Following a person's arrest for DUI, he or she may be released on their own recognizance ("OR") by the law enforcement agency. This means the person is released from custody as long as they promise to appear in court. The person is usually asked to sign a written promise to appear which provides the court location and date of appearance. However, other times the law enforcement agency may set bail. This means the person has to pay money to be released from custody prior to appearing in court. Bail is more frequently set for repeat DUI offenders and felony DUI cases involving death or injury. The initial decision whether to set bail or to release a person on their OR is decided by the arresting agency. However, once the court has jurisdiction the Judge can then make his or her own orders which may differ from those originally set. For example, a person who was released OR may appear in court and the Judge may decide to set bail. Thus, the person will be taken into custody unless or until bail is posed. This could happen in a situation where the Judge learned additional information about the person that was not previously known to law enforcement, for example the person had two prior DUI convictions. Bail is much more likely to be set for a person facing a 3rd DUI offense than it will be for a person facing a 1st or 2nd offense. On the other hand, a person who appears in court in custody, and who has not posted bail, may be released by the Judge on their OR as long as they promise to appear for all future court dates.
The setting of bail by the Court has long been within its discretion. Judges may follow the local county bail schedule, which is used by law enforcement when setting bail, but are not required to do so. Factors that traditionally have been considered when setting bail include the severity of the crime charged, the person's criminal record, the danger posed to society if released, the person's ties to the community, and whether they are a flight risk, e.g. will they flee rather than show up in court. The California Court of Appeal recently issued a decision which provided guidelines to trial courts for the setting of bail (In re Humphrey). The Court of Appeal instructs trial courts to first determine whether a person is ineligible for bail because they present a danger to the public or victim. If the court finds by clear and convincing evidence that no condition of supervision or alternative to custody will protect the public or victim, the court may order "no bail" for the person charged. This finding would be unlikely in most DUI cases. Possible exceptions could be made for repeat DUI offenders who continue to drive without a valid license and who disobey court orders prohibiting them from driving any vehicle without an ignition interlock device (IID) installed.
If the person charged is suitable for bail, as are most persons charged with DUI who have not already been released OR, the Court of Appeal instructs the trial courts to select an amount of money that is sufficient to secure the person's future court appearances. This determination should include the traditional factors, including the person's ties to the community, including employment, duration of residence, etc., the person's record of appearances at past court hearings, and the severity of the sentence if convicted. The courts should not base their decision on the bail amount without considering all of these factors. The Humphrey decision emphasized the bail amount must also be adjusted depending on the person's ability to pay. This is intended to prevent a disproportionate number of low income people from remaining in custody solely because they cannot afford to post bail. The courts should consider non-monetary alternatives for these individuals.
If bail has been set against a person who has been charged with DUI it is likely due to the person having prior DUI convictions, misdemeanor or felony, or due to the current case being a felony. CONTACT our office today for a free and confidential consultation with DUI Lawyer Robert D. Berglund. He will provide you with a thorough consultation about your case and the options you have going forward. If you are the friend or family member of a person who is currently in jail due to pending DUI charges, CONTACT us to discuss how Mr. Berglund can help getting the bail reduced pursuant to the guidelines established by Humphrey decision.