When a person gets arrested on criminal charges, they have the option to get bail while the case is still proceeding. A defendant can get bail through the courts under certain terms and conditions.
The defendant is required to abide by the conditions set by the court and they can get arrested while on bond if they do not fulfill the conditions of their bail. They can also get arrested for entirely different criminal charges as well.
If someone is arrested on a second charge while on bail, their circumstances are handled quite differently than the first time they were arrested. Defendants need to understand why it is a bad idea to get arrested while on bail.
Kinds of a Second Arrest
A defendant released on bail can be arrested a second time in three cases.
- The defendant can be arrested for ‘jumping bail’, i.e. failure to appear in court on hearing dates.
- The defendant can be arrested for violating other conditions of the bail.
- The defendant can also get arrested on a separate, unrelated charge by the same or another jurisdiction.
Violation of Bond Conditions Can Become a New Offense for the Defendant
When a defendant accused in court is granted bail, the court can impose certain conditions that must be met by the defendant. These conditions are generally designed to serve one of two purposes.
- To ensure the defendant comes to court regularly for their case hearings.
- Ensure the community is protected from additional possible crimes by the defendant.
Judges typically have a lot of leeway to decide what conditions are reasonable to achieve these purposes.
Some of the more common conditions require the defendants to adhere to the following.
- Obey all laws
- Refrain from drug and alcohol use and / or participate in drug testing
- Not possess or purchase any weapons
- Stay away from certain places or people
- Maintain or seek employment
- Follow a curfew or restriction on movement
- Comply with specific travel restrictions
As you can note, many of these conditions are not a crime for a regular citizen but can become a felony for a defendant. For example, buying a gun is perfectly legal for a regular citizen but a person set free on bail may be restricted from carrying a weapon.
Similarly breaking a restriction on communicating with certain persons, like a case witness or former spouse, can be seen as a separate crime committed by the defendant.
Arrests Made Due to Violation of Bail Condition
If a defendant gets arrested for violation of a condition of the bail, the judge has several options. These typically include:
- Releasing the person after giving them a warning
- Revoking bail and putting the defendant back in custody
- Imposing additional or more restrictive bail conditions
- Increasing the amount of the bail
- Holding the defendant in contempt of court
What action a judge takes depends on the circumstances. A minor violation might result in minimal consequences such as a warning. But if a defendant commits a more serious violation like threatening a witness, the judge is likely to take harsher measures like revoking bail altogether.
Complications of a Second Arrest
There are more complications that arise when a person is arrested for a second time on separate charges while out on a bond. They are still required to be present for any court dates on their first trial.
If arrested for another case, in a different county, there is a high chance that the arresting department will not deliver the defendant to the first court for their set court dates. If the defendant misses their dates for the first court, they can still face consequences and their bail may be cancelled.
The defendant should speak with their bail bondsman for the first arrest immediately to explain the situation and get their court dates rescheduled. This can work out well with both county courts if the bondsman is able to schedule dates with both court offices to ensure the defendant is present for hearings.
The Bond Process
Let’s look at how the bail process works. First, a bail bond company and a co-signer arrange and post bail for the defendant in court. The co-signer is a person who signs on behalf of the defendant. Both the co-signer and the bond company assume responsibility for ensuring that the defendant will be available for hearings in court. The number of times and frequency to appear in court depend on the nature of the crime that the defendant has been charged with.
If the defendant is arrested again and cannot show up for court dates, the court can decide to do one of the follow.
- Revoke the bail agreement
- Take the defendant into custody and refuse to grant bail in the future, depening on the case circumstances
- Increase the bail amount
If a defendant’s bail is revoked or the bond amount is increased, the original money paid by the defendant is seized by the court and gone forever.
Separate Arrests Require Separate Bonds
If a defendant is out on bond and they are arrested in a separate case, then they will be required to submit a new bond in trial court to get bail. Each bond is treated as its own and cannot be transferred from one offence to another.
You should note here that the bail bondsman has no way of getting notified about a second arrest unless they are contacted and informed by the defendant. The defendant will need to go through every step of setting up the bond again and provide the bonding fee to get a second bail. The first bond and money set aside for it does not impact the second bond.
Further Complications of a Second Arrest
There are several complications that can affect a defendant’s trial if they are arrested while out on a bond.
Crime Bail Crime Enhancement
In some cases, the prosecutor may decide to charge the defendant with an enhancement for a ‘crime bail crime’. This is a situation where the defendant who was out on bail committed a new felony. The prosecutor can bring it to the court’s notice that the defendant could not have carried out the second crime if they had been in custody.
This can be very serious because the court will consider the merits of the case. If it is decided that the crime was committed while the defendant was on bail, the courts can add two more years to any previous sentence. This enhancement is in addition to and separate from the sentencing that the defendant could get for the new felony charges.
Effects on Settlement Negotiations
When a defense lawyer has to deal with an additional arrest and felony charges for a client, you can be certain that their original case is severely compromised. Any ongoing negotiation settlement will be jeopardized. The second arrest and felony charge can be used by the prosecutor in court to present a stronger case and get a conviction.
If you get arrested a second time while out on bail, it can dissolve any settlement negotiations that your defense lawyer has made with the prosecutor. The prosecutor may demand to restart the whole settlement negotiations on their terms or end the plea bargain negotiations completely and opt to pursue a trial in court.
Another consequence of a second arrest on bail is that the court can decide to revoke the original bail and bring the defendant into custody. Generally, there are three factors that the courts take into consideration to revoke a bail.
- Was the second crime committed after the person had been granted bail by the court?
- What is the nature of the second crime?
- Is the person likely to commit further felonies if they are left free on bail?
The court will conduct a hearing where the defendant will be given an opportunity to explain the second arrest. If the court determines that there is a cause for revocation, the original bail will be cancelled and the defendant can be taken into custody.
Both the federal and state courts have their own procedures for bail revocation.
Bail Revocation in Federal Court
For a criminal case pending in federal court, the process is controlled through the Bail Reforms Act of 1984.
If a defendant released on bail from the federal court gets arrested for committing another crime, the court can make a presumption that the conditions of the release cannot keep the community safe. The defendant will be given an opportunity to counter this presumption in a hearing. It is up to the judge to decide whether they need to revoke the bail completely or impose new or additional conditions of release that ensure safety for the community.
Note here that the court can take up the matter when the defendant is accused and arrested for another crime. They do not need to wait for a conviction. However, the court will consider the nature of the crime before the bail is revoked.
Along with the bail revocation, the court can impose other penalties under for violating release conditions or failing to appear in court. These include forfeiture of original bond, fines and additional prison time that is added to the end of any other prison time received by the defendant.
Bail Revocation in State Courts
Bail revocation laws can vary from one state to another. However, all state laws allow the prosecution to press for revocation of bail if the defendant violates a condition of release, fails to appear in court or gets arrested for another crime while out on bail.
State laws also vary on the prosecutor’s burden of proof when arguing for a revocation of bail. Some states, like Vermont, require proof that meets the familiar ‘preponderance of the evidence’. In this situation the prosecutor must present evidence that establishes more than 50% that the defendant committed a crime; or evidence that is more credible and convincing than the evidence presented by the defense.
In other states, like Massachusetts, a less stringent “probable cause to arrest” test is employed. Probable cause to arrest holds when the facts support an objective belief that the person to be arrested has committed a crime. Probable cause can be established with less than 50% evidence to establish the prosecution’s claim.
If a defendant’s bail is revoked, the next step is to forfeit the bail bond. Any money or property that has been put up to secure the defendant’s release is turned over to the court. In most states, a procedure for bond forfeiture is set up by law. It is mandatory for the court to issue an order of forfeiture to the defendant.
Both the Federal law and all state laws allow for bond forfeiture in case a defendant fails to appear in court for a hearing. The courts can also authorize bond forfeiture for violating a release condition.
However, a second arrest in a separate charge does not necessarily lead to bond cancellation unless the prosecution moves the court to do so.
Bail bond forfeiture requires the court to send notices to the defendant and the surety. Both parties must be given a certain period of time to bring the defendant in court or explain the steps taken to locate the defendant.
A Second Arrest and Incarceration Is Not an Acceptable Excuse for Missing Court Hearings
Most laws give the defendant or bail bondsman an opportunity to explain the causes for the violation of bail conditions and avoid the possible forfeiture altogether. The reasons are known as mitigating factors and include a defendant’s illness, physical disability or death.
The acceptance of a defendant’s excuses for not showing up at court hearings depends on the facts and the jurisdiction. The court may grant leniency if it can be proved that the defendant could not have avoided their failure to appear in court due to circumstances beyond their control. However, courts generally reject excuses due to intoxication or drug use and have been skeptical of poorly substantiated claims of illness.
Being in jail in another location is NOT considered a legitimate mitigating factor. There are cases where the defendant was incarcerated in another jurisdiction but it was not recognized as a legitimate excuse for failing to be in court when required.