FAQ

Frequently Asked Questions

 

What is Bond or Bail?

Bond or Bail is basically a promise or contract with the Accused to come back to court "or else!"

In most cases, a Judge will determine an amount of money that is required for the release of the Accused.  This is determined based on the facts of the case, the person's criminal history, and other factors.  See "What are the Bond Factors that a Judge considers most?". Upon payment of the set bond to the jail, the person will be released on conditions with the primary condition being the promise to return to court for all remaining court dates.  So long as all conditions are met, the bond amount paid will be returned (minus a nominal fee to the jail) upon the end of the case.

Bonds are set in amounts that are routinely too high to pay in full.  Bonding companies are in business to make a profit by charging a fee to the client in exchange for the bonding company to pay the full amount of the bond to the jail.  Usually the bonding company will charge 12-15% of the overall bond.  This fee will not be returned upon the case determination.  For example, if the Accused's bond is $10,000 the bonding company will charge you between $1200-$1500 in exchange for them to pay the $10,000 bond directly to the jail.  There are policies set by each bonding company, and every company is different.  They are in competition with one another, as in any business, and it may be best to shop around the fees and required policies.  See an example of a bail bond company's policies.

Disclaimer: An attorney is not allowed, by Georgia law and ethics, to provide any financial assistance or take on any liability involving the bond of a client.

Definitions

  • Signature Bond ("SOB"): also sometimes called "release on recognizance," this bond allows the person to sign themselves out of jail without paying a bond amount with the promise that if he misses court he is responsible to pay the full bond amount.
  • Straight Bond: means the straight value of the bond amount can be paid using a bonding company or directly to the jail. Property may also be allowed, but varies on jurisdiction.
  • Cash Bond: means that the bond must be paid in cash directly to the jail and no bonding company assistance is allowed.
  • Property Bond: a property deed must be submitted as collateral with a certain amount proven in equity (varies on jurisdiction).
  • Split bond: a portion of the bond may be paid with property and a portion with cash (varies on jurisdiction).
  • 10% bond: 10% of the bond may be paid directly to the jail for return upon completion of case in lieu of fee to bonding company (varies on jurisdiction).

What are the Bond Factors that a Judge considers most?

A Judge considers certain bond factors when deciding to release a person on bond or bail.  These bond factors were determined by the Georgia Supreme Court in a 1993 case called, Ayala v. State, and are sometimes referred to as the "Ayala Bond Factors."

The trial court may release a person on bail if the court finds the person:

  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.

OCGA § 17-6-1 (e). The trial court must explain its reasons for denying bond to assist review on appeal.

What is Probable Cause?

Probable Cause is a legal term that specifies the burden of proof or evidence required for a particular stage of the criminal process to proceed.   The easiest way to define probable cause is the probability or likelihood that this particular crime was committed and the likelihood it was committed by the person accused.  Note that this burden of proof is much lower than the "beyond a reasonable doubt" standard required for conviction.

At the beginning of the criminal process, probable cause is first required before police may search a person or a person's property, and probable cause must exist before they may arrest a person. Second, in most criminal cases the court must find that probable cause exists to believe that the defendant committed the crime before the Accused may be prosecuted or kept in custody pending prosecution.

The requirement of probable cause for Search and Seizure can be found in the Fourth Amendment to the U.S. Constitution, which states:

the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.

For continued prosecution after search, seizure and arrest, the prosecuting agency must prove to the court the continuing existence of probable cause in order to continue holding a person in custody, restricting their freedom and liberty, before the person has ever been convicted of that crime.  This is is usually the requirement for First Appearance and Preliminary or Probable Cause Hearings. See "What is a First Appearance Hearing?"

What is a First Appearance Hearing?

The First Appearance hearing is held within 42-72 hours after a person is arrested.  The government jurisdiction (municipality, city, or state) must prove that there is probable cause to hold the person in custody for the crime alleged.  Probable cause is shown through a signed arrest warrant (where probable cause was already determined prior to arrest) or by the sworn testimony or affidavit of the witness which is usually a police officer. See "What is Probable Cause?"

At this First Appearance hearing, the Judge will inform the person of his/her charges.  The Judge will make sure that the person has a lawyer to represent them through private or appointed counsel.  Then the Judge will make a determination on bond.  See "What is Bond or Bail?"

This is a very quick hearing without any discussion of guilt or innocence.  There is not an opportunity for the accused person to speak with the court (unless through an attorney).  The only consideration for the Judge at this First Appearance hearing is whether there is probable cause and bond.

How long does it take to see a Judge after arrest?

A person must see a Judge after arrest within a reasonable amount of time to determine if there is probable cause to hold the person on the crime alleged. As required by the United States Supreme Court case Riverside v. McLaughlin, a person arrested without the existence of a warrant (typically meaning the arresting officer is the witness to the crime and can attest to the facts on his/her own) must see a Judge within 48 hours of the arrest. If the person was arrested as the result of a warrant, they have 72 hours. This hearing is usually called the first appearance hearing. See What is a First Appearance Hearing?

The remedy to challenge a violation of the Riverside requirements is through a timely petition of habeas corpus. See Habeas Corpus.

What do I do about a pending arrest warrant?

First, take a deep breath.  Realizing that you have an arrest warrant is a terrifying moment, but there are ways to minimize the pain and consequences as much as possible.  Turning yourself in on the arrest warrant will show the Court that you are not running from the problem.  However, turning yourself in without first making arrangements could mean that you will end up sitting in jail for an indefinite amount of time without knowing what is next.

If you know you have an arrest warrant, you have the opportunity to get your affairs together and hire a lawyer.  A lawyer can look into the charges, talk with the investigating officer, and sometimes even arrange for a bond.  The time you turn yourself in can also affect how soon you see a Judge and ultimately get out of jail.

After you get through this process and get out of jail, you and your lawyer are one step closer to finding the  proper resolution this undeniably bad situation.  You can do it.

What does it mean if I have been contacted by law enforcement?

If you've recently been contacted by law enforcement (usually a Sgt or Detective) through a phone call or  a visit, this could mean a few different things.  Your primary concern should be whether you may be suspected of a crime.  You may or may not know whether you are a suspect, but no matter what you must handle this delicate situation very carefully.

This officer may be trying to locate you for arrest or to discuss a pending investigation against you.  During this attempted contact, anything and everything that you say (and your conduct) will become a part of the investigation and will almost always be used against you.  Alternatively, law enforcement may believe that you are a witness to a crime under investigation.  Still, many times a witness can quickly turn into a suspect.

There may be times where speaking with the investigating officer is helpful.  However, under every circumstance it is critical to consult an attorney prior to talking with the officer.  Once a statement is made or an action is taken it cannot be undone.  Planning a course of action to get ahead of the situation is always better than being dragged behind it wishing you could turn back the clock.

I bonded out of jail, and now what?

Now that you are out of jail, you and your lawyer must to set goals for your case.  Through strategizing and investigation, your lawyer can use this valuable time just after you are out of jail, to plan the course of attack.  Sitting around waiting for the State to bring you to court only gives the other side a leg-up.  As soon as you get out of jail, you should have a lawyer already working diligently on your case.  Your lawyer should know more about your case than the government attorney in order to be prepared for whatever they might try to throw at you.

What is a preliminary hearing?

Preliminary hearings in Georgia are also considered the probable cause hearing.  Typically, the preliminary hearing is at least two weeks after arrest or 1-2 months in counties with less frequent court calendars.  In some jurisdictions, the Court will not automatically hold a preliminary hearing unless one is requested.  A preliminary hearing is waived when either a person is released on bond or the grand jury returns a true bill of indictment.  This is because the purpose of a preliminary hearing is to determine whether there is probable cause to keep a person in jail prior to conviction.  If a person bonds out of jail or a grand jury already found probable cause, a hearing is no longer necessary.

At the preliminary hearing, the prosecutor will call a witness who is usually the arresting officer.  Hearsay is allowed.  The defense lawyer will cross-examine the witness and obtain valuable information about the case.  The Accused can put up evidence but it is not advised in the typical case at such an early stage.  At the close of the preliminary hearing, the judge will determine whether there is probable cause for each element of every charge alleged.  In most cases, this is the final stage where the judge has discretion to dismiss a charge for lack of evidence with the help of skilled argument and representation.

What is an Indictment?

To indict is to formally charge an Accused of the crime. The indictment is decided by a grand jury.  The grand jury is made up of 16 to 23 citizens from the county who are randomly selected from driver’s license and voter’s registration lists.

Generally speaking, the grand jury hears a very basic recollection of the evidence from the state's perspective. The district attorney chooses to present which witness testifies usually being the arresting officer.  Defendants nor their lawyers are permitted to attend; therefore, the grand jury hears only a one-sided presentation almost always returns a "true bill" of indictment.  If a true bill is issued, the Accused is formally indicted and charged with the crime. If the grand jury feels there is not enough evidence (or probable cause) to charge the Accused, it will issue a "no bill." The person will then be released and the charges dropped.  (Unfortunately, this rarely occurs).

Certain cases involving less severe felonies like shoplifting, credit card transaction fraud, forgery, and entering an auto, are not presented to a grand jury for indictment. In these cases, the district attorney may proceed on an "accusation" by filing a written document with the court that allows the case to go forward.

Upon indictment, the Accused no longer has the ability to request a preliminary hearing before the judge to decide the issue of probable cause.  In many jurisdictions, the district attorney knows that indictment is a surer way to secure formal charges, and many will circumvent the judge by convening a jury before the Accused is scheduled for preliminary hearing.

If the Accused is not indicted, or otherwise formally charged, within 90 days of arrest, he/she is entitled to a reduction in bond or release from custody.

 

What is the arraignment?

Arraignment is the first hearing after official charges are initiated through an Indictment or the prosecutor's Accusation.  The judge formally instructs a person on their charges, reading it aloud into the record unless waived, and verifies whether the Accused has legal representation.  Usually the judge will require that the Accused sign the charging document and designate a plea of either "Not Guilty or "Guilty."

Judges will sometimes set deadlines for the filing of motions and other legal arguments.  Trial dates will also sometimes be predetermined.

Where are the immigration FAQs?

Answers to FAQ about the immigration process are soon to come.  Please take a look at our immigration page for more detailed information.