Category: criminal procedure

Get Out of Jail

This post discusses how to get out of jail.

What is jail?

It is a temporary holding facility. In California, the county sheriff runs that jail and sheriff deputies work as jailers. However, some city police departments also have facilities to temporarily hold defendants.

Why am I in custody?

Inmates are in the custody of the county jail because:

  • they have a pending criminal case; and/or
  • they had an outstanding warrant; and/or
  • the judge sentenced them to county jail.

An inmate can be in custody for all three reasons.

Figuring out how to get out of jail depends on why the inmate is there.

Pending case

How long will I be in jail?

You could be there for months or even years while your case is pending. However, most people get out within a few days of their arrest. In fact, law enforcement is required to bring the inmate to court within 48 hours (not counting Sundays and holidays). (see Penal Code § 825.)

How do I get out of jail?

Bail

The jail sets the bail amount based on their bail schedule. The judge can modify the defendant’s bail amount. For some offenses, there is no bail. When the defendant has multiple charges, the amount of bail is equal to:

  • the highest bail for any of the charges; or
  • the total of all bail amounts added together.

Each county sets the bail amounts for various charges. You can find most “bail schedules” online. For an example, see the Santa Barbara County’s Bail Schedule.

OR release

OR stands for Own Recognizance. Most jails have a process for screening inmates for OR release. The defendant can also request OR release from the judge at their first court appearance.

Supervised release

The county probation department or the judge can place the defendant on supervised release. Supervised release means the inmate is out of custody, but still subject to specific restrictions on their behavior. While on supervised release, the inmate is also required to check in with the probation department. If the defendant violates the conditions of their supervised release, they can be remanded (sent back to jail).

Dismissal

If the judge dismisses all of the charges against the defendant, the jail will release the defendant from custody. If the jail does not release the defendant, the defendant can request release by filing a habeas corpus petition.

What is the fastest way to get out?

Bail, OR release, and supervised release are the fastest ways out of jail. Bail is usually the fastest. However, the bail process is complicated and can take longer than OR or supervised release.

Serving a sentence

How long will I be in jail?

You will be in jail for the amount of time on your sentence, or less. There a number of ways for an inmate to get out earlier.

Good time

Penal Code § 4019 reduces the inmate’s sentence by two days for every four days of custody if:

  • The inmate performed labor;
  • The inmate complied with the rules and regulations.
Program completion

Completing a program while in custody can reduce the overall sentence. Examples of programs include drug treatment and education.

Early release

Many jails are overcrowded and are under court order to reduce their inmate population. This means they often release inmates before they complete their sentence.

In jail on a warrant

How long will I be in jail?

Law enforcement must bring the inmate to court within 48 hours (not counting Sundays and holidays). If the warrant came from a different county than where defendant’s arrest occurred, law enforcement must immediately notify the county of the warrant of defendant’s arrest. The warranting county has 5 days to pick up the defendant.

I am not serving a sentence and do not have a pending case or a warrant. How do I get out?

Habeas corpus is a method of requesting release from custody. It commands an agency to bring the defendant to court to determine the lawfulness of their imprisonment, conditions of confinement, or other restraints on personal liberty.

Bench Warrant for Failing to Appear in Court

What is a bench warrant?

A bench warrant is a warrant to arrest a defendant for failing to appear in court when ordered. It instructs law enforcement to apprehend the defendant and bring them before the court.

Issuing the warrant

A judge or magistrate issues the warrant at the court hearing. The judge can issue a bench warrant for multiple reasons:

  • The judge previously ordered the defendant to appear in court at a specific time and place;
  • The defendant bailed out of jail and was ordered to appear in court at a specific time and place;
  • The defendant received OR release and promised to appear in court at a specific time and place;
  • The defendant received a citation and signed a promise to appear in court at a specific time and place;
  • The judge ordered the defendant to appear in court even though the defendant has a lawyer;
  • An information or indictment was filed in the superior court and the court fixed the date and place for the defendant to appear.

First court date

Most bench warrants result from the defendant’s failure to appear at their first court date. The first court date is also called the “arraignment.”

The defendant must appear in person at their first court date if:

  • One or more of the charges is a felony;
  • One or more of the charges involves domestic violence;
  • One or more of the charges involves driving under the influence AND the judge orders the defendant to appear.

In all other cases, an attorney can appear on behalf of the defendant if the court allows. (see Penal Code § 977.)

Some courts allow a defendant to appear remotely at their court appearance. To find out if you can appear remotely, contact the criminal clerk at the court.

What are the consequences of a bench warrant?

A bench warrant directs law enforcement to bring the defendant to court. Law enforcement can serve the warrant in any county in California. The bench warrant operates identical to an arrest warrant.

Do I have a bench warrant?

You can contact the criminal clerk at the court to find out. The clerk can look up your case using your name and date of birth.

How do I get rid of a bench warrant?

Either the defendant or their attorney must appear in court. At that time, the judge will recall the warrant.

Arraignment in a Criminal Case

What is arraignment?

An arraignment is a court hearing at which the court informs an individual accused of a public offense of the charges. The court also provides the individual with a copy of the accusatory pleading (an information or complaint).

When is arraignment?

Arraignment is the first court date in a criminal case. However, with felony charges, the defendant is also arraigned after a preliminary hearing (if defendant is “held to answer”).

An arraignment must take place no more than 2 calendar days after arrest if the defendant is in custody (Penal Code § 825). Sundays and holidays are not counted. If the defendant is out of custody, the prosecutor has 25 days to file a complaint. There is no deadline for arraignment when the defendant is out of custody (other than the statute of limitations).

Failure to comply with arraignment deadlines

If the prosecutor fails to comply with the deadlines, it does not necessarily mean the case will be dismissed. If, on the other hand, the delay prejudices the defendant, the judge could dismiss the case.

The judge can also dismiss a criminal case if the prosecutor fails to prosecute the case in a timely manner. Further, the prosecutor must comply with the statute of limitations – the deadline for bringing criminal charges (see Penal Code §§ 799-805). Failure to comply with the statute of limitations is grounds for dismissal of a criminal case.

How do I find my arraignment date?

The arraignment date will be on the citation from law enforcement. If law enforcement did not issue a citation, the date can be found on the bail or OR release paperwork.

What else happens?

Many other important events occur at the arraignment, including:

Appearance by defendant

The defendant is required to be present at the arraignment if charged with a felony or domestic violence charges.

Failure to appear at arraignment

If the defendant fails to appear, the judge can issue a bench warrant for the defendant’s arrest.

Advisement of Rights

If the defendant does not have an attorney, the court will advise the defendant of their constitutional rights. These include the right to an attorney, the right to a speedy jury trial, the right to present witnesses and evidence, the right to cross-examine witnesses, and the privilege against self-incrimination.

Plea

At arraignment, the defendant enters a plea. There are 6 types of pleas in California (see Penal Code § 1016). They are:

  • Guilty
  • No contest
  • Not Guilty
  • Previous conviction or acquittal of charges
  • Insanity
  • Double jeopardy

Demurrer

Demurrers are used to challenge defects that appear on the face of the accusatory pleading. The defendant may demur to a pleading instead of entering a plea if one of the grounds under Penal Code § 1004 exist.

  • Grand jury lacked legal authority;
  • Court lacks jurisdiction;
  • Pleading does not conform to Penal Code §§ 950 and 952;
  • Multiple offenses are charged and they do not meet the requirements of Penal Code § 954;
  • The facts in the pleading do not constitute a public offense;
  • That the facts in the pleading make a legal justification or excuse, or otherwise bars prosecution.

True Name

The defendant has the opportunity to provide their true name at arraignment. However, the defendant is not required to provide their true name (Penal Code § 989).

Protective order

The court can issue an order to protect the victim or witnesses. This happens in most domestic violence cases. The protective order can prohibit all contact between the defendant and the victim. Or, it can allow for peaceful contact. The court can also issue an order to prevent the police reports from being disclosed to anyone.

Bail

The court must set bail at the defendant’s first court appearance (if the offense is bailable).

Conditions of release

The court can set conditions of release for both in-custody and out-of-custody defendants. The conditions must necessary to ensure the safety of the public or to guarantee that the defendant appears in court.

Diversion

The defendant or their attorney can request diversion, if any diversion programs are available.