Client: “My son has been arrested. But the court has not set bail. Isn’t he entitled to bail under the Constitution? Doesn’t he have the right to have a bail set?”

Lawyer: “Yes, there is a constitutional right to bail in the federal and state constitutions. But not every defendant is entitled to have bail set. There are exceptions.”

Under the Louisiana Constitution, before and during trial, a person shall be entitled to bail by a personal or commercial surety. However, there are two exceptions. The first exception is when the suspect is charged with a capital offense and the proof is evident and the presumption of guilt is great. The second exception is similar. It applies when a person is charged with a crime of violence or a drug trafficking crime and the proof is evident and the presumption of guilt is great, and after a contradictory hearing, the judge finds by clear and convincing evidence that there is a substantial risk that the suspect may flee or poses imminent danger to other persons or the community. Louisiana Code of Criminal Procedure provides for three types of bail: bail through surety, bail through cash deposits, and bail without surety. But, most people are familiar with the different types of bail by their more common or customary names:

• A commercial surety is a company that accepts a fee in exchange for posting your bond. The typical fee is 12 percent of the amount of the face of the bond. Once you have paid this fee, it is gone. You do not get the money back, even if you show up for court as required. Further, if your bail is pulled, and you are put back in jail, you may have to pay the fee a second time in order to get bailed out again. For example, if you miss court and the judge issues a bench warrant for your failure to appear, the bonding company does not have to bail you out again when you are picked up on the warrant. If you are picked up on the warrant and put back in jail, the bonding company can insist on the payment of the 12% fee all over again in order to bond you out again.
• A property bond is when your relatives put up their land, home or other immovable property as security for your bond. Family members can only use property as security for a property bond to the extent that it is free and clear of debt. For example, if your family has a house worth $100,000, but they owe the mortgage company $40,000 on the house, then they have $60,000 of equity ownership. They can put up the house as security for $60,000 of your bond. The advantage of a property bond over a commercial surety bond is that when the case is over, the property is release from the bond obligation, and you have essentially spent nothing.
• A cash bond is similar to a property bond, except that instead of putting up property, you are putting up cash with the sheriff’s department. So if your bond is $100,000, you have to deposit $100,000 cash with the sheriff’s department. The sheriff’s department will hold your cash, and will not forfeit it as long as you show up for all your court dates. Once your case is over, the cash will be returned. So in that sense, it’s less expensive to put up a cash bond than use a commercial surety. The disadvantage is that it ties up your cash and you have to have a lot of cash on hand to be able to do it.
• A personal surety is when a judge specifically allows family members or relatives to put up their future income as security for your bond obligation. This is often called a W-2 bond because your family members have to bring in their W-2s to prove to the judge how much income they expect to have in the future.
• Unsecured surety, or bonding out on one’s own recognizance

At a bond reduction hearing, the judge considers a number of factors that do not necessarily have anything to do with guilt or innocence. For instance, the judge considers:

• The seriousness of the offense and whether it is a crime of violence
• The weight of the evidence against the defendant (the judge will look into the weight of evidence against the defendant, but will not conduct a full blown trial of the case)
• The defendant’s previous criminal records
• The ability of the defendant to give bond
• The danger to the community that would be posed by the defendant’s release, if any
• The defendant’s voluntary willingness to participate in a drug testing program
• If tested at the time of arrest, whether the defendant was on drugs at the time of arrest
• Whether the defendant was already out on bond on some other offense at the time of arrest
• Any other circumstances the judge thinks are relevant.

A court can also impose certain conditions upon a person’s release on bond. For example, the court can require that the defendant refrain from having any contact with the alleged victim. In certain cases, the court can require that the defendant submit to wearing an electronic monitoring device or to home incarceration. And in cases involving drunk driving, in certain instances the court can insist that the defendant install an ignition interlock device on any vehicle which he operates. Failure to comply with any of these conditions can result in the revocation of bail.

Particularly in cases where an innocent client is anxious to have the charges against him dismissed as quickly as possible, I am oftentimes asked to file a Motion to Quash. Many people have the common misconception that a motion to quash a criminal charge can be filed on the grounds that the defendant is innocent. In other words, I am often asked to file a Motion to Quash on the grounds that the state does not have enough evidence to prove the defendant’s guilt. However, that is not a proper foundation for a Motion to Quash.

The proper forum for determining whether the state has sufficient evidence to convict is a trial itself. The motion to quash a criminal charge prior to trial is only allowed in certain circumstances and based on certain grounds. The more commonly used of those allowable grounds for filing a Motion to Quash are the following:

• Trying the defendant for the offense would constitute double jeopardy
• The time limitation for the institution of prosecution or for the commencement of trial subsequent to the institution of prosecution has expired

There are several other grounds for filing a Motion to Quash on behalf of the defendant, but the circumstances occur so rarely, they are not worthy of discussion here. A Motion to Quash can be filed at any time before the commencement of trial when based on double jeopardy grounds or the expiration of the time limitation. Of course, if a Motion to Quash is granted on the two grounds mentioned above, the court orders the defendant discharged from custody and dismisses the charge.

If a non-English speaking person is a defendant or an interested party before the court, and has requested an interpreter, the courts are required to appoint a competent interpreter to translate the proceedings for him. This is provided for by law in the Louisiana Code of Criminal Procedure, and is not discretionary with the courts.