If someone is arrested, the most common procedure goes something like this: the court sets a bail amount, bail is paid, and the person is released while they await trial. The purpose of bail is to encourage the accused to return to court for their legal proceedings while giving them the freedom to prepare, be with their family, and continue their normal lifestyle while they wait. If the defendant appears in court, the bail money will be returned in full regardless of the outcome of the hearing. However, since the bail amount can be quite high, it's often recommended for the defendant to get a bail bond — a financial agreement between the defendant and a bail bondsman who agrees to pay the full bail amount, typically charging 10% plus additional fees. Once the defendant appears for their trial, the bail amount is returned to the bondsman, but if the defendant fails to appear, it creates numerous complications for both the defendant and the agency. This situation is known as bail forfeiture and carries serious consequences.
What is Bail Forfeiture?
Bail forfeiture is when a defendant fails to appear in court after being released on a bail agreement between them and a bail bond agency. A bail forfeiture order is issued by the court and means that any money or collateral put up as bail will be kept as a penalty. In addition to the penalty, the court will often issue a warrant for the defendant's arrest as well. In some cases there may be a grace period during which the defendant can still appear in court to prevent the forfeiture from being issued, but this is up to the individual jurisdiction's rules.
Consequences of Forfeiting Bail
The consequences of bail forfeiture can be significant to both the bail bond agency and the defendant. If the defendant fails to appear even during any grace period, they can expect the following. A bench warrant for their arrest will be issued, allowing law enforcement to arrest them anywhere. Any bail money or collateral offered will be lost — the court keeps the money (even if it was paid by a bail bond agency), and property may be seized if it was offered as collateral. Forfeiture will likely negatively affect the current case, potentially leading to a harsher sentence or less leniency in future proceedings. If a bail bond agent or cosigner posted bail on the defendant's behalf, they become responsible for the full bail amount, and to recover it the agency may resort to legal action or use bounty hunters. Finally, the defendant will likely face additional criminal charges for failing to appear, leading to further penalties, stricter bail conditions, and higher bail amounts if arrested again — and in some cases, a repeat offender may not be given the option to post bail.
Bail Forfeiture Hearings
It's important to note that the bail amount and any collateral aren't immediately lost if a defendant fails to appear in court for their hearing. A bail forfeiture hearing is a legal proceeding where a court determines whether the bail money or collateral should be confiscated as a result of a defendant failing to appear as per their terms of release. The hearing gives the defendant an opportunity to explain themselves and argue against the forfeiture, and where a bail bond agency or cosigner is involved, they can also be present to argue against it.
When Does a Bail Forfeiture Hearing Take Place?
A bail forfeiture hearing will take place at a later date once it is confirmed that the defendant has not appeared in court for their hearing. All involved parties, such as the defendant, their bail bond agency, and cosigners, will be notified ahead of time.
What Happens at a Bail Forfeiture Hearing?
During the hearing, the prosecution and defense will have opportunities to present evidence. The defense will attempt to present evidence explaining why the defendant could not appear, and the prosecution will argue against it. Once evidence has been presented, the court will make a decision. If the court decides the defendant had a valid reason for failing to appear, a forfeiture will not be issued and the bail could be reinstated; otherwise, the forfeiture will be issued and the involved parties will face the consequences.
What Are Valid Reasons for Failing To Appear at a Court Hearing?
Courts require compelling reasons and evidence to prove that a defendant could not appear. Examples include medical emergencies or hospitalization; the sudden loss of a loved one or family member around the time of the hearing, especially if it impacts the defendant's ability to attend court or carry out parental responsibilities; natural disasters and severe weather that physically prevent the defendant from appearing; being in custody in another jurisdiction at the time of the hearing through no fault of their own; transportation issues such as an unforeseen car breakdown or public transportation failure (though the defendant will likely need to prove they tried to find alternative means); and lack of notice if there was an administrative or communication error by the court or law enforcement.