Criminal Law Article


Bail

What is bail?

Bail is an amount of money or the equivalent value in property that is pledged to a court in order to secure the release of a person who is in custody after being charged with a crime but has not yet been tried for that crime. The purpose of bail is to permit the person who is facing a criminal trial to go home before the trial begins, while also ensuring that they will return for their trial. In exchange for the right not to remain in jail or prison while awaiting their trial, they must pledge to the court an amount of money or the equivalent value in property which will be forfeited if they fail to appear, as ordered by the court, for their trial.

A person who is released on bail, but fails to show up for their trial, or “skips” (or “jumps”) bail, will have a warrant issued for their arrest; may be charged with the additional criminal offense of “failure to appear” (A.R.S. §§ 13-2506 & 13-2507); and will lose whatever was pledged in bail. If the person who is released on bail makes all their required appearances in court both before and during their trial, then whatever was pledged in bail will be returned.

Does a person accused of a crime have a right to post bail?

Under the Eighth Amendment to the United States Constitution, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Arizona Criminal Code (at A.R.S. § 13-3972) similarly states that a person who has been charged with a crime “shall not, before conviction, be subject to more restraint than is necessary for his detention to answer the charge.”

The Arizona Constitution (Article II, Section 22) says that everyone who has been charged with a crime must be permitted to post reasonable bail in order to secure their release while awaiting trial (unless an exception applies, as discussed below). This general right to post bail reflects the principle that pre-conviction confinement should be as limited as possible, and not a form of pre-conviction punishment.

Why and how is bail set?

The Arizona Constitution (Article 2, Section 22) and the Arizona Criminal Code (at A.R.S. § 13-3961(B)) describe the purposes of bail as:
• to assure that the person facing trial will appear in court
• to protect against the intimidation of witnesses
• to protect the safety of the victim, any other person, and the community as a whole.

According to the Arizona Criminal Code (at A.R.S. § 13-3967(B)), the decision by a court to set bail must take a number of factors into account, including, in addition to the overall “flight risk” of the person facing trial:
• the views of the victim
• the nature and circumstances of the criminal offense for which the accused is facing trial (the more serious the crime, the higher the bail amount will be)
• the perceived risk to public safety that would result from releasing the accused back into the community
• the criminal history of the accused (the more extensive that history, the higher the bail amount will be, and bail may not be offered at all)
• whether the accused has a prior arrest or conviction for a serious offense or violent or aggravated felony or an offense in another state that would be a serious offense or violent or aggravated felony if committed in Arizona
• the length and depth of the community ties of the accused
• the family ties, employment status, financial resources, character, and mental condition of the accused
• the results of a risk or lethality assessment of the accused in a domestic violence context
• the weight of the evidence against the accused
• whether the accused is possessing or using any substance any illegal or dangerous drug
• the past record of appearance by the accused at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings
• whether the accused has entered or remained in the United States illegally
• whether the principal residence of the accused is in Arizona, in another state, or outside the United States altogether.

When is bail not allowed?

Under the Arizona Constitution (Article 2, Section 22) as well as the Arizona Criminal Code (at A.R.S. § 13-3961(A)), a person who is in custody and facing a criminal trial may not be offered bail at all if “the proof is evident or the presumption great that the person is guilty of the offense charged” and the offense charged is one of the following:
• a capital offense (a crime that is potentially punishable by death)
• sexual assault
• sexual conduct with a minor who is under fifteen years of age
• molestation of a child who is under fifteen years of age
• a serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally.

Under the Arizona Constitution (Article 2, Section 22) as well as the Arizona Criminal Code (at A.R.S. § 13-3961(D)), a person who is in custody and facing a criminal trial also may not be offered bail at all if they have been charged with a felony offense and the state certifies by motion and “the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged.”

What is a bail bond?

Arizona law (at A.R.S. § 20-340(1)) defines a bail bond as “any contract that is executed by a surety insurer for the release of a person who is arrested or confined for any actual or alleged violation of any federal, state or, local criminal law where the released person’s attendance in court when required by law and obedience to orders and judgment of any court is guaranteed.” (A “surety insurer” is an insurance company.)

If a person who is facing a criminal trial (1) pays their bail in cash then (2) fails to appear in court when so ordered, then the court will keep that cash. But if a person who is facing a criminal trial (1) pays their bail by bond then (2) fails to appear in court when so ordered, then the court will ask the surety insurer to pay the cash value of the bond, and the surety insurer in turn will go after whomever purchased the bail bond in the first place.

What is a bail bondsman?

Arizona law (at A.R.S. § 20-340(2)) defines a bail bondsman (or “bail bond agent”) as any individual who is “appointed by an insurer through a power of attorney to execute or countersign bail bonds in connection with judicial proceedings and who receives or is promised monies or other things of value for that service.”

A bail bondsman is therefore an agent of a surety insurer. He essentially acts as a middle-man between the person who purchases a bail bond and the insurance company that will be asked to pay the cash value of that bail bond to the court if the person facing trial “skips” bail.

Under Arizona law (at A.R.S. § 33-3969), the local sheriff or the keeper of the jail in which a person who is charged with a crime for which bail is permitted (a “bailable offense”) must provide that person with a list containing the names and telephone numbers of the licensed bail bondsmen in the county. But they cannot recommend a particular person or company.

What rate may a bail bondsman charge?

Under Title 20, Chapter 6 of the Arizona Administrative Code (at R20-6-601(E)(1)), a bail bondsman may only charge premium rates that (1) are the rates most recently filed and approved by the Arizona Department of Insurance and (2) are posted “in a conspicuous manner” at the bail bondsman’s place of business.

What is a premium?

A premium is the non-refundable fee that will be charged by a bail bondsman in return for a bail bond, usually 10% of the total amount of the bail bond. (So, for example, if bail is set at $20,000 and the accused has no money at all and requires a bail bond of $20,000, then the premium will be $2,000.)

What is collateral?

Collateral is real or personal property – such as a house or car or jewelry – that has an agreed-upon value and may be used to secure a bail bond by a person who cannot pay the bail amount in cash.

When bail is set at a certain amount, and the person facing a criminal trial does not have access to the financial resources required to pay that amount – plus the premium – in cash, that person or a friend or family member can put property up “as collateral” in order to get a bail bondsman to post a bail bond of equivalent value.

If the person who was charged with the crime fails to appear in court when so ordered, the bail bondsman will have the collateral as a guarantee that the bail bondsman will be reimbursed the amount that he gave to the court. If the accused does fail to appear, and the bail bond is forfeited, then the bail bondsman will demand that whomever purchased the bail bond pay the entire amount. If that person cannot pay the entire amount, then the cost of the bond will be covered by the sale of that person’s collateral.

What collateral may a bail bondsman require?


Under Arizona law (at A.R.S. §20-340.03), the collateral required by a bail bondsman “must be reasonable in relation to the amount of the bond” and it must always be returned when the case is concluded (unless the bail bond has been forfeited because the accused did not appear in court).

How must a bail bondsman handle collateral?

The Arizona Administrative Code (at R20-6-601(E)(4)) states that a bail bondsman who receives collateral in connection with a bail bond transaction must do so “in a fiduciary capacity” (essentially as a trustee) and, prior to any forfeiture by the accused, keep the collateral separate and apart from other funds, assets, or property.

The collateral is provided to the bail bondsman only temporarily, essentially as a means of securing a short-term loan. This is why the collateral must be returned to whomever deposited it “as soon as the obligation, the satisfaction of which was secured by the collateral, is discharged” (or, in other words, as soon as the accused has made every required appearance).

Once an order is entered that terminates further liability under the bail bond, the collateral must be returned. Only if the collateral was deposited as security for unpaid premium charges, and those premium charges remain unpaid even after the accused has been released, and the bail bondsman has demanded their payment, may the collateral be sold and used to make the payment.

What (else) may a bail bondsman not do?


Under Arizona law (at A.R.S. § 20-340.03), a bail bondsman is prohibited from (among other things):
• soliciting business in or around any place where prisoners are confined or in or around any court
• receiving or collecting for an attorney any money or other items of value for any attorney fee, cost, or other purpose on behalf of an arrestee, unless a receipt is given
• participating in the capacity of an attorney at a trial or hearing of a person on whose bond the bail bond agent is the surety
• accepting anything of value from the person facing trial except the premium – which must be known and agreed to in advance – and expenses (with the exception of reasonable collateral)
• directly or indirectly charging or collecting money or other valuable consideration from any person in any bail bond transaction or in connection with any bail bond transaction except for the purpose of:  
 • having that person pay the premium at the rates established by the surety insurer and approved by the Arizona Department of Insurance;
 • having that person provide collateral
 • having that person reimburse the bail bondsman for actual and reasonable expenses incurred in connection with the individual bail bond transaction (such as, for example, guard fees, notary fees, and long- distance travel costs).

Who regulates the bail bonds industry?

The bail bonds industry is regulated by the Arizona Department of Insurance.

What if I have a complaint involving a bail bond transaction?

If you would like to learn more about your rights and responsibilities or to discuss a situation involving a bail bondsman or to file a formal complaint, you may contact the Arizona Department of Insurance in person, by telephone, by email, or through online submission, as described at the following address: https://insurance.az.gov/consumers/help-problem/filing-complaint.

For specific legal advice concerning a bail bonds dispute, please contact an attorney. There are links to free and low-cost legal services on this website.

How can I protect myself?


Anyone who is considering purchasing a bail bond in order to secure the release from custody of a person who is facing a criminal trial should always do each of the following:
• ask questions of the bail bondsman if any of the terms or conditions of the proposed bail bond transaction are unclear to you
• make sure that every agreement – no matter how small or unimportant it may seem – is recorded in a writing that is signed and dated by both you and the bail bondsman
• read the bail bond contract very carefully to make sure that you understand exactly what you will be responsible for (and ask a relative or friend to review it if necessary)
• never rush into signing a contract (because, as important as securing the release of a loved one undoubtedly is, you must also be careful not to get yourself into trouble as well, because that will only make things worse for everyone).
 
Resources:
AZCourtHelp.org-Criminal Law
Arizona Department of Insurance

Sources:

Arizona Constitution (Article 2, Section 22)
Arizona Revised Statutes (Title 13)
Arizona Revised Statutes (Title 20)
Arizona Administrative Code (Title 20, Article 6)

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