Bail Bonds on State of Tennessee Charges – A Lawyer Helps
Call a lawyer immediately. The lawyer may be able to convince a magistrate judge to set a lower bond. The lawyer does this by telling the magistrate about the accused’s extensive ties to the community. For example, the lawyer will describe to magistrate, family, friends, employment, home ownership, etc., to show that the defendant will show up for court. Magistrates tend to think that if someone already has a lawyer they are a good bet to show up in court. After all, a bail bond is nothing more than an appearance bond. Showing up for court is the whole point.
Probation violation warrant are often “open court” bonds. That means there is no bond set and the magistrate will be powerless to set a bond. If you are in the Nashville area a lawyer may be able to get a bond set so you do not have to spend the night in jail.
Corporate Surety Bonds:
The premium fee for your bond should not be more than ten percent (10%) of the face amount of your bond. For example, if your bond is $2,500, the premium on the bond should not be more than $250. In addition to this amount, the law also permits a one-time $25 initiation fee, (T.C.A., § 40-11-316).
The bondsman may insist on collateral in addition to the ten percent (10%) premium fee. If the bondsman accepts collateral, the bondsman must give you a written receipt for the collateral, and the receipt shall give in detail a full description of the collateral received and the terms of redemption as required by T.C.A., § 40-11-126(a)(8).
In Nashville, Davidson County, the courts require a “source hearing” if the bond if $75,000 or greater. At that hearing the defendant, or his family usually, must prove in open court that the source of such bond or premium is from a legitimate source.
A bondsman may not lock you back up or surrender you arbitrarily or without good cause. Good cause may include your failure to perform your obligations under the contract you have with the bondsman. (T.C.A. § 40-11-126(a)(7) & § 40-11-132).
However, a May 26, 2013 amendment to T.C.A. § 40-11-138(b) provides that a bonding company can be released from its obligation upon disposition including any conviction or guilty plea. Never mind that this amendment clearly impairs contracts and violates Article 1, Section 20 of the Tennessee Constitution. The trial court judges, in their supervisory capacity, have responded to this nonsense by requiring bonding companies to either file a waiver of this amendment or to notify defendants and co-signers that their contract is impaired. In short, make sure your bonding company has filed the waiver!
Your attorney may also assist you in making a bond with real estate or other property.
A bail bond may also be secured by:
(1) Real estate situated in Tennessee that is worth one and one-half (1½) times the amount of bail set. If the bail bond is secured by real estate, the defendant or the defendant’s surety must execute a deed of trust conveying the real estate in trust to the clerk who shall immediately file the deed of trust in the office of the register of the county in which the real estate is situated. The costs of preparation of the deed of trust and recordation shall be paid by the defendant;
(2) A written undertaking signed by the defendant and at least two (2) sufficient sureties, and approved by the magistrate or officer. Such sureties may not be professional bondsmen or attorneys; or
(3) A solvent corporate surety or sureties or a professional bail bondsman as approved, qualified or regulated by §§ 40-11-101 40-11-144 and part 3 of this chapter. No bond shall be approved unless the surety on the bond appears to be qualified.
Bail Bonds on Federal Charges
The Fed system is entirely different.
Money does not change hands. Rather than bonding out the defendant is released on their own recognizance or on what is called “pretrial release.” Defendants released on Pretrial release are monitored by the United States Probation Office and must comply with various requirements. (See 18 USC 3142).
The general rule is a defendant shall be released on his own recognizance or on pretrial release unless the defendant presents a serious flight risk or is a danger to the community.
If the Government wants a person locked up pending trial it must request “detention” when the defendant first appears before the magistrate judge.” The statute, 18 U.S.C. § 3142(f), enumerates grounds but they center around the risk of flight and danger to the community.
If Government asks for detention the defendant is jailed until the hearing. The detention hearing may be delayed for 10 days if:
- Defendant is already on bail for a felony charge or
- On parole or probation; or
- Is an undocumented immigrant and poses a flight risk or danger to community
Criminal defense want to schedule the hearing as soon as they can marshal their witnesses. Otherwise the Government can get a quick indictment from the Grand Jury. Grand juries make probable cause findings. If probable cause is not at issue at the detention hearing the defense attorney will lose a chance to find out about the Government’s evidence.
At the detention hearing, the defendant may testify, present information, present witnesses, cross-examine witnesses. Evidence can be presented by can present by proffer or through hearsay. The rules of evidence do not apply.
The magistrate judge orders detention if he finds that the defendant is a likely flight risk or if there is clear and convincing evidence that the defendant is a danger to community by clear and convincing evidence.
In certain cases there is a rebuttable presumption that defendant shall be detained. Most notably, these cases include situations where there is probable cause that the defendant has committed a drug offense with a penalty of ten years or more.
The Magistrate Must Consider:
- Nature of offense including whether it involves violence or narcotics.
- Weight of evidence
- History of defendant
- Defendant’s Mental and physical health
- Family ties
- Criminal history
- Record of appearances
- Probation, parole, state prison status
- Nature of danger posed to community if defendant is released
- Amount of time before trial commences
- Whether defendant can adequately prepare his defense in lockup
If the magistrate determines that release on personal recognizance or on unsecured appearance bond (in a dollar amount) will not assure the defendant’s appearance at court, the magistrate must consider alternatives.
That usually means Pretrial Release which is supervised by United States Probation Office. As conditions of release, the defendant may be ordered to:
- Maintain employment.
- Stay in school.
- Not associate with others.
- Not contact victim/witnesses.
- Abide by curfew.
- Not possess firearms.
- Not use alcohol/drugs.
- Participate in drug treatment program.
- Submit to GPS or electronic home monitoring.
- Have a Third Party Custodian who monitors the defendant’s conduct and has a responsibility to report to the Court.
If the magistrate finds that no combination of these alternatives will assure the defendant’s appearance at court, he must order the defendant into the United States Marshal’s custody until the trial. That is, the defendant is locked up.
Call Kenneth Quillen if you have questions: 615-810-8159