There are four possible consequences if you commit a misdemeanor offense while out on bail. These include:
- the setting of a second bail, possibly at an increased rate,
- bail revocation with a remand into custody,
- bail forfeiture, and
- the possible loss of a plea bargain.
Examples of common misdemeanor crimes include:
- driving under the influence (DUI),
- possession of a controlled substance,
- domestic violence,
- petty theft, and
- embezzlement.
Note that if you are arrested for a misdemeanor while out on bail, the new arrest may trigger a new case and a new bail process with the court, including another bail hearing. The authorities can hold you in jail until the judge determines a new bail amount and you post it.
In general, bail refers to the money that you must post with the court in order to be released from jail following an arrest. The money is a way of ensuring the court that you will attend your future court appearances.
In some cases, the judge may release you on your “own recognizance” (commonly referred to as an O.R. release). If the judge releases you “O.R.,” you do not post bail but simply promise to attend your future court appearances.
1. Can a new misdemeanor offense when I am out on bail result in an increase in bail?
It could. As stated above, the commission of a misdemeanor (as opposed to an infraction or a felony offense) while out on bail will result in a new bail hearing.
During the hearing, a judge determines the appropriate amount of bail that you must post. Most states say that a judge can take the following factors into account when setting bail:
- your criminal history or criminal record,
- the seriousness of the offense committed, and
- the protection of the public.1
A new arrest might signal that you have a tendency to commit criminal acts and pose a threat to public safety. New criminal charges may also show that you are a flight risk. Both of these may lead a judge to set bail at a higher amount than the judge normally would have.
Once bail is set, you have to post the new bail amount to get released from jail. Your original bail is not used as a credit in any way with regard to the new amount.
2. What about bail revocation and bail forfeiture?
Sometimes a judge may impose certain conditions that you must adhere to when you post bail. For example, a judge may condition your bail on you not committing a crime while out on bail.
If the new criminal offense violates a condition of your original bail, the judge has the authority to revoke bail. Bail revocation will generally result in you being taken into custody.2
If bail is revoked, then the full amount of bail that you posted is due to the court.
If you used a bail bondsman or bail bonds company to get out of jail and post bail, then the court keeps the bond money forever. This is called bail forfeiture or bond forfeiture.3
In the case of bail forfeiture, the bondsman’s insurance company pays the bail amount to the court. You, then, must turn over any collateral to the bond company that you used to secure the bond.
3. Can a new misdemeanor threaten a plea bargain?
It can. A set of new criminal charges may result in the prosecutor pushing for a trial in the original criminal case in lieu of allowing for a plea bargain.
4. What if I commit a felony while on bail?
A consequence not mentioned above is that a sentencing enhancement may apply if you commit a serious felony while out on bail for other felony charges. This is sometimes referred to as a “crime bail crime enhancement.”
Courts often impose an extra two years in state prison if you get convicted of both felonies (that is, the new felony and the underlying felony).4
5. What exactly is bail?
“Bail” refers to the money that you must post with the court in order to get released from jail. The money serves as a way of ensuring the court that you will attend all future court appearances.
The amount of bail will vary depending on the crime involved and a county’s bail schedules.
Bail is often determined at a bail hearing or at your arraignment (which is usually the first court date/court hearing in a criminal proceeding).
After judges set bail, you can either post cash bail, or post bail via a bail bondsman.
6. How is OR release different from posting bail?
“OR release” is when the judge releases you from jail without you having to put up any bail. You get released on your own recognizance with the promise that you will show up to future court appearances.
You will often receive OR release if you:
- are facing minor charges,
- are not flight risks,
- pose no danger or threat to the community, and
- have no criminal history.
For more discussion, see our page on How to Get Out of a Misdemeanor.
Additional reading
For more in-depth information, refer to these scholarly articles:
- Criminal Law: Punishment: Misdemeanors: Statutory Construction – California Law Review.
- Three Strikes and You’re in (For Life): An Analysis of the California Three Strikes Law as Applied to Convictions for Misdemeanor Conduct – Thomas Jefferson Law Review.
- SB 10: Punishment before Conviction: Alleviating Economic Injustice in California with Bail Reform – University of the Pacific Law Review.
- Assessing the Impact of Bail on California’s Jail Population – Public Policy Institute of California.
- Racial Bias in Bail Decisions – The Quarterly Journal of Economics.
Legal References:
- See for example, Colorado Revised Statutes 16-4-103(5).
- See, for example, Florida Statutes 903.0471 (2021).
- See, for example, Nev. Rev. Statute 178.484. See also State v. Stu’s Bail Bonds, 991 P.2d 469 (1999).
- See, for example, California Penal Code Section 12022.1 PC.