Can You Be Taken Into Custody at Arraignment, Even If You Posted Bail?

Jerod Gunsberg, Los Angeles Criminal Defense Lawyer

As a Los Angeles criminal defense attorney one of the most common questions I am asked is about bail. Most people understand the basic idea of bail: In the vast majority of cases, if you are arrested and taken to jail, you have to right post bail as a guarantee that you will return to court. You can either post the full amount of bail in cash or you can use the services of bail bond company. A bond company is basically an insurance agent. You pay the bond company a percentage of the bond (same as you would pay an insurance premium) and they guarantee the rest of the bond in exchange for your promise to appear in court.

It should go without saying that if you are arrested for a new offense while on bail and before your arraignment, the judge has the right to remand you into custody at arraignment pending a new bail hearing on the new charge.

In some cases, even if the defendant is not arrested on a new charge prior to the arraignment the District Attorney tries to raise the bail at the arraignment date. Is this legal? In some circumstances, yes it is. All bail bonds in California are set by a county wide bail schedule. Each offense carries a certain amount of bond. In most cases, the court has the discretion to deviate from the recommended bail amount – either higher or lower.

Bail can get raised at arraignment if additional or more serious charges are filed than the ones for which you were arrested. From the time you are arrested until your arraignment date, the police and district attorney can (and often do) continue to investigate your case. If the DA believes the evidence supports it, they can and will add additional charges. The prosecution may ask the court to raise your bail to reflect the schedule for the new charges. If the court goes along with the DA’s request you would be required to post new bail to make up the difference in the amount.

Another issue that happens is sometimes the police inadvertently apply a bail below the bail schedule. Sometimes the police assign a bail amount that is lower than the amount called for on the on bail schedule. This is a mistake on their part. In cases involving serious felony charges, at arraignment, the DA’s office may ask the court to impose bail at the amount of the bail schedule, especially when the alleged charges are “strikes” under California’s Three Strikes Law.

Of course, your lawyer should do everything to prevent this from happening. First, your lawyer should do everything possible to find out what charges are being filed before the arraignment date. That way they’ll have a sense if there’s a chance that the DA may seek to raise the bail. At that point, the attorney can make the appropriate arguments: no new facts or change in circumstances from the time of arrest to the time of arraignment; extensive and deep ties to the community (family, home ownership, employment, etc.); minimal criminal history, and any factual defenses already contained in the police report.

BOTTOM LINE: If you or a loved one are concerned about bail being raised at arraignment, you should contact the Law Offices of Jerod Gunsberg, an experienced Los Angeles criminal defense attorney, at (323) 633-3423 or via the secure contact form on this page for a confidential consultation.

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