Written by attorney Andrew Taylor Morgan

Bail Basics and Alternatives to Posting Bail

In the event of an arrest, it is essential to understand the idea of bail and how it functions. Seeking the counsel of a dedicated criminal defense attorney will help you fully understand your rights and the conditions of your bail.

What is bail?

Bail is an agreement that will allow you to leave jail if you meet certain conditions. For example, you may be asked to "post bail," which means that you will need to pay a certain sum. In addition you must agree not to violate any terms of the bail agreement. Should you ignore the court-ordered restrictions set forth in the bail agreement, you may end up back in jail.

The court is required to set your bail after your arrest or after your first appearance in court. However, if you are arrested for a minor infraction, you may be eligible for "stationhouse bail." Stationhouse bail will be relatively minimal compared to court-ordered bail amounts, but this will depend on where you live and whether the arresting officer is allowed to proceed with this type of bail. Most of the time the court will set bail, and ultimately you are never entitled to stationhouse bail.

Posting bail

Should the bail amount exceed your ability to pay, your criminal defense attorney will advise you about the option of utilizing a bail bond agency to post bail and leave jail. A licensed bonding company will need to agree to your arrangement, but if they accept, the company will post bail for you once you have paid them a fee. Bail bond agencies may be useful because they are already highly integrated with the system and can obtain results for you swiftly. The agency then becomes the suretor. Also, agency fees are typically not refundable.

Risks associated with using a bond agency

Keep in mind that bail bond agencies are not without risk. You may be surprised to hear that a bounty hunter now has the common law right to arrest you for failure to appear, and may come after you, the "absconding defendant," under full authorization of the suretor. After the arrest, the bounty hunter can return you to the jurisdiction. This can be dangerous if you get tangled up with these amateur lawmen.

Alternative options for posting bail

When exploring methods of posting bail following an arrest, it’s important to consider all options at hand. While a bail bond agency may provide a quick way to leave jail, a qualified criminal defense lawyer may advise you that other bail options will lead to a much stronger case and a more satisfactory conclusion for you and your lawyer.

Surety and real property bonds

Surety bonds involve a third party, usually a friend or a relative, who will post collateral and sign this bond as a surety in order to have you released from jail.

With a real property bond, it is not a suretor but your own property that helps you secure your own release. What this entails is the use of your home as collateral to post bail. In some cases, a friend or relative may agree to use their own home as collateral.

This is an interesting option for several reasons, including the fact that you (or the suretor) won’t lose any interest that could have been earned on your collateral had you not used it for collateral. Also, you won’t expend any interest charged if you wanted to seek a home equity loan or a mortgage, specifically to fund your own bail. A real property bond also provides you with the opportunity to utilize other funds for legal defense and other necessary expenses.

How does a property bond function?

Should you and your criminal defense lawyer decide that a property bond is your best option, you will first need to have the property appraised. The court must know the amount of equity in your property or at least the county’s assessed value in order to fully evaluate the home’s use as collateral. In addition, the court will require official documents such as your deed, mortgages or liens. In some cases they may accept settlement papers or a lender’s statement to prove the amount of equity or how much was already paid on the principal, but this will depend on the court.

Although real property bonds may be a time-consuming process, it may be worth a longer stay in jail to ensure that your defense lawyer has all leverage needed to present a strong case in court. Using a real property bond will reflect positively on you, whether it ensures that you will show up in court to avoid losing your home, or whether it demonstrates that a friend or family member finds you trustworthy enough to invest this collateral in your case.

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