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Bail, Bond, and Pretrial Release

When a person is arrested, the court system must decide what to do with them pre-trial.  The starting point for that analysis is OCGA 17-6-12.  There are three options:  release without a bond, release with a bond, or denial of release.

Release Without a Bond

Release without a bond is described in the statute as "unsecured judicial release."  It is very uncommon for it to be referred to in that fashion by lawyers or jailers.  For us, it is "OR," short for "own recognizance."  The person signs an agreement that they will show up in court when noticed to do so.  Failure to do so can lead to the termination of the unsecured judicial release.

Unsecured judicial release is available under the statute for offenses which are not bail restricted.

Bail restricted offenses fall into three categories:  serious violent felonies, certain listed felonies, and two listed misdemeanors.

  1. Serious Violent Felonies
    1. Murder or felony murder, as defined in Code Section 16-5-1;
    2. Armed robbery, as defined in Code Section 16-8-41;
    3. Kidnapping, as defined in Code Section 16-5-40;
    4. Rape, as defined in Code Section 16-6-1;
    5. Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
    6. Aggravated sodomy, as defined in Code Section 16-6-2; or
    7. Aggravated sexual battery, as defined in Code Section 16-6-22.2;
  2. Listed Felonies
    1. Aggravated assault;
    2. Aggravated battery;
    3. Hijacking a motor vehicle in the first degree;
    4. Aggravated stalking;
    5. Child molestation;
    6. Enticing a child for indecent purposes;
    7. Pimping;
    8. Robbery;
    9. Burglary;
    10. Bail jumping;
    11. Escape;
    12. Possession of a firearm or knife during the commission of or attempt to commit certain crimes;
    13. Possession of firearms by convicted felons and first offender probationers;
    14. Trafficking in cocaine, illegal drugs, marijuana, or methamphetamine;
    15. Participating in criminal street gang activity;
    16. Habitual violator;
    17. Driving under the influence of alcohol, drugs, or other intoxicating substances;
    18. Entering an automobile or other mobile vehicle with intent to commit theft or felony, as defined in Code Section 16-8-18; or
    19. Stalking; 
  3. Listed Misdemeanors
    1. Crimes involving family violence as defined in OCGA 19-13-1; or
    2. Stalking

The judge conducting the release analysis is allowed to but not required to allow unsecured judicial release for any case that does not involve a bail restricted offense.

Such unsecured judicial release may be:

  1. on the person's own recognizance or
  2. for the purpose of entering a pretrial release or diversion program  (T. 15, Ch. 18, Art. 4 OCGA or Uniform Superior Court Rule 27)

The difference would be if the person did not follow through on entering and participating in a designated program, it could lead to termination of the unsecured judicial release.  A release on the person's recognizance would not be terminated unless the person violated the general conditions of release or designated special conditions.

It bears repeating that a judge is not required to allow unsecured judicial release.

Release on Bail or Bond

Sometimes, the terms bail and bond are used interchangeably, but they actually refer to different methods of securing a release from jail.

Bail is money paid to a court to obtain release following an arrest.  It is posted as a guarantee that the accused will appear at subsequent court hearings.  A failure to appear can result in the forfeiture of the bail.  In that situation, the money then belongs to the government, and the person can be re-arrested on the offense.  Upon re-arrest, if they are allowed bail or bond, they will have to put up new collateral to secure a release from jail.  Upon the conclusion of the criminal case, the bail money may be released back to the person posting it.  In some cases, the person posting the cash bail (referred to as the surety) can agree for the bail money or a portion of it to be applied against fines and fees of the arrestee.

Bond is a contract between the arrestee (principal), someone who promises the payment of money (surety) and the government that the surety will pay a certain amount in the event that the arrestee does not appear in court as directed.  In Georgia, the bond contract must be approved by the head law enforcement authority for the jurisdiction.  In a county, that would be the Sheriff.  For a municipal arrest where the person does not go through the county jail, this would be the chief of police. 

There are different types of bonds which can be approved.

First, there are professional bonding company.  In Georgia, the Sheriff has to approve any professional bonding company who wants to write bonds in his or her jurisdiction.  The company will have a limit on the dollar amount of bonds that they can have outstanding.  The bonding company charges a percentage of the total bond as its fee for posting bond.  That money is not refundable.  In some cases, the bonding company may require, in addition, the posting of cash collateral.  This may happen in cases involving out-of-state defendants or cases where there is a high degree of concern that the person will not appear as directed and the company will have to locate and arrest the subject.  The bonding company's fee has a maximum set by state law.  If the person does not appear, then the bonding company may be required to pay the entire amount of the bond into the court. 

Second, there are property bonds.  If there is someone who owns real property in the state of Georgia which has equity equal to or greater than the bond amount, they may be approved to post an appearance bond for the arrested person.  They still promise to pay the full amount of the bond if the person does not appear as directed.  

In the event of a non-appearance by a defendant, the court generally does not immediately forfeit the bail or bond.  It instead initiates the process of bond forfeiture.  This is a very strict process requiring a series of notices to the defendant and the bondsperson and giving an opportunity for the defendant to come back into court.  Even when a bond is finally forfeited, there is an opportunity for the bonding company to bring the defendant back into custody and secure a refund of the paid bond.  

In many traffic cases, a non-appearance for the traffic court will cause the forfeiture of a posted cash bail which works as a guilty plea to the traffic offense and application of the cash posted to the fine for the offense.  In that situation, a bench warrant will not be issued for the person, because the payment of the fine is viewed as completing the traffic case and the person's responsibilities.

In many traffic cases involving Georgia licensed drivers, the driver can display his or her license instead of posting bail or bond.  In that situation, they may be allowed an opportunity to post cash bail prior to court to avoid their having to appear in court.

Some more serious traffic cases and traffic cases involving under 21 year old drivers will likely require appearance in court by the driver even if cash bail or bond is posted and pre-payment of the fine amounts will not avoid that requirement.  In the case of more serious charges, this may be because the court may require jail time, probation or other conditions in addition to a fine if the person pleads or is found guilty of the offense.  In the case of young drivers, it is likely because the offense could cause a suspension of the driver's license.  As well, sometimes the court will require the completion of an intervention program for younger drivers.

Denial of Bond

The full range of cases and circumstances where release might be denied completely is beyond the scope of this article.  Suffice it to say, it will only be appropriate for very serious charges and where the circumstances or history indicates that the person is very unlikely to abide by the conditions and requirements of bond.

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