Whenever someone is charged with a crime in Idaho and taken to jail, there is a possibility that they will need to be bonded out. Every case is different. Sometimes when someone is arrested on a warrant, the warrant is a “book and release” warrant, which means that the individual arrested is taken to jail, booked into the system, and then released. Usually book and release warrants are issued by the judge to get an individual’s attention.
However, in other cases, when someone is arrested, a bail will be set and a bond will need to be posted to get out of jail. There are commonly 2 ways to bond someone out: 1) by paying an amount equal to the bail set by the judge or bail schedule, or 2) through a bail bondsman. Property bonds can be used as well, but are less common.
-Paying an amount equal to the bail (“cash bond”): This is a simple concept, basically if the bail is set at a certain amount, if someone pays cash in an equal amount, they will be able to be released from jail. If they show up to all court hearings, the amount paid will be returned or will be used to offset any fees issued by the court.
-Through a bail bondsman: This is a little more complicated. Oftentimes bail is set at an amount that is too high to pay in cash, check, money order, etc. In these circumstances, a bail bond company can be used to post the bond. Typically a bail bondsman charges 10% of the total amount of bail to post the bond. For example, if a judge sets bail at $10,000, it will cost someone $1,000 to be released from jail. The $1,000 will not be returned. The bail bond company keeps it. It’s how they make their money.
Bail bondsmen typically give discounts for someone who has hired a private lawyer or has a military background. They typically cut the rate to 8% of the total bail amount in these circumstances. After the cash is paid to the bail bondsmen, they basically cover the rest in hopes they are posting for will show up to court. Bail bondsmen will sometimes take payments for the 10%/8%, however, depending on the amount, they may require property to be put up as collateral.
How is the Amount of Bail Determined?
There are essentially two ways that bail is set: 1) is by the misdemeanor bail bond schedule, and 2) a judge sets bail.
The Misdemeanor Bail Schedule: For some misdemeanor offenses, there is an automatic bail set according to the Misdemeanor Bail Bond Schedule in Idaho Misdemeanor Criminal Rule 13. What this means is that when someone is arrested on a new Misdemeanor offense, for example, a DUI, there is a fixed amount set in the bail bond schedule that will need to be posted for the individual to bond out. The amounts differ depending on the charge and whether the individual arrested is a resident or non-resident. For example, on a First Offense DUI, an Idaho resident will need to post bond of $500 while a non-resident will need to post bond of $1,000 to be released.
Bail Set by a Judge on New Charges Without a Warrant:
In other circumstances, the bail amount can be set by a judge at an Initial Appearance after the individual has been arrested. There are specific charges that require someone to see a judge before they can be released. These charges include Domestic Violence style charges, No Contact Order Violations, Civil Protection Order Violations, etc. When someone is arrested on a new Felony without a warrant, they will typically need to be seen by a judge as well. After the arrest, the person will need to go before a judge within 24 hours of the arrest. This is called an Initial Appearance. This is required by Idaho Criminal Rule 5.
When the person goes in front of the Judge at the Initial Appearance, the prosecutor and criminal defense lawyer will make arguments regarding how much the bail should be. There are factors that the judge will consider when setting a bail amount. The factors are established by Idaho Criminal Rule 46. They include the following:
1) the defendant’s employment status and history, and financial condition;
2) the nature and extent of defendant’s family relationships;
3) defendant’s past and present residences;
4) defendant’s character and reputation;
5) the persons who agree to assist the defendant in attending court at the proper time;
6) the nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty;
7) defendant’s prior criminal record, if any, and, if defendant has previously been released pending a trial or hearing, whether defendant appeared as required;
8) any facts indicating the possibility of violations of law if defendant is released without restrictions;
9) any other facts tending to indicate that defendant has strong ties to the community and is not likely to flee the jurisdiction; and
10) what reasonable restrictions, conditions and prohibitions should be placed on defendant’s activities, movements, associations and residences.
After the judge hears argument related to the factors and any other relevant information provided by the prosecutor and criminal defense lawyer, the judge may set a bail amount. All judges are different in how they view bond. Some are notorious for setting high bonds, others are more willing to issue low bonds. A lot has to do with the standards set in the jurisdiction regarding bond amounts as well.
Bail set as part of an arrest warrant:
Oftentimes when someone is charged with a crime, it is after a warrant has been issued. In these cases, paperwork is submitted to a Judge by the prosecutor that requests a warrant. Part of the warrant typically includes a bail amount to be set. Usually the prosecutor will provide a court with information related to the person to be arrested, such as criminal history. This is a very informal request. The judge will then make a decision regarding the amount of bail. What this means is that if the person is arrested, they can bond out on the amount without seeing a judge first. However, all is not lost if the original amount cannot be posted. The judge can still decide to lower the amount once the person arrested is brought before them after they are arrested on the warrant.
Bail Set for Failing to Appear:
Another way a bail amount is set is when someone fails to appear at a hearing. If an individual fails to appear, the judge may issue an arrest warrant on the record and set a bail amount based on the circumstances. Again, if the person arrested is able to post a bond amount equal to the amount of bail set by the judge, they can bond out before seeing a judge; however, if they are not able to post the original amount, they may have to wait to see a judge to get the amount lowered to an amount they can post.
What Does it Mean to be Released on Own Recognizance or OR’d?
Just because a bond is requested by a prosecutor, does not mean that a bail amount is always set. A judge can decide to not require a person to post bond and can just allow them to be released pending the charges. This is commonly referred to as “an OR”, which means Released on Own Recognizance.
How can an Idaho Criminal Defense Lawyer Helps with Bond?
Custody status can have a major impact on a case. It can impact strategy, time to prepare, and ultimately the overall result of a case. For example, even if a person pleads guilty or is found guilty in a case, if they are out of jail pending trial, their behavior while out can have a major impact on whether a judge decides to send them to jail as part of sentencing. Furthermore, if a criminal defense attorney is able to argue a significant reduction in bond, this can be very meaningful for a defendant financially and may have an overall impact on the resources available for a case. For example, if a criminal defense attorney is well prepared and makes convincing bond argument at an Initial Appearance, it might not just impact a Defendant’s freedom, but it could also mean the difference of tens of thousands of dollars to a Defendant, which can then be more effectively used to fight a case. In other words, how your criminal defense lawyer handles bond can have a major impact on a case.
Aaron Hooper, Attorney at Law has significant experience in arguing bond. Aaron Hooper has participated in hundreds if not thousands of bond hearings either for the prosecution or as a criminal defense lawyer. Contact us now if you have further questions related to bail or bonding out your loved one.