One of the first issues that will arise after arrest and criminal charges  is bail.  Bail is set at the first appearance.   The criminal defense attorney will  argue for a low bail or no bail at all (release on recognizance).   The state, typically through probation services, may argue for higher bail depending on the charges.  Bail, if allowed by the court, allows the defendant to remain in the community while the criminal charges are pending through trial or other disposition.

Bail Under the 8th Amendment

Bail is a very important right for criminal defendants.  It is so important that it was one of the first rights given to citizens by the founding fathers through the 8th Amendment to the Constitution which reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Despite the strictures of the 8th Amendment, there is a great deal of latitude in the court in setting bail.  However, with few exceptions, due to the 8th Amendment and the case-law over the years, few courts will flirt with violation of the 8th Amendment.  Instead, the bail is typically set in accordance with the seriousness of the offense.

Factors for determining bail

The court will also look at the circumstances of the defendant related to his or her flight risk.  Flight risk relates to the likelihood that the defendant will show up for future hearings.  In evaluating a defendant’s flight risk, the court will look at the defendant’s ties to the community such as family, employment, length of residence, residential history and so on.

Most importantly, the court will look at the defendant’s history of attendance and /or failures to appear in court.  Past failures will probably result in much higher bail.  In addition, past failure may result in a “cash only” bail.

Bail Bondsman

Bail is typically set as cash or surety in the absence of flight risks.  A surety bail allows the defendant to post bail through a bonding agent (bail bondsman).  Bail bondsman rates can be as high as 10% of the total bond/bail advanced by the bondsman.   Bail bondsman can be very helpful for defendants and their families, and often are the first to make contact with the family and the defendant.

In many cases where an individual is arrested over the weekend, a bondsman may be the only available assistance since they are typically open 24/7.   We typically use Pat Madrid at Gerald Madrid Bail Bonds (505.243.0249) due to her quick response time to our client‘s needs.

After bail has been posted

Once out on bail, there are numerous conditions of release set by the court in almost all cases.  The conditions will vary according to the nature and seriousness of the crime.  Violation of the conditions of release are very serious and,  often result in bench warrants and subsequent arrest of the defendant.

In some cases, the court may then hold the defendant through trial or other disposition.  Perhaps the most serious violation, and certainly the easiest to detect is failure to appear at court hearings.  A failure to appear will result in an immediate bench warrant.  In addition, such failure is unlikely to ingratiate a defendant with his or her bail bondsman.

Bail May be Reviewed

Bail may be reviewed upon the motion of your attorney.  This would include both the situation where the bond was denied and the situation where bond had been set unreasonably high.  Under the 8th Amendment, you have a right to fair bail.  it is important to exercise this right.

An experienced New Mexico criminal law attorney can help in the setting of bail at the First Appearance and in reviewing bail later in the process.  In addition, an experienced criminal defense attorney may be able to take advantages of opportunities for an effective defense even at this early stage of the case.

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