The last place anyone wants to find themselves is locked up. But if it happens, the first thing you want to do is get out. But how? If you are arrested for a felony or misdemeanor in Georgia, you are entitled a bond hearing to determine if bond will be set. O.C.G.A. § 17-6-1. Oftentimes, the accused will be given a pre-set bond after the arrest and booking procedures are complete. A pre-set bond typically happens in cases where the arrest is for a non-violent misdemeanor such as a DUI or other less serious offenses.
However, if a pre-set bond is not available, the accused must be taken before a judge within 72 hours (with an arrest warrant) or 48 hours (without an arrest warrant) to determine bond. OCGA § 17-4-26. When a bond is set, the defendant puts up a specific amount of money, or property, as a guarantee that the defendant will show up to a predetermined court date. If the defendant shows up to the court on the specified day the money will be returned to the defendant. If the defendant does not show up to court, the money will be forfeited.
What types of bonds are available?
- Recognizance Release/ Signature Bond
This type of bail bond requires no money to be paid, just a promise on your part that you will appear before a judge on the given date. Once you sign the paperwork, you will then be released from custody. Although no money is charged for release, there is a fine for not appearing in court.
- Cash Bond
You may post the full amount of the bond in cash. Once the case has been completed, as long as you have appeared in court as directed, your money will be returned to you.
- Property Bond
In lieu of cash, you may put up your property for your bond. To do so, you will need to contact the sheriff of the county in which the property lies for the required paperwork and approval. Generally, the sheriff will require that the equity in the property must be two to three times the amount of the bond. During the pendency of your case, your property will have a lien on it. Once your case has been completed, as long as you have appeared in court as directed, your property will be released free and clear.
- Bonding Company
If you were not given a signature bond and cannot afford to post a cash or property bond, you may choose to use a bonding company to post your bond. Typically, a defendant is required to pay 10% of the bail amount in cash. Next, a bail bondsman pays the court part of the total bail. And if that defendant tries to flee or doesn’t show up as promised, the bondsman will pay the rest of the bond and may go after the defendant for the loan. The fee you pay to the bonding company will not be returned to you once your case is over.
O.C.G.A. § 17-6-1 – § 17-6-18; § 17-6-30 – § 17-6-31; § 17-6-50 – § 17-6-58; § 17-6-90 – § 17-6-92; § 17-6-110 – § 17-6-114; and § 15-16-27.
Who determines bond?
The purpose of a bond is to prevent punishment before a conviction and to secure the appearance of the person in court for trial. Roberts v. State, 32 Ga.App. 339, 340-41, 123 S.E. 151 (1924). In Georgia, the judge has the discretion to determine if a defendant will be released on bond. Although the judge determines whether a defendant will be released on bond, the judge must explain its reasons for denying a bond for appeal purposes. Lane v. State, 247 Ga. at 389, 276 S.E.2d 644. The granting or denial of bail will not be set aside unless there is an abuse of discretion. Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).
The judge also determines the amount of the bond as well. When fixing amount of bail, trial judge is to mainly consider the probability that accused, if freed, will appear at trial. Other factors the judge is to consider include accused’s ability to pay, seriousness of the offense, and accused’s character and reputation. O.C.G.A. §?17-6-1. See also Spence v. State, 1984, 252 Ga. 338, 313 S.E.2d 475. It may seem as if the trial judge discretion is limitless, however, the United States Constitution and the Georgia Constitution has limited that discretion by requiring that bail shall not be excessive. Jones v. Grimes, 219 Ga. 585, 586, 134 S.E.2d 790, 791 (1964).
What are the bond factors?
The defendant has the burden of coming forward with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of proof means that a person charged with the crime must present evidence at the bond hearing on factors that indicate roots in the community. Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993).
The trial court may release a person on bail if the court finds the defendant has satisfied a showing of these factors:
(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(3) Poses no significant risk of committing any felony pending trial; and
(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice. O.C.G.A. § 17-6-1(e).
Can the judge impose bond conditions?
In addition to determining whether the defendant will receive a bond, the judge also has the ability to add bond conditions. Bond conditions are normally designed to ensure the defendant comes to court, and to ensure protection of the community. Judges have wide discretion in deciding what conditions are reasonably necessary to accomplish these purposes. The bond conditions that a judge imposes will ordinarily depend on the facts of the case. But some of the more common conditions require defendants to:
- refrain from drug and alcohol use and/or participate in testing
- not possess any weapons
- stay away from certain places/people
- maintain/seek employment
- follow a curfew,
- comply with specific travel restrictions,
- and, comply with certain crime related courses.
For instance, if a defendant was arrested for drug related activity and has a history of getting into drug-related trouble, a judge might condition release on participating in drug monitoring. O.C.G.A. § 17-6-1.
What to do if you are denied a bond or your bond is too high?
If the judge denies bond for any reason at this first appearance hearing, it’s not over. If you are denied bond, a preliminary hearing is typically scheduled within 15-30 days. At this hearing evidence is presented to the judge to determine if probable cause exists for the case to move forward to prosecution. The issue of bond can be revisited at this preliminary hearing. If bond is denied, you may have the option to appeal if it can be shown that the court abused his discretion. Luke v. State, 282 Ga. App. 749, 639 S.E.2d 645 (2006). Additionally, if your bond is too high, or conditions are too extraneous you could ask the judge for a bond modification. O.C.G.A § 17-10-1.
What if you’re in jail but your case is not indicted?
A criminal defendant in Georgia who remains in jail following his/her arrest is entitled to have his/her case presented to a grand jury within 90 days. However, with a very limited exception, if the defendant’s case is not presented to the grand jury within 90 days, the defendant has a right to a bond. O.C.G.A. § 17-7-50.