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       Philip J. Clarke, III
         Attorney at Law
    Criminal Trial Attorney
  Offices Located at:
   534 North 35th Street, Unit I
   Morehead City, NC 28557
   Telephone: (252) 222-5252
email me
Pretrial Release -- Making Bond

When a person is arrested they are taken to appear before a magistrate for an initial appearance.  At that time,  a Conditions of Release and Release Order (Form AOC-CR-200) will be entered by the magistrate; in most cases immediately authorizing the defendant's release upon the depositing of an amount of cash, or upon the documented promise to pay money or surrender property in the event that the defendant fails to show up for court.  In less serious cases the defendant may be released upon his written promise to appear. The release order will often include conditions, such as not being in contact with an alleged victim and/or staying away from certain places. In some cases this may include very strict limitations. The date of the defendant's first appearance will be set by the magistrate at the initial appearance.

In domestic violence cases the conditions of release must be set by a judge (not a magistrate), unless a judge is not available within 48 hours; then a magistrate should set the bond. Due to the requirement that bond in these cases be set by a judge, a person arrested after court working hours on a Friday will not normally have a bond set until Sunday evening. A person accused of domestic violence should not be held more than 48 hours without a bond being set.  

If you are in custody, your first appearance before a judge must occur within 96 hours of your arrest or at the next regular session of district court, whichever is earlier.  At the first appearance hearing, the district court judge will advise you of your rights and the potential consequences of the charges,  against you, and will ask whether you would like to apply for court-appointed counsel or whether you intend to hire your own counsel.  Remember that anything you say in that courtroom may be used against you.(See Right to Remain Silent).  If you do not have money available to hire legal counsel, you should consider asking for court-appointed counsel at this time, so that you can get some legal advice immediately, and maybe get some help on reducing your bond right then. If you are found eligible and an attorney is appointed, you may find that you are comfortable with your appointed counsel and be glad not to have to worry about coming up with money for legal fees at this time. If you or your family later desire to hire private counsel and can afford to do so, that can still be accomplished, and the court-appointed attorney will withdraw from your case. If you can afford a lawyer, you should contact one as soon as possible. Getting legal counsel you feel you can trust,as early in the process as possible, should be a priority for you. 

The judge should also review the conditions of your pre-trial release at the first appearance (this includes the amount and type of bond). Prosecutors often argue that they are not prepared for a hearing on bond at the time of your first appearance, but the law requires the judge to review your eligibility for release at the first appearance. One problem here is that you may not be prepared to make a persuasive argument about why your bond should be reduced at that time, so you might rather request that a date be set within a couple of days for that purpose. If you are able to hire an attorney prior to your first appearance, then you may be better prepared to effectively argue for a reduced bond at that hearing.  

Bail-bondsmen are available to step in and guarantee the defendant's bond for a statutory maximum fee of 15% of the bond amount. (Example: Bondsman's fee for a $10,000  bond would be no more than $1,500). Fees paid to bondsmen are not refunded under any circumstances that I am aware of, since the fee is earned when they get you out of jail. Real property (land/homes) can also be used to secure the bond if the owner's equity in the land is worth more than the bond amount. This normally requires a lawyer to do a title search and draft a deed of trust and promissory note, and must be done during working hours. Sometimes a judge will reduce amount of the bond if it is to be a cash bond where the defendant supplies his own cash. In this situation the person putting up the cash will get it all back once the defendant's case has been resolved. 

Any time that you are looking to modify a bond, the district attorney's office must be involved, and normally will schedule the hearing before a judge within a day or two of a request. Sometimes a prosecutor will agree to a reduced bond. If so, the process can be as fast as getting a judge to sign the order. Judges normally will not have a problem setting release conditions agreed to by both sides. If the prosecutor does not agree with your request then there will be a contested hearing before the judge where the rules of evidence do not apply.  The prosecutor can say all sorts of things about why your bond should not be reduced or modified that would not admissible at trial, and they do not have to prove them. The prosecutor may even request that your bond amount be increased at such a hearing. Your lawyer will argue the reasons why your request should be granted and will rebut the state's argument. It is good to know what your chances of success are when you are considering a bond hearing. An experienced local criminal defense attorney should be able to predict the likely outcome of a bond-reduction hearing in most cases, if he is provided with some background facts, but because the state has had no obligation to provide discovery information to the defendant at this stage of the case, the prosecutor may bring up things against you that your attorney is not necessarily prepared to defend. If you want an attorney,to be able to represent you well, you will have to trust that attorney enough to provide true information about your past history as well as your present case. If you have failed to appear on previous court dates, your attorney should not hear this for the first time from the prosecutor at a hearing on your bond.

Oftentimes the first thing, and the only thing that a person who has just been arrested can think of is getting out of confinement as soon as humanly possible. This is perfectly understandable, and perhaps in most cases making bond is pretty straight forward - you know the price you are willing to pay to get out of jail and you simply pay it. But there are some scenarios, especially with more serious charges and higher bond amounts, where a little delay might be well worth the price of a night or two in jail or even longer. A bond reduction hearing might take a few days to schedule, but it might save you a lot of money in the long run. And this is not the only reason you might wisely choose to hold off on making bond. There are things that might happen to spoil your plans. If there are limits to the funds you have available to help you, it might make sense to sit down and plan your case strategy before you spend all your money on what could end up as a very short break from the jail. A brief conversation with an experienced criminal law attorney might end up saving you jail time, money and regret in the future. Call (252)222-5252 to set up a consultation on this issue as it relates to the facts of your situation. 
(C) Copyright 2012 by Philip J. Clarke, III.  All rights reserved.