One of the most urgent concerns for anyone who’s been arrested is release from custody. Following a DUI arrest in California, drivers will be released one of two different ways:
They will be “cited out” and released on their own recognizance; or
They post bail.
Sometimes DUI arrestees are released on their own recognizance, also called O.R. release. Prior to their being released, they will be held in custody for a minimum length of time based on their alcohol level, if known. (Most law enforcement agencies have a matrix that lets them know how long they must hold someone based on a particular breath test result.) If the driver’s alcohol level is unknown, because of either the driver’s request to submit to a blood test or because of their refusal to submit to chemical testing at all, then they will be held for a long enough period to satisfy law enforcement’s reasoning that the release of the accused wouldn’t pose a liability issue for the department, usually 12 or more hours. This is because the agency is generally concerned about their liability; if an accused drunk driver is released, only to get behind the wheel and injure someone in an accident, there is liability for injuries caused by that DUI driver.
If they are cited and released, they will receive what looks like an ordinary traffic ticket, letting them know that they are required to appear in court on a particular date and time.
For some DUI arrestees, being released on their own recognizance isn’t an option. This may be because of the seriousness of the offense, other related charges that are being filed in addition to the DUI, because of the failure to provide proper identification, or other reasons. If this is the case, then either bail must be posted, or the defendant must remain in custody.
Bail can be posted in one of two ways:
- Posting cash bail; or
- Posting a bail bond through a bondsman.
There are pros and cons to each.
One way to secure the release of someone who has been arrested is by posting cash bail with the law enforcement agency that made the arrest. Requirements may vary slightly between law enforcement agencies, but generally it means bringing certified funds (such as a cashier’s check or money order) in the full amount of the bail and depositing it with the jailer. There is no additional fee associated with this, and, once the case is finally and completely over, the posted funds will be returned to whomever posted bail.
The advantage to cash bail is that it doesn’t cost anything, other than the loss of the use of that money during the time the case is pending. Unlike a bail bondsman, who is paid a fee for their service, the entire amount of the cash posted is returned at the end of the case.
There are several serious disadvantages to posting cash bail. First, posting cash bail ties up your money. The amount posted earns no interest while in the hands of law enforcement. And criminal cases, including DUI cases, may not conclude for several months, sometimes taking more than a year before they are finally done.
Logistically, posting cash bail can be a problem, since oftentimes people want to get bailed out at times long after banks have closed for the day. Since certified funds are usually required, that means leaving someone in jail where they are scared, perhaps physically at risk, and deeply unhappy.
Perhaps more problematic is that posting cash bail is risky. If the criminal defendant fails to appear in court for any reason (whether as sinister as fleeing the jurisdiction, or as innocent as being stuck in traffic and therefore late to court), the bond is exonerated, and that means the defendant will be taken into custody and whoever posted the bond will have to fight to get the money back.
Because of the risk and inconvenience associated with posting cash bail, many people opt for a bail bondsman instead. With a bail bondsman, there are two components: the premium, and the collateral. The premium is the bondsman’s fee, which may vary, but is usually 10%. (Some bondsmen are willing to charge as low as an 8% premium.) This money is never returned or refunded. This is the bondsman’s fee for posting the bond, and taking the risk that the defendant doesn’t appear in court as promised.
The other component to understand in using a bail bondsman is the collateral. Depending on the size of the bond and other factors, the bondsman may be willing to forego the pledge of collateral, or security. If not, in order to post the bond, the bondsman will require security in the form of equity in something that is titled, such as real estate or an automobile, so that he can file a lien on it.
Conditions of OR Release or Bail
After someone is released on OR release or bail, they will, at some point, be expected to appear in court. At that first court appearance, called the arraignment, the judge in a DUI case will sometimes add additional terms and conditions, such as attendance at AA meetings or community service, that are not sought in other criminal cases.