Miami Criminal Defense Attorney
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Miami Bail Bonds Attorney

Bail Bonds

Often, people are arrested in the early morning hours, when law enforcement agents storm their home. Many people are arrested by federal authorities on Friday afternoon, so that they remain incarcerated until Monday, when they appear in court before a United States Magistrate Judge. Agents also enjoy arresting people before holidays, so that they remain in jail until the next workday. They want the person arrested to feel the full impact of being in jail, knowing that most defendants will be released on bond soon after their arrest and after hiring an attorney. Then, the chances of an arrestee providing a confession or other incriminating statements drop drastically. There is a saying in law enforcement that “you can beat the rap, but you can’t beat the ride.” In other words, you may ultimately win the case, but you are going to go to jail and spend time there prior to being released. Most police and federal agents like that.

Bail / Posting Bond

If you are arrested, you will want to be released from custody as soon as possible on the lowest possible bond, and you will want to use the services of a reputable bail bondsman. A respected criminal defense lawyer specializing in federal criminal cases can recommend an honest, reliable bail bondsman.

In federal courts, bonds are typically posted by licensed bondsmen who work for insurance companies that promise to pay the full bond amount to the court if you fail to appear in court when you are required to do so. The typical charge for their services in federal cases is 15% as their “premium.” In Florida, bond premiums are 10% when a corporate surety bond is posted. In other words, if your bond is set at one hundred thousand dollars, you will need to pay fifteen thousand dollars to the bondsman, and often post collateral equal to the full amount of the bond. Using our example of one hundred thousand dollar corporate surety bond, in addition to the fifteen thousand dollar premium, you will usually be required to post assets (such a mortgage on your home or other real estate, jewelry, or other property) to collateralize your bond. That way, if you fail to appear for court when required to do so, the bonding company will move against your posted assets to recover the money that they will have had to pay to the court due to your non-appearance.

Once you are arrested, the first thing you should do is hire a respected and experienced criminal defense attorney to represent you. Your criminal defense attorney will coordinate all matters relating to bond with your family and friends so that the process goes quickly and efficiently and so you can be released at the earliest possible time.

It is a common mistake to call a bail bondsman before retaining a criminal defense attorney. Not all bondsmen are reputable, and you will be well-advised to discuss which bondsman should be called with your criminal defense attorney.

Eligibility for Bond

Many people believe that when you are charged with a federal crime, you are always eligible to be released on bail. But that is not the case. Section 3142 (f) of the Bail Reform Act specifically lists six types of cases for which a person charged can be held in custody without bail (the ability to post a bond and be released.) Those six cases are:

  1. Where the defendant is charged with a crime of violence.
  2. Where the maximum statutory penalty for the crime charged is life imprisonment or death.
  3. Where the defendant is charged with a Title 21 drug offense carrying a maximum penalty of 10 years or more.
  4. Where the defendant is charged with any felony and has two previous convictions for crimes described in the categories above.
  5. Where there is a serious risk of flight – in other words, that the defendant will flee jurisdiction.
  6. Where there is a serious risk that the defendant will obstruct justice or threaten, injure, or intimidate a prospective witness or juror.

Pre-Trial Detention

If a person is charged with a federal crime listed in the above paragraph or when the federal prosecutor alleges one of the risks set forth above, the right to post a bond may be denied. When the defendant appears in court for his or her initial appearance, the federal prosecutor (with the title of “Assistant United States Attorney” or “Trial Attorney with the United States Department of Justice”) will request pretrial detention. When that happens, the lack of fairness in the federal criminal justice system becomes immediately apparent. As a result of the prosecutor’s request, the court can continue the detention hearing (or bond hearing) for three days or for up to five days if the defendant requests a delay. Weekends and holidays are not counted, and the defendant (the person charged) remains in custody during the continuance, regardless of who requested the continuance.

The government may have spent months or years investigating someone. They then arrest the person and are guaranteed to keep that person in custody for at least three days and often five or six days, depending on their timing of the arrest. Even if a defendant is ready for and requests an immediate bond hearing at his or her first appearance in court (called an initial appearance), the government can keep the person in custody for at least three days simply by requesting pretrial detention.

THE DETENTION – OR BAIL – HEARING

At the detention hearing, the “burden of proof” is on the prosecutor to prove that the defendant is either a flight risk or a danger to another person or to the community. The prosecutor need only prove to the judge that there is a risk of flight or a danger in order to have the person further detained. The prosecutor does not need to prove risk of flight and a danger to another or to the community.

At the hearing, there are standards of proof which the judge must follow. (At initial appearances and at most federal bond hearings, the judges are almost always United States magistrate judges. Magistrates are judges appointed by the higher-ranking United States district judges, who are lifetime appointees.)

In order to detain a person, a judge must find that the government has proven that the defendant is a flight risk by a “preponderance of the evidence.” If the prosecutor is arguing that the defendant is dangerous, they must convince the judge by “clear and convincing evidence.”

The judge is mandated to follow the law and determine whether any “condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” Of course, different judges interpret the law and the facts differently. So, where one judge may order a person released on bond, another judge may order the defendant detained.

To further complicate matters, there is a rebuttable presumption favoring pretrial detention in certain cases. Your criminal defense lawyer will advise you.

The bottom line is this: retain an experienced federal criminal defense lawyer at the earliest stage of a federal criminal case. You want your criminal defense attorney by your side whenever you appear in court and always before you speak with law enforcement (should you and your lawyer decide to do so).

Keep in mind that although there is a theoretical presumption of innocence that we all enjoy, that presumption is theoretical only. The reality is that when someone is charged criminally in federal court, almost all of the federal court judges and magistrate judges believe that the person charged is guilty. In federal court, the deck is stacked in favor of the prosecution at every turn. That’s another reason that it is essential that you have a top-notch criminal defense attorney representing you. Your criminal defense lawyer’s reputation and experience can go a long way toward ensuring fairness for you and in making sure that the presumption of innocence governs every step of the proceedings.

In bond and detention hearings, there are many strategic and tactical matters that must be considered. Federal criminal court is not the place for real estate, bankruptcy, corporate or family lawyers. Representing people in federal criminal cases requires lawyers to have special knowledge, experience, skill and expertise in defending federal criminal cases. I have seen many times when well-meaning family lawyers appear on a defendant’s behalf at a bond hearing, only to handle the matter in ways that ultimately hurt the defendant’s chance to be released on bond or jeopardize the case in general.

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Jeffrey S. Weiner, P.A., Criminal Defense Attorneys, is located in Miami, Florida and serves the following communities: Alachua County, Gainesville, Orlando, Broward County, Fort Lauderdale, Hollywood, Pembroke Pines, Pompano Beach, Collier County, Naples, Hillsborough County, Tampa, Indian River County, Vero Beach, Lee County, Cape Coral, Fort Myers, North Fort Myers, Manatee County, Sarasota, Marion County, Ocala, Ocklawaha, Miami-Dade County, Hialeah, Homestead, Key Biscayne, Miami, Miami Beach, and North Miami Beach.
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