How Do I Request a Bail Review? The process to request a bail review varies by county in Massachusetts. It can involve a written motion, a phone call, or a letter. Generally, your criminal defense lawyer will be able to request bail review and get the court date scheduled. When Does a Bail Review Occur? The bail review hearing can happen as soon as the day after your arraignment in district court. Most courts in Massachusetts hold these hearings by video - the defendant is on video in jail, while the defense attorney, prosecutor, and judge are in the courtroom. What Does the Superior Court Consider? During a bail review, the superior court judge will consider all of the bail factors - the seriousness of the charges, the evidence against you, your criminal record, your record of appearing in court, your employment, and your connection to the community. The Court can also consider whether you will abide by conditions, such as staying away from the victim, reporting to probation, or GPS monitoring. What If the Superior Court Refuses to Lower My Bail? If the Superior Court refuses to lower your bail, you can always go back to the District Court to see whether they will lower your bail. This may not happen immediately, though.
Do I have a constitutional right to bail? To start, statutory law in Tennessee starts with the presumption that a defendant should be released on his or her recognizance, meaning that the defendant should not have to pay bail. If you are not released on your own recognizance, every defendant that is accused of DUI is entitled as a matter of both constitutional and statutory right to be released on bail, no exception. In short, you are entitled to be released from jail because one of your most fundamental rights as a citizen of the United States is the presumption of innocence and thus, keeping you in jail undermines the idea that you are to be presumed innocent. Additionally, the United State Supreme Court also acknowledged that you can help you lawyer defend your case better if you are out of jail. Why is my bail amount greater than my friend’s bail? That is a great question that frustrates many defendants. Bail has two primary purposes: (1) insuring the defendant appears in court; and (2) insuring the safety of the public. As such, if someone is viewed as a larger threat to the public, their bond will be higher than someone who is less of a threat. Similarly, someone who has previously been charged with a failure to appear in court will likely have a higher bail. Additionally, the court may place you on special pre-trial conditions of bail in addition to your bail amount, or your lawyer can request the addition of pre-trial conditions in an endeavor to request for a lower bail amount. For example, f you have one or more prior convictions for DUI, the court has no choice but to consider special conditions of bail, which includes the use of an ignition interlock device or an electronic monitoring device with random drug or alcohol testing. Multiple DUI offender: Will the court reduce the special conditions of my release? First, your lawyer should always attempt to get you released on your own recognizance, as that is the presumption as discussed previously. If the court refuses to release you on your own recognizance, the court is constitutionally required to set bail at an amount that is no higher than an amount that will fulfill the two purposes set forth above. Of course, the dollar amount may be arbitrary. If you believe that your bond amount is far too high then your lawyer should file a motion to reduce bond. A motion to reduce bond should cover the two purposes of bail set forth above. For example, to prove that you will appear in court, your lawyer should explain your ties to the community to prove that you are not a flight risk and unlikely to miss court. Additionally, if the court makes one of the special conditions of bond one of your bond conditions, you can request the court to reduce those conditions. For example, some people’s jobs may cause them to be unable to wear an electronic alcohol monitoring devices. In such a scenario, your lawyer can make a motion to reduce your bond conditions. I violated a bond condition, will my bond be revoked? Maybe. It is true that your right to bail may be revoked or taken away from you if you violate a condition of your release, commit another criminal offense while out on bond or obstruct the progress of your case. It is also true that a violation of a condition of your release may result in a motion by the state to increase your bond amount, just as you have the right to oppose the motion or move for a reduction. However, your lawyer will discuss your specific violations of your release with the district attorney and potentially the judge in an endeavor to avoid your bond being revoked.
What is bail and what happens if I cannot pay the amount determined at the hearing?
Bail Change Highlights Effective January 1, 2020, the reforms in NYS laws governing bail have been dramatically revised. For Misdemeanor bail, requiring the posting of money bail disappears with only two exceptions: (1) sex offense misdemeanors, and criminal contempt involving domestic violence. Statistically, it is estimated that about 90% of people arrested for misdemeanors will no longer have to post cash bail. Equally important, pretrial detention (“remand”) disappears. For Felonies, both cash bail and remand remain permissible but options are to be considered including release on the defendant’s own recognizance or non-monetary conditions such as pretrial supervision. Generally, if a felony is non-violent, bail and detention will not be applied (except for cases involving sexual activity with children), whereas for violent felonies, 9 criteria apply. One estimate of the number of violent felons that will have bail/pretrial detention imposed is about 90%, so the change there is minimal. When bail is set, alternative forms of security are available, and at least three forms of bail must be set. These include a "partially secured" bond allowing one to pay 10 % or less of the total bail amount. If the defendant disappears, only then will the balance have to be paid. The " unsecured bond" works the same way, but no money at all is put down. Also, in order to impose bail now, judges have to consider ability to pay, hardship imposed, and availability of getting any kind of bond. Courts are also encouraged to use release on one's own recognizance (ROR) pending case outcome. The bail reform law also favors courts to release defendants on ROR while their cases are pending unless they pose “a risk of flight.” It is still improper for a court to base an accused's perceived future dangerousness or risk to public safety as a reason to deny ROR. Where a risk of flight exists, judges must set the “least restrictive” non-monetary conditions to ensure appearances, and must explain their decision “on the record or in writing.” Examples include supervised release, additional court date reminders, travel restrictions, and limitations on firearms or weapons possession. The court can only order supervision when less intensive conditions cannot reasonably assure court attendance. Other points of interest • the courts must now certify one or more agencies in the county, public or nonprofit, responsible for supervising defendants release with non-monetary conditions. • Notices of appearance dates shall now be available by text, phone, email, or first-class mail as selected by the defendant's preference. • Electronic monitoring, where allowed, can be used only if no other realistic non-monetary condition(s) is available, and if more than 60 days, requires renewal after a subsequent court hearing. Importantly, such status counts as being "in custody" for purposes of applying the laws which impose time limits of six days from arrest to grand jury action in felony cases or five days from criminal court arraignment to the filing of corroborating documents in misdemeanor cases. • The new law prohibits courts from issuing a warrant for 48 hours whenever a defendant fails to appear, unless the defendant is charged with a new crime or there is evidence of a “willful” failure to appear, enabling one's attorney to locate and advise the defendant to return voluntarily.
If I am detained does that mean I am arrested? It depends. Detained does not mean arrested. In Florida, knowing whether you are arrested or just being detained is a question that has significant implications. Among other consequences, implications can impact speedy trial rights and Miranda rights. The right in Florida to a speedy trial is triggered only “(1) when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged or (2) when the person is served with a notice to appear in lieu of physical arrest.” Fla. R. Crim. P. 3.191(d). Davis v. State, No. 5D17-745, 2018 WL 4169333, (Fla. Dist. Ct. App. Aug. 31, 2018). The Melton analysis to determine arrest controls on the issue of detained vs. arrested in Florida. As announced last week in the 5th DCA’s opinion in Davis v. State, all four elements of the Melton analysis must be present in order to make a determination of arrested or not. What is an Arrest in Florida? In the Melton case,”the Florida Supreme Court defined an arrest as follows: It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is “the apprehension or taking into custody of an alleged offender, in order that he [or she] may be brought into the proper court to answer for a crime.” When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Melton, 75 So.2d at 294 4 All four Melton elements must be present to conclude that an arrest has occurred. Brown v. State, 623 So.2d 800, 802 (Fla. 4th DCA 1993).” Davis v. State, No. 5D17-745, 2018 WL 4169333, at *3 (Fla. Dist. Ct. App. Aug. 31, 2018). Depending on the specific facts of the case, it is possible for a person to be detained thereby invoking Fourth Amendment protections and not be arrested for purposes of the Sixth Amendment right to Speedy Trial. If you are arrested, it is imperative to contact an experienced and aggressive criminal defense attorney. Please contact our office or call 850-681-7777 if you or a loved one are in need of a criminal defense lawyer.
Arrest and Arraignment on DWI charges Most of my DWI clients are otherwise law abiding citizens with little or no experience with the criminal justice system. Hiring an experienced and knowledgeable DWI attorney as soon as possible can be vital to favorable result. I receive calls at 3:00 a.m. from people who have been arrested and charged with DWI and need answers to questions as they are being processed. It is common for me to be retained by family members immediately, and I then call the Police Department and speak with the arrested driver. The first thing I do is put the police on Notice that I represent the person charged with DWI and require that the Police not question my client outside my presence. This is important, because many people who have no experience with the criminal justice system feel obligated to cooperate with the police and answer questions. Answering police questions can feel like the right, moral or ethical thing to do at the time. However, legally it can put you in great jeopardy. When you are represented by a lawyer who promptly puts the police on Notice of your representation, the questioning stops. Importantly, if the police do obtain admissions or statements against your interest after your lawyer has put the police on Notice, then the statements are subject to suppression and may not be admissible against you. Arraignment: Suffolk and Nassau County Police Department DWI arrests are almost always held overnight and brought before a judge the next morning for arraignment. Suffolk and Nassau County District Court's are open for arraignments 365 days a year. It is important to have a knowledgeable and experienced DWI attorney appear with you or your loved one at the arraignment. The benefits I provide to my clients when I appear at a DWI arraignment include the following: getting your case called earlier, so that you do not spend additional unnecessary time in custody; getting you Released on your Own Recognizance (ROR) or get bail lower than it typically is without an experienced local attorney; getting you a prompt hearing for a Hardship License so that you can drive to and from work; and review the formal charges and reserving and protecting any rights you have. Hardship and Conditional Licenses Hardship License: Most drivers have their Driver's License or privilege to drive suspended at the time of their arraignment on a DWI charge. Occasionally, I have successfully argued that someone's license should not be suspended at that time. For those who submit to chemical tests, including breath tests at the police precinct, I arrange for a prompt Hardship Hearing where I can typically get my clients the ability to drive to and from work. There are specific rules and a detailed procedure as to how to successfully make such an application. I have been successful in obtaining Hardship Driving Privileges for most of my DWI clients. Conditional License: If your license is suspended at arraignment, you are typically eligible to obtain a Conditional License from the Department of Motor Vehicles, 30 days after your arraignment. This Conditional License provides more freedom and is more flexible that a Hardship License. Refusal of Chemical or Breath tests: Driver's who refuse chemical or breath tests after a DWI arrest are not immediately eligible for a Hardship or Conditional License. However, you are entitled to a hearing at the Department of Motor Vehicles within 15 days of your arraignment. I cannot stress enough how vitally important it is to have an experienced and knowledgeable DWI attorney representing you at this hearing. These hearings have very specific requirements. Losing this hearing will result in your license being revoked for one year. If we lose a hearing and have grounds for an appeal, I immediately file for an appeal, which typically results in restoration of my client's driving privileges while the appeal is pending. This is not something that attorneys who do not have experience with DWI cases will know how to properly handle. Many attorneys who do handle DWI cases also may not know how to successfully file and argue an appeal and get your driving privilege back. Plea Offers and Trials I have won over 60 DWI trials and have lost only one. I generally look to do two things when hired to represent my clients with a DWI charge. One, prepare the case for trial. Two, work to get the best possible plea bargain offer. As an attorney who has successfully tried many DWI cases, the prosecutors I meet with know that they have a formidable opponent if they take the case to trial. The vast majority of DWI cases do resolve with plea bargains. Prior to speaking to the prosecution, I obtain Discovery and I review the materials to find any and all flaws in the prosecution case. I also ask many of my clients to provide Good Character Letters from people who know them and who can attest to their good character. Lastly, I refer many of my clients to obtain a substance abuse evaluation. I approach the prosecutors with an argument that focuses on the flaws in their case, and also an argument that you, my client is an upstanding member of our community and deserves the benefit of the doubt. A common way to resolve a DWI case is to persuade the prosecution to reduce the charge from the crime of Driving While Intoxicated, which is a misdemeanor crime, down the traffic infraction of Driving While Impaired, which is not a crime and not a misdemeanor.