In Arizona, the bail bond hearing, also known as a release hearing, is the court appearance where a defendant can ask the court to reduce bail or other terms of pre-trial release that were imposed during the defendant’s arraignment. The court will weigh several factors in reconsidering the release conditions.
1. What is a release hearing?
The release hearing is the court appearance where the defendant can challenge the terms of his or her pre-trial release, including bail, that were set at the initial appearance, which can also be the arraignment in Arizona.
At the release hearing, the defendant has a right to a lawyer.[1] The criminal defense attorney will present evidence that shows that the conditions of pre-trial release that were set during the arraignment were too harsh. The prosecutor will often counter with evidence showing that the terms of release are too lenient or were properly set.
This evidence can include:
- witness statements,
- witness testimony,
- victim statements,
- the defendant’s criminal history, and
- the defendant’s testimony.
A release hearing can be requested by the prosecutor or by the criminal defense lawyer. The court can also set a release hearing if the case has been transferred to a different court.[2]
In authorizing pre-trial release, the court has to:
- issue a court order detailing the terms and conditions of the release,
- inform the defendant of the penalties of violating these terms, and
- tell the defendant that a violation can lead to an arrest warrant being issued, a criminal charge for failure to appear, and a forfeiture of any bail that has been posted.[3]
The outcome of the release hearing is critical for the defendant. The hearing will set the rules that the defendant has to follow while their case is pending, as well as the bail bond amount. This can determine whether the defendant will await trial in jail.
2. How does this fit into the criminal justice process?
The release hearing happens early in a criminal case. In Arizona, it can follow the arraignment.
Within 24 hours of being arrested, the defendant is entitled to an initial appearance. There, the judge informs the defendant of the charges against them. The judge will also decide how to keep the victim and public safe and to make sure that the defendant will appear in court for their subsequent appearances and their trial. The judge will release the defendant on a list of conditions or rules. These are the conditions of pre-trial release.
Those conditions can be challenged by the defendant or the prosecutor at any time before trial. Challenging the terms of pre-trial release begins with a motion for a release hearing. The hearing will be scheduled and the judge will consider whether to change the conditions of release.
3. What are some common types of pre-trial release in Arizona?
There are 4 types of pre-trial release in Arizona:
- own recognizance,
- bail bond,
- third party release, and
- pretrial services release.
Defendants released on own recognizance are allowed to await trial out of jail with nothing more than a written promise saying that they will appear at all of their upcoming court dates. It is commonly referred to as “OR release,” and is the most lenient form of pre-trial release in the state. When a defendant is on OR release, there is rarely a subsequent sentencing hearing because there are no improvements that can be made to the terms of the defendant’s release.
Defendants can also be released on bail. Bail is a sum of money set by the court to be paid in exchange for the defendant’s pre-trial release. The bail bond can be:
- secured by collateral,
- unsecured,
- in cash, or
- a deposit bond.[4]
The defendant can be released from jail before their trial by paying or posting bail. This often requires help from a bail bond company. The money will be returned if the defendant does not miss an appearance throughout the court case. If the defendant is absent at any one, though, the court will schedule a bail bond forfeiture hearing to decide whether to keep the money and reconsider the terms of release. This incentivizes the defendant’s compliance with the terms of their release and ensures that they will appear in court, later on.
In a third-party release, the judge releases the defendant pending trial into someone else’s care. That person promises to bring the defendant to their required court appearances. If the defendant is absent, the third party is held directly responsible. This type of release is especially common for juvenile or young offenders, who are released into the care of their parents.
Defendants on pre-trial services release are monitored by the court’s pretrial services unit. The terms of release are similar to probation. The defendant may have to:
- regularly report to a probation officer, and
- consent to unannounced drug tests.
In Arizona, the preference for pre-trial release is OR release. If that is not sufficient to ensure that the defendant will show up at future court dates or to protect the victim of the alleged offense, the court is supposed to impose the least onerous conditions of release as possible.[5]
4. What are some common terms of pre-trial release?
The judge can also impose restrictions on the defendant for their pre-trial release, if those restrictions would reasonably:
- ensure the defendant’s future appearance in court,
- protect the victim from harm, harassment, abuse, or intimidation, and
- protect the community from harm by the defendant.[6]
Some of these potential restrictions include:
- putting the defendant in the custody of a person or organization for supervision,
- restrictions on the defendant’s travel, associations, or residence,
- prohibiting the defendant from possessing a dangerous or deadly weapon,
- prohibiting the defendant from drinking alcohol, doing drugs, or engaging in other behaviors,
- requiring the defendant to report to a probation officer, and
- taking the defendant back into custody after hours.[7]
If the criminal charge is a felony, the court is required to:
- make the defendant wear an ankle monitor, and
- forbid the defendant from having any contact with the victim.[8]
5. How does the court decide which type of release to impose?
In determining the type of pre-trial release or the amount of bail, the court will consider:
- statements by the victim,
- the severity and circumstances of the criminal charges,
- whether the defendant has a prior arrest or a conviction for a serious offense or a violent or aggravated felony on their criminal record,
- any evidence that suggests that the defendant is a danger to others in the community,
- a risk or lethality assessment, if the charges are for domestic violence,
- the weight of the evidence against the defendant in the criminal case,
- the defendant’s ties to the community and family,
- the defendant’s mental condition and character,
- the defendant’s employment and financial resources,
- drug test results and whether the defendant is using any illegal drugs,
- whether the charges involve methamphetamine,
- how long the defendant has lived in the community,
- the defendant’s criminal background,
- whether the defendant has ever failed to appear at a court proceeding or has a history of being a flight risk,
- whether the defendant illegally entered or remained in the U.S., and
- the state where the defendant lives.[9]
However, the court will not issue bail if there is strong evidence that the defendant is guilty of:
- a capital offense,
- sexual assault,
- sexual conduct with a minor under 13 years of age, or with a minor under 15 and at least 10 years younger than the defendant,
- molestation of a child under 13, or involving a child under 15 who was at least 10 years younger than the defendant, or
- any felony offense, if there is clear and convincing evidence that the defendant is a substantial danger to others, and there are no set of pre-trial release conditions that would reasonably assure the safety of the public.[10]
These are non-bailable offenses. Until 2014, suspected illegal immigrants accused of a serious felony were ineligible for release on bail. A federal appeals court decided that this was a violation of their Due Process rights.[11]
6. Does it matter if I am in Phoenix or Maricopa County?
It can. Defendants facing charges in large counties or cities like Tucson, Mesa, Scottsdale, Phoenix, Flagstaff, or Pima are more likely to be released to a pre-trial service agency than defendants in more remote regions. Populated areas tend to have larger pre-trial service agencies.
7. How do bail bonds work in Arizona?
A bail bond is a payment made by a bail bondsman on the defendant’s behalf in exchange for a defendant’s release from jail until their trial.
Because most defendants are not able to afford to post bail, they often have to turn to an agent at an Arizona bail bond company. These companies are overseen and regulated by the Arizona Department of Insurance. They usually charge a nonrefundable fee of 10 percent of the bail amount in order to post an appearance bond and handle the rest of the bail process. Because the defendant is usually in jail at this point in the process, it often falls to a family member or loved one to contact a bail bond company.
If the defendant complies with their appearance requirements, the bond company will recoup their bond money. The defendant will not recover the 10 percent fee that they paid to the bond company, though.
If the defendant fails to appear at a hearing in superior court, the bail bond agent may turn to a bounty hunter to bring the defendant to court and protect the company’s money.
[1] ARS 13-3961(E).
[2] Arizona Rules of Criminal Procedure 7.4(c)(1).
[3] ARS 13-3967(F).
[4] Arizona Rules of Criminal Procedure 7.3(c)(2)(C).
[5] Arizona Rules of Criminal Procedure 7.2(a)(2).
[6] Arizona Rules of Criminal Procedure 7.3(c).
[7] ARS 13-3967(D) and Arizona Rules of Criminal Procedure 7.3(c)(1).
[8] ARS 13-3967(E).
[9] ARS 13-3967(B).
[10] ARS 13-3961(A) and 13-3961(D).
[11] Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014).