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Bail

Pretrial release in New Jersey takes three basic forms. If the complaint filed against a person is issued as a summons, no bail is required. The summons is based on the assumption that the person charged does not pose a danger and is likely to appear in court. When a warrant is issued instead of a summons, it means that the accused must be arrested and some form of bail is set. After a complaint is signed, it is presented to a magistrate or superior court judge, who will set a bail that must be posted as a condition of release from custody. It is the guarantee that the person will be present in court.

The third form of release is personal recognizance. The accused, as a good member of the community, is likely to appear in court. This form is called ROR. Frequently there is a bail amount set and the person is released ROR. If the accused fails to appear for court, he is obligated to pay the forfeited bail amount.

In disorderly persons or third and fourth degree felony cases, the Rules of Court permit ten percent bail. Ten percent bail means that the accused, a friend or relative, or a bail bond agent, must post ten percent of the face amount of the bail set by the judge. The person posting bail is called the surety. For example, if the bail is $25,000.00 at ten percent, then the surety must present cash in the amount of $2,500.00 plus a nominal filing fee. If the accused does not appear for court, the surety is liable for the full amount of the bail.

In all forms of bail, including ROR, a judge may order additional conditions of release. Possible conditions may include a mental health evaluation, drug counseling, or no contact with someone as a requirement of continued release on bail. If the accused violates a special condition of bail, the court may revoke bail. The accused will then be incarcerated until the case is heard, or the court may reconsider it's position usually after a defense attorney makes a motion to set, reduce or change the conditions of bail.

In more serious cases of the first or second degree, or in cases where there is a history of criminal activity, a risk of flight, or domestic violence, cash bail will be required. Also, in cases of homicide, robbery, sexual assault, serious drug offenses and endangering the welfare of children, full cash bail will be ordered. The surety must post the face amount of the bail with full cash, or engage the services of a bail bond agent. If a personal surety posts the cash bail, and the accused appears at every court appearance, the bail will be refunded when the case is over. A defense attorney may ask the court to change the bail to ROR in order to free the bail funds and return the money to the surety. This can be done at any time. If a bail bond agency is used, generally ten percent of the bail amount must be tendered to the agent to pay the cost of the bail insurance, which is not refundable. When agents are used, they may require conditions of release including periodic calls to the agent, appearing for all court events and extra financial conditions.

Bail can also be secured with a property bond. To use real estate situated in New Jersey there must be unencumbered equity in the amount of the bail plus $20,000.00. In cases where New Jersey real property is used, the owner must supply an affidavit containing a legal description of the property, the mortgage, the market value of the unencumbered equity, as determined by an appraiser licensed in this State and finally a statement by the owner of the property. Joint affidavits may be required when more than one person is the legal owner of the property. The appropriate instructions and forms are usually available at the county sheriff's department or in the courthouse. In some cases it may be necessary to supply additional affidavits on forms supplied by the New Jersey Attorney General setting forth the source of the money or real property used and the relationship of the surety to the accused. Newly enacted statutes also permit the court to conduct an inquiry not only into the source of the bail money, but also the character of the person posting bail, the relationship to the accused, and the source of the money. The purpose of the judicial inquiry is to ascertain whether the money to be used to post bail was acquired through unlawful conduct.

The using of real estate to post bail allows family and friends to put up property to ensure the presence of the accused for trial without having to pay a bail bond agent. However, as with cash, if the person does not appear in court, then the surety, that is the person who used his property to guarantee the bond, may be required to pay the bail or risk forfeiture of the property.

It is clear that a criminal defense lawyer can be instrumental in ensuring that the bail set in a case is the least burdensome and to guide the accused in fulfilling any conditions of release.

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Joseph J. Rodgers, Chartered
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