Bail is that part of our legal system that allows an accused person to be temporarily released from custody so they can continue their lives while they prepare for their day in court. In criminal cases, it is a sum of money, real property or surety bond that needs to be posted by or on behalf of a defendant to guarantee their appearance in court. The right to reasonable Bail is guaranteed to you in the Eighth Amendment of the Constitution of the United States.
The court system will set the amount of bail required for the defendant’s release. Under state law, a surety company can provide a type of insurance policy or “bond” that guarantees payment of the full bail amount to the court if the defendant does not show up for all scheduled appearances. These bonds are offered by licensed bail bond agencies.
For supplying these bonds, bail agencies charge a premium—a percentage of the total bond amount, typically 10%. By way of example, for a bond amount set at $50,000, the premium would be about $5,000 plus any additional fees required by the state. The bail agency must charge the premium rate it has filed with the New Mexico Department of Insurance and the premium is not refundable once the defendant is released.
A bail bond is a financial guarantee made by or on behalf of a criminal defendant that is used to guarantee their appearance in court through the end of their trial upon release from custody. Failure by the defendant to appear will result in bond forfeiture.
The bond amount is the full amount of the bail that was set by the court. The premium is the dollar amount owed to the bail agency for posting the bond. Usually this premium is 10% of the bond amount. For example, if the bond amount is $50,000, the premium owed would be $5,000.
An indemnitor/guarantor is the person(s) willing to be responsible for the defendant while they are out on bail and co-assumes financial liability to guarantee the full bond amount.
A bail bond is exonerated when the legal process/trial has finished. It does not matter whether the defendant is found guilty or innocent or the case dismissed. At this point, the liability for the bond amount is discharged, however any unpaid premium, fees or charges incurred by the bail agency on your behalf are still owed to that agency.
Bail bond forfeiture results when a court appearance is missed. If a defendant misses a court date, a bench warrant is issued for their arrest. The court also sets a deadline for when either the defendant must be located/returned to custody or the bail bond “reinstated” or the bail amount must be paid to the court.
A summary judgment is issued by the court following bond forfeiture. This is a judgment against the surety for payment of the bond amount. The summary judgment is issued because the deadline for reinstating the bond or returning the defendant to custody has passed.
This is a process by which a defendant who has experienced bail bond forfeiture can have their bench warrant removed and the bail bond re-activated or “reinstated” with the court. This is a legal proceeding that usually requires action by an attorney and could result in fees being paid by the bail bond agency. These fees are, in turn, passed along to the defendant/indemnitors. Due to the time it takes for the courts to process these fees, the billing for this process can take several months to complete.
The amount of the bail is first and foremost within the scope and discretion of the judge or magistrate, with only two general limitations:
- The purpose of bail is not to penalize or punish the defendant, but only to secure the appearance of the accused, and it should be set with that in mind.
- Excessive bail, not warranted by the circumstances or the evidence at hand, is not only improper but a violation of constitutional rights. In fixing the amount of the bail, the court takes into consideration the seriousness of the charge, the defendant’s previous criminal record and the probability of the defendant appearing at the trial or hearing.
Additionally, if public safety is an issue, the court may make an inquiry where it may consider allegations of injury to the victim, danger to the public and/or to the defendant, threats to the victim or a witness, the use of a deadly weapon and the defendant’s use or possession of controlled substances.
A judge or magistrate setting bail in other than a scheduled or usual amount must state on the record the reasons and address the issue of threats made against a victim or a witness. The court must also consider evidence offered by the detained person regarding ties to the community and ability to post bond. The bail amount set by the court must be within the minimum range amount of bail that would reasonably assure the defendant’s appearance—NOT the maximum!
If you posted the full bail amount with the court yourself, this money will be released to you at the conclusion of the court process, provided the defendant appeared at all required court dates.
If you elected to use a bail agency to post your bond, the agency is initially responsible to the court for the bond amount. The defendant and indemnitors are responsible to the bail agency for the premium and any fees or additional expenses incurred by the agency on their behalf. These monies are earned at the time the defendant is released from custody and therefore not subject to return. This is the case even if the defendant is found innocent, the case is dismissed or the defendant is placed back into custody for another offense.
This is a question best answered by a licensed bail agent. Please contact Gerald Madrid Bail Bonds Agency at (505) 369-2069.
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