if it becomes necessary
-Acknowledgement the arrestee understands the consequences of violating the conditions of OR release
- How Is Bail Set?
- A judge sets bail at a reasonable amount to ensure the defendant’s return to court. In state court, bail is set according to the County’s bail schedule and in light of the circumstances of the arrestee’s background and the conduct with which he is charged. For example, Orange County’s bail schedule is available at http://www.occourts.org/directory/criminal/felonybailsched.pdf, Los Angeles County’s is available at http://www.lasuperiorcourt.org/bail/pdf/felony.pdf. The bail schedule is a guideline, thus the actual bail set may deviate from the schedule.
- How do I Post Bail?
- Bail may be posted with cash, a cashier’s check or through a bail bond. A bail bond is a legal contract that requires someone to pay money if a defendant fails to return to court. It is guaranteed by the assets of the person who posted it, such as real estate, savings, or valuable personal property. To post the bail, money can be deposited with the jailer.
How do I get my property back?
- What are my rights if my property is taken by the police?
- If the police take your property when they search or arrest you, they must give you a document that acts as a receipt. Each law enforcement agency has its own form to act as a receipt, and these documents most often contain a line for you to sign acknowledging the officer provided you a copy of the receipt, and/or that the receipt is accurate. You are entitled to a receipt that is correct and complete. If the receipt is incorrect or incomplete, do not sign it, and ask for the receipt to be corrected. You do not have to sign the receipt to have your property returned. Tell your attorney if the receipt given to you is incomplete.
- Why was my property taken?
- The police may take property for four reasons:
a. SAFEKEEPING: Valuables such as money, jewelry and furs are taken from an arrestee to prevent them from being stolen. An arrestee’s car is sometimes impounded to keep it safe while he is in custody. Property taken for safekeeping only should be returned upon presentation of the receipt and proper identification. Contact your attorney if law enforcement refuses to return property seized for safekeeping.
b. FORFEITURE: Property may be seized and held by the police because they believe it was used to commit or was proceeds of a crime. The police may permanently keep or sell property if they can prove in a civil court that it was unlawfully used or obtained. The police have seized for forfeiture:
(1) CARS driven by a drunk or reckless driver or without a valid driver’s license, or used to obtain drugs or the services of a prostitute, or that contain a loaded gun. Cars used in these crimes may be seized even if the owner of the car was not arrested for the offense.
(2) MONEY that was exchanged for drugs, or that was intended to be exchanged for drugs, or used in gambling.
(3) MERCHANDISE that was sold on the street without a vendor’s license.
(4) TOOLS OR EQUIPMENT that were used to break into a car or building or to sell drugs. This may include a beeper or mobile phone that was possessed for communication during a crime.
c. EVIDENCE: Property may be temporarily held as evidence by law enforcement even though it is rightfully yours and was not used illegally. Although your attorney may sometimes be able to promptly reclaim this property for you, property held as evidence will usually by held until the end of the criminal case, including all appeals. For example, the district attorney may hold your coat as evidence, if they believe that it will identify you as the person who committed a crime. If you are arrested for selling drugs, any large sum of cash that you were carrying will probably be held as evidence of the charge. Evidence may also be taken from people who are not charged with any crime, such as witnesses to or victims of a crime. For instance, if your friend borrows your car and is later arrested in your car after he used it to commit a drive-by shooting, your car will be impounded and kept as evidence in that crime.
d. CONTRABAND: This is property that has been taken or confiscated because it is a crime to have it. This category includes illegal dugs, unlicensed handguns, switchblade knives, forged papers, counterfeit money, or fake credit cards. If you have been charged with possession of contraband, it will be held as evidence while your case is in court, and may be destroyed afterwards.
- How do I get my property back?
- You should check with your attorney before making a request to have any property released to your possession. How to get your property back depends on whether the property was taken as contraband or for safekeeping, evidence/investigation, or forfeiture.
a. SAFEKEEPING: upon request by the property’s rightful owner or his appointed representative the law enforcement agency property clerk should release property taken for safekeeping. If you are held in custody while your case is pending, property held for safekeeping can be obtained by a friend or relative who has your receipt, a notarized letter from you which authorizes that friend or relative to claim your property, and proper identification. You may also apply for the return of your property by mail.
b. FORFEITURE: If the property is being held for forfeiture, you have a right to notice and a hearing prior to the property being permanently taken from you. You should consult with your attorney to assist you with the forfeiture process.
c. EVIDENCE/INVESTIGATION: If the property is being held as evidence, you will first need an order from the court to release property.
d. CONTRABAND: Contraband – property that is illegal to possess like narcotics that you have without a prescription – will not be returned.
Interactions with police
Interactions with law enforcement can be intimidating. These contacts are most often filled with surprise, fear, confusion and other forms of severe discomfort that affect human decision making. Keep in mind these tips if you find yourself stopped by a law enforcement officer
- Be Mindful Of Your Conduct
- Carefully follow all instructions the officer gives to you. While this nation is built on freedom of speech and thought, if you want to minimize your contact with the officer, it is helpful to speak only when asked questions. While you have a right to remain silent (see below), the officer can expect you to tell him your accurate name and address. Make no unnecessary moves, and keep your hands in clear view.
- Remember Your Rights To Remain Silent And To An Attorney
- If you are stopped by law enforcement, keep in mind the Miranda warnings made popular in television programs:
You have the right to remain silent
Anything you say can and may be used against you in court
You have the right to an attorney before and during any questioning
If you cannot afford an attorney, one will be appointed to assist you
It is always better to have an attorney assist you during law enforcement questioning. Many people feel they can easily handle any contact with law enforcement, but police interrogation methods are formulated based on hundreds of years of scientific study, to create the maximum level of human discomfort for the person being questioned. Accordingly, if you are questioned by law enforcement, it is essential for you to keep these rights in mind, and to inform the officers you want an attorney immediately. State clearly that you wish to have an attorney present before and during any questioning. If law enforcement continues to question you after you have requested an attorney, repeat your request for an attorney and otherwise remain silent.
- Children under 16 years should tell officers to contact a parent or guardian, and wait until the parent or guardian arrives. Children should not answer questions until a parent or guardian arrives. Children and adults should also tell law enforcement to have an attorney present before and during any questioning.
- Advisement Of Rights?
- IN ORDER TO QUESTION YOU?
Police officers must advise a person of his Miranda rights (above) only if the person is: 1) a suspect; 2) “in custody;” and 3) being questioned. DO NOT RELY ON LAW ENFORCEMENT to advise you of your rights. The fact that law enforcement does not advise you of your rights does NOT make the arrest unlawful.
IN ORDER TO SEARCH YOU?
There is no requirement for law enforcement officers to advise a person of his rights before searching the person or his property. However, law enforcement may search you or your property only under certain circumstances. This is a very complicated area of the law; check with an attorney about your situation.
In general you have the right to refuse to be searched, or to have your property searched. However, in limited circumstances, law enforcement can search you or your property without your consent. Do not resist a search, but clearly state you do not consent. If law enforcement has a search warrant, ask for a copy of the warrant.