How does the bail process work?
- How does the bail process work?
- What is Bail?
- What is the purpose of bail?
- Do I get my money back after the defendant goes to court?
- What if the person I bail out skips?
- If the defendant does not appear and the court orders a forfeiture, can it be set aside if he later appears?
- If the defendant has skipped town, what must the bail fugitive recovery person be able to show? Is that person a bounty hunter?
- What if the underlying criminal charge is dismissed?
- Can bail be increased?
- What else may happen when a defendant fails to appear?
- What is an immigration bond?
- What is a bail bond indemnitor?
- Iowa Bail Bond Laws
Posting of a bail bond. This process involves a contractual undertaking guaranteed by a bail agent and the individual posting bail. The bail agent guarantees to the court that the defendant will appear in court each and every time the judge requires them to.
For this service, the defendant is charged a percentage of the bail amount. Before being released the defendant or a relative or friend of the defendant, typically contacts a bail bondsman to arrange for the posting of bail. Prior to the posting of a bail bond, the defendant or a co-signer must guarantee that they will pay the full amount of bail if the defendant does not appear in court.
Typically, a family member or a close friend of the defendant will post bail and cosign. Collateral is not always required for a person to be bailed from jail. Often a person can be bailed from jail on the signature of a friend or family member. Cosigners typically need to be working and either own or rent a home in the same area for some time.
After an agreement is reached, the bail agent posts a bond for the amount of the bail, to guarantee the defendant's return to court.
If the defendant "skips", the cosigner is immediately responsible for the full amount of the bail. If the defendant is located and arrested by the bail agent the cosigner is responsible for all expenses the bail enforcement agent incurs while looking for the defendant.
What is Bail?
The term Bail is used in several distinct senses: (1) It may mean the security-cash or bond-given for the appearance of the prisoner. (2) It may mean the bondsman (i.e., the person who acts as surety for the defendant`s appearance, and into whose custody the defendant is released). (3) As a verb, it may refer to the release of the defendant (he was bailed out). The first meaning is the most common and should be employed for clarity.
Admission to bail is the order of a competent court that the defendant be discharged from actual custody upon bail. The discharge on bail is accomplished by the taking of bail (i.e., the acceptance by the court or magistrate of security-either an undertaking or deposit-for the appearance of the defendant before a court for some part of the criminal proceeding).
Bail is evidenced by a bond or recognizance, which ordinarily becomes a record of the court. The bond is in the nature of a contract between the state on one side and the defendant and his sureties on the other. The agreement basically is that the state will release the defendant from custody the sureties will undertake that the defendant will appear at a specified time and place to answer the charge made against him. If the defendant fails to appear, the sureties become the absolute debtor of the state for the amount of the bond.
What is the purpose of bail?
The purpose of bail is to assure the attendance of the defendant, when his or her presence is required in court, whether before or after conviction. Bail is not a means of punishing a defendant, nor should there be a suggestion of revenue to the government.
Do I get my money back after the defendant goes to court?
When the bailbond has served its purpose, the surety will be exonerated (i.e., released from the obligation). Exoneration normally occurs when the proceeding is terminated in some way or on the return of the defendant to custody. After conviction, the defendant appears for sentence. If sentenced to imprisonment the defendant is committed to the custody of the sheriff, and the liability of the surety terminates. You will not receive any money back that you have paid a bail bondsman.
What if the person I bail out skips?
The surety or depositor may arrest the defendant, or authorize a bail enforcement agent or private investigator to do so for the purpose of surrendering him into custody to ensure his future appearance. This extraordinary power of the bail bondsman is of ancient origin. When bail is given, the principal is regarded as delivered to the custody of his sureties. The following may be authorized to arrest a bail fugitive: A certified law enforcement officer. A person licensed by the State to do so (i.e., holding a bail license in another state and authorized in writing by the bail or depositor to make the arrest). A person contracted and authorized in writing by the bail or depositor to do so, Bail Recovery Agent, A private Investigator. Persons doing the foregoing have been called bounty hunters, yet the term does not fit the facts of today`s world, they are acting under contract.
If the defendant does not appear and the court orders a forfeiture, can it be set aside if he later appears?
A court will sometimes order bail forfeited on the defendant's nonappearance, then vacate the forfeiture to reinstate the bail when the defendant appears and offers an explanation for the absence. Some instances of this would be the nonappearance because of death, illness, or insanity, or detention by civil or military authorities, and if the absence was not with the connivance of the bail (acquiescence of the bonding company to the absence). An example of illness would be where the defendant is confined to bed by reason of a doctor's order. If a defendant flees and the prosecuting agency does not seek extradition the bail may be exonerated.
If the defendant has skipped town, what must the bail fugitive recovery person be able to show? Is that person a bounty hunter?
That he possesses the authority to arrest by virtue of satisfying any licensure requirements a state may impose upon such a person. Additionally, he or she must have in their possession proper documentation of authority to apprehend issued by the bail or depositor, which shall include the name of the individual authorized to apprehend the bail fugitive, the address of the principal office, the name and business address of the bail agency, or other party contracting with the individual authorized to apprehend a bail fugitive. In a historical sense they are a bounty hunter as they generally are contracted to do this and are remunerated for their services by the bail agency or other contracting party. The bounty hunters of old are not the bail enforcement agents of today. Some jurisdictions require significant training and licensure of persons engaged in the recovery of bail absconders.
What if the underlying criminal charge is dismissed?
Statutes provide for exoneration of the surety in the event of dismissal. However, there is usually a time period within which the prosecuting agency may seek to re-arrest and charge with a public offense arising out of the same act or omission upon which the action or proceeding was based. You will not receive any money back from the bail bond company.
When can bail be increased?
After a defendant has been released, the court in which the charge is pending may require him to give additional bail in an amount specified or to meet an additional condition upon a finding made in open court that the defendant has failed to appear; or that additional facts have been presented that were not shown at the time of the original release order, and the court may order him to commitment unless he or she gives such bail or meets such other conditions.
What else may happen when a defendant fails to appear?
The court may issue a bench warrant for his apprehension and arrest for the failure to appear upon the underlying charge, which would thus be a separate triable offense, separate and distinct from the original charge. The appropriate agency will enter each bench warrant issued on a private surety-bonded felony case into the national warrant system (National Crime Information Center (NCIC)).
What is an immigration bond?
An immigration bond issued for delivery of an alien guarantees that the individual will appear for all I.N.S. hearings on time and depart the United States at a specified date.
An immigration bond conditioned for maintenance of an alien, guarantees that the person will be financially independent during the time he/she is in the United States.
What is a bail bond indemnitor?
A bail bond indemnitor is the co-signer for the bail bond. The indemnitor is responsible for seeing that all premiums are paid for a defendant's bail bond.
Bail bonds are normally good for one year. If the case continues for longer than a year, additional premiums will be due and collected for each year the case goes on.
Bail bond premiums are not refundable, as they are used for the bail agent`s expenses, etc. The indemnitor is also responsible for additional expenses incurred by the bail agent in the transaction of a bail bond, such as long distance calls, travel, etc.
An indemnitor is no longer liable for the defendant's bond when the defendant has completes all of his/her court appearances, and when all premiums have been paid. It is best to contact the bail bond company when the bail bond is exonerated by the court, for the expedient return of any collateral pledged and to confirm that the bond is exonerated.
In the event of forfeiture, the indemnitor is liable until the full amount of the bail has been paid, plus any expenses incurred, or until the court exonerates the bond. The bond then becomes void.
Iowa Bail Bond Laws
1. Applicable Statutes
Iowa Code Title 3: Public Services and Regulation, Subtitle 1: Public Safety, Chapter 80A: Private Investigative Agencies and Security Agents
Iowa Code Title 16: Criminal Law and Procedure, Subtitle 2: Criminal Procedure, Chapter 811: Pretrial Release- Bail.
The Regulatory Body is the Department of Public Safety for Bail Enforcement Agents and the Department of Insurance for Bail Agents.
2. Licensing Requirements
Bail agents are licensed as insurance producers in Iowa and must comply with the following for licensure:
* Be at least 18 years of age
* Not have been convicted of a felony, or found to have committed insurance fraud, unfair trade practices, student loan default or child support default
* Take and pass written examination testing knowledge of insurance laws of Iowa
* Pay $50 examination fee
* Fill out required application forms
* Have the character and competence to act as an insurance producer
* Not have been denied an insurance producer license in any other state or territory
3. Notice of Forfeiture
If the defendant fails to appear, the court must direct an entry of the failure to be made of record, and the undertaking of the defendant's bail, or the money deposited, is thereupon forfeited.
[IC § 10-2-811.6]
The court shall direct the clerk of the district court of the county to give ten days' notice in writing to the defendant and the defendant's sureties to appear and show cause, if any, why judgment should not be entered for the amount of bail.
If such appearance is not made, judgment shall be entered by the court. If appearance is made, the court shall set the case down for immediate hearing as an ordinary action.
4. Forfeiture to Judgment
The period between forfeiture and judgment is 10 days. [IC § 10-2-811.6]
5. Forfeiture Defenses
While there appear to be no statutory defenses to forfeiture, Iowa case law reflects that forfeiture may be avoided only when a bondsman shows some "reasonable excuse" for failing to produce the defendant. See State v. Costello , 489 N.W.2d 735 ( Iowa , 1992)
Where a forfeiture and judgment have been entered as provided in this section, and the amount of the judgment has been paid to the clerk, the clerk shall hold the same as funds of the clerk's office for a period of sixty days from the date of judgment.
The court may, upon application, set aside such judgment if, within sixty days from the date thereof, the defendant shall voluntarily surrender to the sheriff of the county, or the defendant's sureties shall, at their own expense, deliver the defendant to the custody of the sheriff. Such judgment shall not be set aside, however, unless as a condition precedent thereto, the defendant and the defendant's sureties shall have paid all costs and expenses incurred in connection therewith. [IC § 10-2-811.6]
7. Bail Agent's Arrest Authority
For the purpose of surrendering the defendant, the surety, at any time may arrest the defendant, or, by a written authority endorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so. In making an arrest pursuant to this subsection, the surety or any person empowered by the surety shall possess no more authority than a peace officer would possess in making a lawful arrest under section 804.8, 804.13, 804.14, or 804.15. [IC § 10-2-811.8]
8. Other Noteworthy Provisions
Civil liability of bail enforcement agents. [IC § 3-1-80A.16A]
A person other than a defendant who is injured in person or property by the actions of a bail enforcement agent in taking or attempting to take a defendant into custody may bring a civil action for damages against such agent and the bail enforcement business for breach of any applicable standard of care.
Notwithstanding the limitation of liability of any surety for the actions of a bail enforcement agent or bail enforcement business, the court shall enter a judgment against a bail enforcement agent or bail enforcement business determined to have breached the applicable standard of care. The judgment shall include an award of treble damages, and recovery of costs and reasonable attorney fees.
9. Noteworthy Appellate Decisions
State of Iowa v. Hawkeye Bail Bonds , No. 96-764
Supreme Court of Iowa, June 18, 1997.
Hawkeye Bail Bonds acted as surety on two bonds posted by Juan Jose Rojas- Cardona (the defendant) in two separate appeals from criminal convictions. After the convictions were affirmed on appeal, the defendant requested and obtained delays in the issuance of the mittimus in each case. When the extended time expired and the defendant did not appear, the court forfeited his bonds. The surety appealed.
Hawkeye raises three issues on appeal: (1) whether the court's delays in the issuance of the mittimus were illegal, thus relieving the surety of its obligation; (2) whether extending the mittimus improperly modified Hawkeye's obligation; and (3) whether the defendant's appearance at the August 5, 1994 probation revocation hearing constituted an appearance that would satisfy Hawkeye's obligation.
The court concludes that nothing in the statutes prohibited the extension of the time for issuance of the mittimus. The court further concludes that the court's extension of the time for execution of the judgments did not modify the bail bonds so as to relieve Hawkeye of its liability. In the present case, however, the bond required that the defendant surrender himself in execution of the judgment. This never occurred. Although the defendant was in the presence of the court after the appeal on August 5, 1994, the actual execution of his judgment was not set until November 15, 1994. The defendant did not appear, and the terms of the bond were not fulfilled. The court agrees with the district court that the surety remains liable under these appeal bonds. The decision is affirmed.
State of Iowa v. McFarland, No. 97-1928.
Court of Appeals of Iowa., April 30, 1999.
Philip McFarland and Edward Green claimed to be bounty hunters. In March 1997, they allegedly received a tip that Maurecio Gomez had skipped bail and was staying at a mobile home park in Des Moines . On March 18, 1997, sometime between 1:30 and 2:30 a.m., McFarland and Green arrived at the mobile home of Wendell and Sandy Leach. The Leaches and three of their four children were home. McFarland began pounding on the front door of the Leach mobile home. When Wendell Jr. asked what was going on, McFarland broke the front door open and barged into the home. In the process, the door flew open and Wendell Jr. was knocked against a closet. McFarland said he was a bounty hunter and stated he was "looking for some Mexicans." Sandy and Wendell argued with McFarland about his being in their home. McFarland threatened to "smack" Sandy if she did not "shut up." When McFarland realized Gomez was not connected with the Leaches, he apologized, left the home, and went to the trailer next door. McFarland was charged with second-degree burglary.
At trial, McFarland's request for a jury instruction on a citizen's arrest, which he claimed encapsulated his defense, was denied. McFarland was convicted of second- degree burglary and sentenced to an indeterminate ten-year sentence. McFarland appeals. The court holds the citizen's arrest defense cannot be used as an affirmative defense to burglary or assault when unlawful entry or force is used against an innocent third person, who is neither a felon nor a person interfering with the lawful arrest of a felon. Courts from several other states have held the same. The court finds that for these reasons, the trial court did not err in refusing to give the jury instruction.
State v. Sellers , 258 N.W.2d 292 ( Iowa 1977).
Fact that agent who executed bail bonds was not licensed by the State of Iowa did not preclude insurer from being held liable on the bonds.
10. Bounty Hunter Provisions
"Bail enforcement agent" means a person engaged in the bail enforcement business, including licensees and persons engaged in the bail enforcement business whose principal place of business is in a state other than Iowa . [IC § 3-1-80A.4]
Bail enforcement agents must comply with the following for licensure: [IC § 3-1-80A.1]
* Be eighteen years of age or older.
* Applicant may not be not a peace officer.
* Have never been convicted of a felony or aggravated misdemeanor.
* Applicant must not be addicted to the use of alcohol or a controlled substance.
* Does not have a history of repeated acts of violence.
* Be of good moral character and has not been judged guilty of a crime involving moral turpitude.
* Has not been convicted of a crime described in section 708.3 , 708.4, 708.5, 708.6, 708.8, or 708.9
* Have not been convicted of illegally using, carrying or possessing a dangerous weapon.
* Have not been convicted of fraud.
* Submit to fingerprinting and background check
The fee for a two-year license for a bail enforcement business is one hundred dollars.