Category Archives: Law

Rules and regulations by which a society operates

The Public Safety Factor in Setting Bail

Jeff Downer  There exists a persistently held belief that a court may weigh only factors that relate to the defendant’s likelihood in showing up in court when determining bail.  While at one point in time that may have been true, such is not the case now.

What is different today?  Public safety concerns can also be considered.   The overwhelming majority of courts can and are considering potential threats to the public as well as a specific individual’s well being as part of the bail setting equation.

The scope of using public safety factors in setting bail is vast.   Courts in 46 states currently include public safety as a factor in setting bail.  Furthermore, the courts of 27 states and the Federal Court System may go as far as authorizing preventive detention and deny release on bail entirely.

Like most anything else the landscape of how bail and bonds are set has been changing.  The use of public safety factors in setting bail is part of the new view.

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Indiana Supreme Court Ruling Shifts Burden Of Proof for Bail in Murder Cases

Jeff Downer  In the past defendants charged with murder (or treason) in the State of Indiana would have to present a compelling argument that the proof of their guilt was not strong in order to be admitted to bail.

Recently (June of 2013) the Indiana Supreme Court rearranged the playing field when it came to how it is determined whether defendants charged with murder or treason can be held without bail.  The new case law is that the burden of proof now falls on the state to prove that the defendant should not be admitted to bail:

We hold today that when a defendant charged with murder or treason seeks bail, the burden is on the State, if it seeks to deny bail, to show—by a preponderance of the evidence—that the proof is evident or the presumption strong.

As a practical matter I do not believe much has changed on whether those charged with murder will be held without bond.  Prosecutors rarely pursue murder cases with a poor chance of conviction (nor should they).  The threshold of evidence to be held without bail has not changed.  In fact as part of the ruling the court upheld the original finding that the defendant should be held without bail.

The burden has just been shifted from defendant proving the state has a poor case to the state proving they have a solid one.  The most visible impact I suspect will be more bail hearings on murder cases as prosecutors seek denial of bail.

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Posted in Bail, Bail Bonds, Indiana, Law. Tagged with .

Do Failure to Appear Warrants Expire?

Jeff Downer  A question often arises as to whether warrants issued for failure to appear in court will expire after a certain period of time.  The answer is no.

A wishful thinking defendant may hope that by failing to appear and remaining in a fugitive status for a long enough period of time will create some type of statute of limitations scenario where their case will magically disappear, and they will become immune from further prosecution on the matter.

Indiana failure to appear law is quite clear on this subject.  Any warrant issued for failing to appear in court (whether the case be a misdemeanor or a felony) does not come with an expiration date.  The warrant will remain in effect until the defendant is returned to face the court.

IC 35-33-2-4 Expiration; reissuance      Sec. 4. A warrant of arrest for a misdemeanor expires one hundred eighty (180) days after it is issued. A warrant of arrest for a felony and a rearrest warrant for any offense do not expire. A sheriff who has an expired warrant shall make a return on the warrant stating that it has expired and shall return it to the clerk of the court that issued it. The clerk shall enter the fact that the warrant has expired in his records and shall notify the prosecuting attorney of the county that the warrant has expired. Upon request of the prosecuting attorney, the court shall issue another warrant.

Failing to appear on a criminal case may buy some time on the run living as a fugitive, but it will not purchase a resolution to the case.

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Is Failure to Appear a Crime?

Jeff Downer  Is a defendant’s failure to appear on a criminal case considered a separate criminal offense in it’s own right?  In most states and jurisdictions the answer is yes.

What this means is that not only will a failure to appear warrant be issued for current case, an entirely new criminal charge of failure to appear can be pursued against the defendant.  Commonly, the seriousness of the new failure to appear charge will depend upon the charge levels in the originating case.

In Indiana, this is how the failure to appear charge levels are determined:

  •  If the the original case consisted of misdemeanor charges then the failure to appear would be charged  as a Class A misdemeanor.
  • If the the original charges were felonies then the new failure to appear charge would be pursued as a Class D felony.

The key takeaway here is that failing to appear not only risks incurring the ill will of the court but also running the risk facing even more criminal charges.

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Bail Bond Exoneration

Jeff Downer  When a court finds that the obligations of a bail bond are discharged and liability on the bond is released, it is called exoneration.  Simply speaking, exoneration means the bail bond is no longer in effect.

In the vast majority of cases, exoneration occurs when the case is disposed of by the court.  Case dispositions take the following forms:

  • Sentencing
  • Finding of not guilty
  • Enrollment into a diversion program
  • Dismissal of all charges

There may instances of a bail bond being exonerated prior to disposition because the defendant has become a flight risk or violated conditions of release.  Per Indiana Code here are the steps a bail bondsman must take to return a defendant to custody and request the court for exoneration:

IC 27-10-2-6
Surrender of defendants; detention; exoneration of sureties
Sec. 6. (a) The person desiring to make a surrender of the defendant shall be provided a certified copy of the undertakings and a certified copy of the arrest warrant forthwith by the clerk of the court having jurisdiction and shall deliver them together with the defendant to the official in whose custody the defendant was at the time bail was taken or to the official into whose custody the defendant would have been given if committed, who shall detain the defendant in the official’s custody thereon, as upon a commitment, and shall acknowledge the surrender in a written certificate.
(b) The court having jurisdiction of the offense shall order that a surety be exonerated from liability for an undertaking and that any money or bonds deposited as bail be refunded when the person surrendering the defendant has:
(1) presented to the court both of the documents described in subsection (a); and
(2) given to the prosecuting attorney:
(A) three (3) days notice; and
(B) copies of both of the documents described in subsection (a).
As added by P.L.261-1985, SEC.1. Amended by P.L.348-1995, SEC.2.

Bear in mind that exoneration is not the same thing as a bail bond expiring after certain period of time.  In situations where cases are slow moving, a bond set to expire can be renewed and the defendant allowed to remain free.  Find here an explanation of bail bond expiration.

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How Long Is a Surety Bail Bond Valid?

Jeff Downer  When a bail agent posts a bond, it is called an undertaking.  Bail agents are often asked how long the bail bond undertaking is valid.  This question is generally concerns whether the bond is only intended for appearance at the initial hearing of the case.

The answer is the bail bond in effect for all court appearances ordered by the judge for a period of three years.  This is per the following section of the Indiana Code:

Indiana Code 27-10-2-3
Undertakings; validity; defect of form or other irregularity; expiration
Sec. 3. (a) An undertaking is valid if it states:
(1) the court where the defendant is to appear;
(2) the amount of the b l; and
(3) that it was made before an official legally authorized to take the bond.
(b) A surety remains liable on an undertaking despite:
(1) any lack of the surety’s qualifications as required by section 4 of this chapter;
(2) any other agreement that is expressed in the undertaking;
(3) any failure of the defendant to join in the undertaking; or
(4) any other defect of form or record, or any other irregularity, except as to matters covered by subsection (a).
(c) Any undertaking written after August 31, 1985, shall expire thirty-six (36) months after it is posted for the release of a defendant from custody. This section does not apply to cases in which a bond has been declared to be forfeited and the surety and bail agent have been notified as described in section 12 of this chapter.
As added by P.L.261-1985, SEC.1. Amended by P.L.355-1989(ss), SEC.1; P.L.105-2010, SEC.6.

If the case goes over the three year period the bond must be renewed to for the undertaking to remain in place.  That being said, in my experience I have never had an undertaking reach the three year expiration limit.

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Posted in Bail Bonds, Business, Indiana, Law, Surety Bond.

Methods of Bail Bond Premium Payment

Jeff Downer  The commercial (surety) bail bond industry in Indiana is heavily regulated.  This regulation extends into how a bail bondsman may accept payment for his services.  This payment is called premium and is defined by Indiana Code as follows:

IC 27-10-1-8
“Premium”
Sec. 8. “Premium” means:
(1) currency issued by the United States of America paid to a bail agent prior to the execution of a bail bond;
(2) a check delivered to a bail agent prior to the execution of the bail bond that must be:
(A) properly payable when delivered; and
(B) deposited in the bail agent’s bank account; or
(3) a credit card transaction if the bail agent:
(A) accepts the credit card; and

(B) obtains:
(i) authorization from the credit card issuer for the amount due; and
(ii) an approval number from the credit card issuer for the credit card transaction;
before the execution of the bail bond.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993, SEC.3; P.L.348-1995, SEC.1.

Accepting payment in any other manner is considered to be failure to collect full premium and is considered a felony per Indiana Code:

IC 27-10-4-5
Failure of bail agent to collect full premium
Sec. 5. A bail agent who knowingly or intentionally executes a bail bond without collecting in full a premium for the bail bond, at the premium rate as filed with and approved by the commissioner, commits a Class D felony.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993, SEC.29.

Ouch!  So the method of paying premium is strictly limited.  A bail agent may accept cash, debit card, credit card or a check.  The full eight percent of the bond amount set by the court must be paid.  The agent may not accept things like cars, boats or other types of property as premium payment.

The complete section of the Indiana Code governing commercial bail bonds may be found here.

 

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Is Bail Bond Premium Refunded?

Jeff Downer  The fee paid to a bail bondsman is called premium.  The premium is earned by using the bail bond company’s financial resources for the full bond amount as a guarantee the defendant will appear in court.  At Jeff Downer Bail Bonds the premium is set by law at eight percent of the bond amount.

Once the case is over, bail agents often are asked if the premium will be refunded.  The answer is no for two reasons:

The first reason is that the premium was earned.  The defendant did not have come up with the entire amount of the bond to be released.  The bail bond company did that and as an insurer assumed the financial risk of the defendant’s failure to appear in court.

The second reason is that the refunding (or rebating) of premium by bail insurers is prohibited by Indiana law and is a criminal offense:

IC 27-10-4-2
Advising employment of attorney; paying fees or rebates; acting as attorney; accepting property; soliciting business
Sec. 2. (a) A bail agent or recovery agent may not do any of the following:
(1) Suggest or advise the employment of or name for employment any particular attorney to represent the bail agent’s principal.
(2) Pay a fee or rebate or give any property to an attorney in bail bond matters, except in defense of any action on a bond.
(3) Pay a fee or rebate or give or promise any property to the principal or anyone in the bail agent’s behalf.
(4) Participate in the capacity of an attorney at a trial or hearing of one on whose bond the bail agent is surety.
(5) Accept any property from a principal except the premium, bail bond filing fee (when applicable), and transfer fee (when applicable), except that the bail agent or surety may accept collateral security or other indemnity from the principal that must be returned upon final termination of liability on the bond. The collateral security or other indemnity required by the bail agent or surety must be reasonable in relation to the amount of the bond.
(6) Solicit business in or about any place where prisoners are confined or in or near any courtroom.
(b) A person who recklessly violates this section or who operates as a bail agent or recovery agent without a valid license commits a Class A misdemeanor.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993, SEC.26.

Confusion about the refunding of premium is understandable. The posting of a cash deposit with the court can be an alternative.  If the defendant has been required by the court or chosen to pay the entire bond amount as a cash bond themselves, then that deposit is eligible to be refunded minus any fines, costs or fees levied by the court.

More information about surety bail bond regulation can be found at the Indiana Department of Insurance Bail Bond Division website.

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Posted in Bail, Bail Bonds, Business, Cash Bond, Indiana, Law, Surety Bond. Tagged with , , , .

Is Murder a Bailable Offense in Indiana?

Jeff Downer  Author’s Note: In June, 2013 the Indiana Supreme Court issued a ruling which changed the scenario in which defendants charged with murder could be held without bail.  Find here a post relating these changes.

The recent arrests of three people in the house explosion on the Indianapolis south side brought to mind the topic of release on bail while charged with murder.

In Indiana the issue of being released on a bail bond is addressed by state statute as follows:

IC 35-33-8-2
Murder; other offenses
Sec. 2. (a) Murder is not bailable when the proof is evident or the presumption strong. In all other cases, offenses are bailable.
(b) A person charged with murder has the burden of proof that he should be admitted to bail.
As added by Acts 1981, P.L.298, SEC.2.

In plain language, murder is not a bailable offense unless the defendant (after a special hearing) can satisfy the court that the prosecution is unlikely to secure a murder conviction at trial.  Needless to say, such scenarios are rare.

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Is Bail Bond Premium Negotiable in Indiana?

Jeff Downer  At Jeff Downer Bail Bonds the monies collected by a bail agent to post a surety bail bond is called premium and by law is eight percent of the total bond amount.  I am often asked when premium is to be paid if the amount and terms can be negotiated.

The answer is no.  The entire eight percent must be paid before the bail bond can be executed.  While other states do permit financing arrangements when paying premium, in Indiana not only are such arrangements not allowed, they constitute the commission of a felony per the section of Indiana code found below.

IC 27-10-4-5
Failure of bail agent to collect full premium
Sec. 5. A bail agent who knowingly or intentionally executes a bail bond without collecting in full a premium for the bail bond, at the premium rate as filed with and approved by the commissioner, commits a Class D felony.
As added by P.L.261-1985, SEC.1. Amended by P.L.224-1993, SEC.29.

More on the regulation of bail bond agents and companies listed in the Indiana Code may be found here.

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