A common question I get on probation violation proceedings in California has to do with eligibility for bail.  And the answer, like most things in law is “it depends.”


If you are on misdemeanor probation, you do have a right to post bail pursuant to Penal Code Section 1272(1) and a case called In re O’Driscoll (1987) 191 CA3d 1356. The amount of the bail is set by a fixed amount bail schedule set by the county. The judge has the discretion to raise or reduce the amount of bail based on mitigating or aggravating factors. In some cases, especially if your attorney can present enough mitigating factors, you may be entitled to be released on your own recognizance (called “O.R.”), pending the outcome of your probation violation proceeding.

One interesting issue: If you show up in court on a warrant for an alleged misdemeanor probation violation, and you show up on your own (meaning you weren’t arrested and brought into court in custody), the court cannot just remand you into custody without any notice. In other words, in this circumstance, you arguably have a right to an O.R. release. See In re Wagner (2005) 127 CA4th 138.

If you are on felony probation, things can be a bit trickier.  Per Penal Code Section 1272(3) and a case called People v Kading (1988) 204 CA3d 1500, the court is under no obligation to grant bail. Your attorney needs to present mitigating circumstances to the court as to why you should be granted a bail and not be remanded into custody during the pendency of the probation violation proceeding. Like any bail proceeding, your lawyer needs to present a clear picture of who you are: Your ties to the community, employment history, reasons why you are not a flight risk, and the circumstances surrounding the alleged probation violation are all important in making this argument. Proof of employment, proof of residence, and supporting letters from people in the community are always helpful.

The only time a grant of bail is mandatory on a felony case is if you are on a Prop 36 drug program. Unless the DA can prove that you are a flight risk or a danger to the community, you must be granted bail if the only accusation against you is that you violated your Prop 36 probation.

Bottom line: If you or a loved one are facing a probation violation in Los Angeles County or anywhere in California, you can find out more about crafting an effective release strategy pending the outcome of the probation violation hearing. Contact the Law Offices of Jerod Gunsberg at (323) 633-3423 or through this confidential email form.

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