Your loved one got arrested and is being held in jail. Should you bail him/her out? Not always.
We may be able to convince the judge to release the person "O.R." This could save you thousands of dollars in bail costs....
When someone is arrested and taken to jail, there are a few ways to obtain a release:
- by citation (this is the case with many misdemeanors such as a "typical" first-time driving under the influence arrest),
- by posting bail (California bail laws recognize cash bail, bail bonds, and property bonds), or
- by simply promising to appear for all your court appearances.
This last option is known as an O.R. release (also referred to as a release on your own recognizance). This method of release is an affordable alternative to bail, since the bail for many offenses can go into the six and seven figure range.
But while promising to appear for court sounds simple, there are quite a few laws that limit when and how this option may be exercised.
And that's where we come in. As a law firm comprised of former prosecutors and cops, we understand the California criminal justice system inside and out. As a result, we know the most effective arguments to convince judges to grant O.R. releases.
Below, our California criminal defense attorneys1 explain how to secure release on your own recognizance by addressing the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on California Bail Laws; Bail Hearings; Bail Schedules; California's Arraignment Process; and California Bench Warrants.
As long as you are not charged with a California criminal offense that is punishable by death, you are entitled to an O.R. release unless such a release
- will compromise public safety, or
- will not reasonably ensure your appearance in court.2
Many times, O.R. requests are made at arraignment. During the California arraignment process, your attorney will try to persuade the judge that
- your community ties will keep you from trying to "skip town", and
- that your alleged offense does not present a broader public safety risk.3
Sometimes the judge will ask the prosecutor if he/she has any information that would be helpful in deciding whether to grant or deny an O.R. request. The judge may also ask the prosecutor if he/she has a position on O.R. release. Both of these judicial requests are generally optional.4
However, certain offenses do trigger a formal adversarial hearing (which is conducted in the same manner as a California bail hearing). These include:
- any offense that you allegedly commit while on felony probation or felony parole,
- any offense where you previously failed to appear in court on at least three occasions in the past three years involving a violation of
- a serious felony,
- a violent felony,
- certain California domestic violence laws, and
- specific protective order violations.6
When considering whether to grant an O.R. release to a defendant who has been charged with one of the above offenses, the judge will look at
- the existence of any outstanding felony warrants,
- any information contained in a report by the court's O.R. investigation staff (discussed in section 2, below), and
- any additional information provided by the prosecutor.7
If the offense is a violent felony.and you willfully and without excuse failed to appear on an earlier felony case.California law forbids you from receiving an O.R. release.8
O.R. release conditions
Sometimes proposing bail conditions may be a way for your California criminal defense lawyer to secure an O.R. release from an otherwise unwilling or hesitant judge.9 The only restriction is that these conditions must be based on the specific facts of your case.
Example: If you are charged with a drug offense, the judge can condition your O.R. release on the condition that you enter a drug rehabilitation facility. This condition is "reasonable" because it is aimed at deterring future criminal activity which promotes public safety.10
But even if you are permitted to be released on your own recognizance, there are times when you may not wish to ask for this type of relief.
Many times before a court rules on an O.R. release request, the judge will call upon its O.R. investigative division to recommend whether or not the defendant is a good candidate for this type of release.11
When conducting this investigation, court staff may contact family members, employers, etc. in an effort to verify your community ties and character. This could be good or bad, depending on the circumstances.
As Oakland criminal defense attorney Jim Hammer12 explains, "If, for example, you would like to keep your arrest a secret or prevent the court from uncovering information that it may not otherwise know about, posting bail may be a better option."
And on that note, if you are currently on probation or parole, it may be advisable for you to post bail as quickly as possible. Many times if the court finds out that you are on parole or probation before you are released, it will place a "hold" on your release.
However, if you are released before the court obtains that information, your probation or parole officer will generally allow you to remain free on bail pending the outcome of your case.
California law requires that when you are released on your own recognizance, you sign an O.R. release agreement. This agreement states that you
- promise to appear for all court dates,
- promise to abide by all court-imposed conditions,
- promise that you will not leave the state without first obtaining permission from the court,
- waive extradition in the event that you fail to appear for court and are apprehended outside California, and
- acknowledge that you have been informed as to the penalties and consequences for failing to appear in court.13
If, however, you never execute this written agreement, you haven't technically been released on your own recognizance. As a result, if you subsequently fail to appear for court, you are not subject to any additional penalty for failing to appear for court, since you were never technically released O.R.14
Assuming, however, that all court procedures were followed and that you did execute a written release, the judge will likely issue a California bench warrant for your arrest.15
If you willfully failed to appear in court.and the presumption is that you willfully evaded the court process if you didn't appear within 14 days of your court date.you face the following penalties and punishment:
If you were originally charged with a misdemeanor, failing to appear is also a misdemeanor, subjecting you to a maximum $1,000 fine and a maximum one-year county jail sentence.16
If you were originally charged with a felony offense, failing to appear for court is a felony. Felony "failure to appear" subjects you to up to three-years in the California state prison and a maximum $5,000 fine.17
Call us for help.
If you have additional questions about California's O.R. release laws, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
1Our California criminal defense lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Penal Code 1270 PC -- Release on recognizance; non-capital offense; offense; considerations; public safety; procedure. ("(a) Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a California court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275 [below], that a [California] own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set bail and specify the conditions, if any, where under the defendant shall be released.")
See also Penal Code 1275 PC -- Setting, reducing or denying bail; considerations. ("(a) In setting, reducing, or denying bail, the judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or hearing of the case. The public safety shall be the primary consideration. In considering the seriousness of the offense charged, the judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. (b) In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, the judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code. (c) Before a court reduces bail below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, "unusual circumstances" does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses.")
3Despite the fact that driving under the influence could be considered a public safety risk, first-offense DUIs are arguably one-time offenses that will not further endanger society.which is why first-time DUI suspects are often released either on citation or O.R.
4Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1328. ("Contrary to plaintiffs' claim, the fact that the district attorney's office is not given notice and an opportunity to participate in decisions to grant [California] OR releases prior to court appearances does not violate the "Public Safety Bail" provisions of article I, section 28, subdivision (e), of the California Constitution or the statutory bail provisions of Penal Code section 1274. While these provisions include a requirement that the prosecuting attorney be given notice and an opportunity to be heard regarding releases on bail, neither provision mandates such notice or hearing prior to an OR release.")
5California Penal Code 1319.5 PC -- Persons arrested for commission of new offense not to be released on recognizance without a hearing. ("(a) No person described in subdivision (b) who is arrested for a new offense may be released on his or her own recognizance until a hearing is held in open court before the magistrate or judge. (b) Subdivision (a) shall apply to the following: (1) Any person who is currently on felony probation or felony parole. (2) Any person who has failed to appear in court as ordered, resulting in a warrant being issued, three or more times over the three years preceding the current arrest, except for infractions arising from violations of the Vehicle Code, and who is arrested for any of the following offenses: (A) Any felony offense. (B) Any violation of the California Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1) [otherwise known as California's criminal street gang laws]. (C) Any violation of Chapter 9 (commencing with Section 240) of Title 8 of Part 1 ([California's assault and battery laws]). (D) A violation of Section 484 (theft) [i.e., California's theft offenses]. (E) A violation of [Penal Code] Section 459 (California's burglary law]). (F) Any offense in which the defendant is alleged to have been armed with or to have personally used a firearm [i.e., California firearm offenses].")
6California Penal Code 1270.1 PC -- Violent felonies and specified acts; bail set at unscheduled amount; notice; hearing; statement of decision reasons; threats against victim or witness. ("(a) Before any person who is arrested for any of the following crimes may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, or may be released on his or her own recognizance [in California], a hearing shall be held in open court before the magistrate or judge: (1) A serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, but not including a violation of subdivision (a) of Section 460 (residential burglary). (2) A violation of Section 136.1 where punishment is imposed pursuant to subdivision (c) of Section 136.1, 262, 273.5, 422 [California domestic violence charges] where the offense is punished as a felony, or 646.9. (3) A violation of paragraph (1) of subdivision (e) of Section 243. (4) A violation of Section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party. (b) The prosecuting attorney and defense attorney shall be given a two court-day written notice and an opportunity to be heard on the matter. If the detained person does not have counsel, the court shall appoint counsel for purposes of this section only. The hearing required by this section shall be held within the time period prescribed in Section 825. (c) At the hearing, the court shall consider evidence of past court appearances of the detained person, the maximum potential sentence that could be imposed, and the danger that may be posed to other persons if the detained person is released. In making the determination whether to release the detained person on his or her own recognizance, the court shall consider the potential danger to other persons, including threats that have been made by the detained person and any past acts of violence. The court shall also consider any evidence offered by the detained person regarding his or her ties to the community and his or her ability to post bond. (d) If the judge or magistrate sets the bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, the judge or magistrate shall state the reasons for that decision and shall address the issue of threats made against the victim or witness, if they were made, in the record. This statement shall be included in the record.")
See also California Penal Code 1319 PC -- Persons arrested for violent felony. ("(a) No person arrested for a violent felony , as described in subdivision (c) of Section 667.5, may be released on his or her own recognizance [in California] until a hearing is held in open court before the magistrate or judge, and until the prosecuting attorney is given notice and a reasonable opportunity to be heard on the matter. In all cases, these provisions shall be implemented in a manner consistent with the defendant's right to be taken before a magistrate or judge without unreasonable delay pursuant to Section 825.")
7California Penal Code 1319 PC -- Persons arrested for violent felony. ("(b) A defendant charged with a violent felony, as described in subdivision (c) of Section 667.5, shall not be released on his or her own recognizance where it appears, by clear and convincing evidence, that he or she previously has been charged with a felony offense and has willfully and without excuse from the court failed to appear in court as required while that charge was pending. In all other cases, in making the determination as to whether or not to grant release under this section, the court shall consider all of the following: (1) The existence of any outstanding felony warrants on the defendant. (2) Any other information presented in the report prepared pursuant to Section 1318.1. The fact that the court has not received the report required by Section 1318.1, at the time of the hearing to decide whether to release the defendant on his or her own recognizance, shall not preclude that release. (3) Any other information presented by the prosecuting attorney.")
9California Penal Code 1318 PC -- California O.R. release agreement. ("(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes.(2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate.")
See also In re York (1995) 9 Cal.4th 1133, 1143. ("Indeed, whether the defendant will subsequently appear is the sole issue at preconviction OR release hearings. [Citation.] Accordingly, the '... court's discretion to impose conditions upon [a preconviction] OR release is limited to conditions which are reasonably related to and attempt to insure subsequent court appearances.' (McIntosh v. Municipal Court (1981) 124 Cal.App.3d 1083, 1085 [177 Cal.Rptr. 683].)" ( People v. Barbarick, supra, 168 Cal.App.3d at p. 735; see also Van Atta v. Scott (1980) 27 Cal.3d 424, 438 [166 Cal.Rptr. 149, 613 P.2d 210]. FN7 ).[and at 1144]." Viewed and analyzed in the light of basic rules relating to the interpretation of statutes, we find that, although nothing in the legislative history specifically addresses the question whether the Legislature intended to permit OR releases to be conditioned upon a waiver of Fourth Amendment rights, it is clear the Legislature intended to codify the authority of a court or magistrate, in imposing [California] OR conditions, to weigh considerations relating to the public safety that extend beyond those intended to ensure subsequent court appearances.[and at 1145] "By enacting that bill, it therefore is clear the Legislature contemplated the authorization of conditions unrelated to ensuring an accused's future appearance in court, and intended to allow the court or magistrate broad discretion to impose reasonable conditions of OR release, including those related to the furtherance of public safety.")
10See In re York, above.
See also People v. Sylvestry (1980) 112 Cal.App.3d Supp. 1 (disagreed with on other grounds).
11California Penal Code 1318.1 PC -- Investigative staff; violent felony cases; reports; salaries. ("(a) A court, with the concurrence of the board of supervisors, may employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance. (b) Whenever a court has employed an investigative staff pursuant to subdivision (a), an investigative report shall be prepared in all cases involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, recommending whether the defendant should be released on his or her own recognizance. The report shall include all of the following: (1) Written verification of any outstanding warrants against the defendant. (2) Written verification of any prior incidents where the defendant has failed to make a court appearance. (3) Written verification of the criminal record of the defendant. (4) Written verification of the residence of the defendant during the past year. After the report is certified pursuant to this subdivision, it shall be submitted to the court for review, prior to a hearing held pursuant to Section 1319. (c) The salaries of the staff are a proper charge against the county.")
12Oakland criminal defense attorney Jim Hammer uses his inside knowledge as a former San Francisco Deputy District Attorney to defend clients throughout the Bay Area, including San Francisco, Berkeley, Marin County, and San Jose.
13California Penal Code 1318 PC -- O.R. release agreement.
14People v. Hernandez (2009) 177 Cal.App.4th 1182, 1187-1188. ("A defendant who seeks the privilege of an O.R. release must submit a signed release agreement that includes, among other things, certain express promises such as a promise to appear in court when required and a promise to abide by other reasonable conditions imposed by the court.FN2 ( � 1318.) BEFORE A DEFENDANT MAY be released from custody by the trial court on an O.R. release [in California], the requirements of section 1318 must be met. ( � 1318, subd. (a).) If a defendant is released without a signed release agreement that complies with section 1318, the defendant cannot be separately punished under section 1320 for his subsequent failure to appear. ( People v. Mohammed (2008) 162 Cal.App.4th 920, 927-931, 76 Cal.Rptr.3d 372 ( Mohammed ); People v. Jenkins (1983) 146 Cal.App.3d 22, 27, 193 Cal.Rptr. 854 ( Jenkins ) [the defendant's release by the superior court pursuant to an agreement that did not comply with section 1318 "was not on his own recognizance within the contemplation of section 1320, subdivision (b)"].) FN2. Section 1318 provides as follows: "(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement [italics added]which includes.")
15California Penal Code 978.5 PC -- Bench warrant of arrest. ("(a) A bench warrant of arrest may be issued whenever a defendant fails to appear in court as required by law including, but not limited to, the following situations:.(3) If the defendant is released from custody on his own recognizance and promises to personally appear in court at a specific time and place.")
16California Penal Code 1320 PC -- Failure to appear after release upon own recognizance; violation; presumption; penalty. ("(a) Every person who is charged with or convicted of the commission of a misdemeanor who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a misdemeanor. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court. (b) Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony, and upon conviction shall be punished by a fine not exceeding five thousand dollars ($5,000) or by imprisonment in the state prison, or in the county jail for not more than one year, or by both that fine and imprisonment. It shall be presumed that a defendant who willfully fails to appear within 14 days of the date assigned for his or her appearance intended to evade the process of the court.")
See also California Penal Code 672 PC -- Fines where none prescribed. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
17See California Penal Code 1320 PC, above.