California Domestic Violence Attorney San Francisco Domestic Violence

Pre-Trial Release in Domestic Violence Cases

Prosecutors oppose a defendant’s release from custody even when the incident the defendant is charged with happened months or more before their arrest and the defendant has been out of custody all that time without hurting the victim. They argue that the defendant should stay in jail because they might attack, stalk, or kill their victim. Judges often refuse to release a defendant pending trial because they are concerned that the defendant will go after the victim again.

The police initially hold defendants in domestic violence cases on felony charges. Statutory felony bail at $10,000 or $25,000 is much higher than misdemeanor bail, average $5,000. In cases with no serious injuries the San Francisco district attorney will generally file misdemeanor rather than felony charges. This results in a substantial decrease in the bail amount. A defendant who stays in jail until arraignment, usually within three days of their arrest, can ask the court to release them on a lower bail or on their own recognizance without posting bail. Defendants that have warrants from other counties or immigration holds may not be eligible for release on bail.

Bail bond companies charge a fee of 10% of the bond that is not refundable. Alternately a defendant can post cash bail that is fully refundable, a month or so after the disposition of the criminal case. If a lawyer files a bail motion the court may reduce bail. It takes at least two days to get a court date for a bail motion, and if you get your bail lowered expect to wait over a month and a half for the refund. Friends, employers or family members who post bail for a defendant who fails to appear for court may be civilly liable for the entire amount of the bail.

Judges release defendants on the condition that they attend a batterer’s program, and where appropriate a substance abuse program, or anger management classes, parenting classes. Defendants are monitored by the probation department, and come to court for progress reports while their case is pending. This policy imposes a pre-conviction restriction of liberty. In many cases defendants who have no money to post bail stay in jail on a no time waiver basis for over 30 days, only to have the charges dismissed on the day of trial. In domestic violence cases the right to a speedy trial within 30 days of arraignment for misdemeanors is undermined by an exception (Penal Code section 1050(g)) that gives the D.A. the power keep a defendant in jail for another 10 days.

A defendant who posts bail may not be obligated to attend the batterer’s program while their case is pending, but a domestic violence attorney may have to file a written motion. If the defendant makes any admissions about his or her case in the group counseling sessions, his or her group leader may well inform the prosecution, in spite of the patient/client privilege. Until I took the issue to the court of appeal in 1998 the domestic violence courts refused to address the issue of bail reduction in domestic violence cases at a defendant’s first appearance in court.

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