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Bail Hold - Penal Code Section 1275.1

In many cases, especially during instances where drug-trafficking, financial crime families are involved, defendants will have holds placed on their release due to the fact that someone in the system feels that illegal monies are being used to release that person from jail. In any such occurrence where trafficking and financial crimes are involved, the activities themselves can generate large sums of untracked money (stolen or hidden) to be used in case of emergencies. California law deals with this situation in Penal Code Section 1275.1.

Penal Code Section 1275.1 allows law enforcement to set conditions on your bail, though only if they can present probably cause to believe that the bail money (or the security for the bond) has been illegally obtained. The police, the prosecutor and/or the court can place this type of hold on a defendant's release, but again, only if they have reason to believe that any bail money in the case came from ill-gotten gains and procedures. For the source of the hold (from police or the prosecutor), a declaration must be filed under the penalty of perjury, setting forth probable cause to believe that the source of bail monies has been feloniously obtained.

If this happens in your case, the “burden of proof” shifts to you to prove by a “preponderance of the evidence” that no part of the monies or security was obtained foolishly (i.e. illegally). This means that your attorney will have to bring a motion to prove that the bail monies/securities are proper. For example, in San Diego, if you are battling this issue right from the day of your arraignment, it would be filed and heard in the felony arraignment department. However, if you are dealing with such an issue later on in the case (such as after your preliminary hearing), it would be filed in the supervising criminal department and your hearing would be assigned to a different court.

Because there are serious consequences to losing this motion, your attorney will most definitely have to present with as much evidence as possible. Typically, a written motion outlining your proof and documentary evidence works best. This gives the judge an opportunity to read the motion and understand your position without any added pressures (such as time constraints). Courts are much more comfortable on major issues if they already have an advance understanding as to why they should rule in your favor, as judges can be quite uncomfortable making such significant rulings when forced to do so quickly. This is especially true if the decision means letting a person out on bail when he or she is facing significant time and might have a desire to flee.

If you have legitimate sources of funds and security in regards to your bail, you should be able to prove it. Cash is the least impressive commodity for a court to evaluate. Even if the cash can be proven to be totally legitimate, it is still difficult to determine whether the cash came from a legitimate or illegitimate source. Cash is a “red flag” for the courts, as it signals a high probability that the money is illegal.

Your lawyer should be prepared to show a paper trail proving that any money posted is legitimate. For instance, if your cousin wants to help post the bail cash fee by showing that he had sold some stock and transferred it to the bail agent by money wire, you should be prepared to show that he earns a legitimate income and that the stock he sold was held for a substantial period of time.

Keep a close eye out for any evidence that ends up being a sham. Judges and prosecutors are certainly not stupid and both are very capable of cross-examining your bail witness. Be careful if you have someone take the stand to say he has "kept $25,000 buried in the backyard for years because he does not trust banks." If a judge determines that a defendant has willfully misled the court, bail may be increased. Your presentation, if at all a sham, may give the prosecutor clues to your illegal activities and provide them leads to make further charges against you and/or those associated with you.