Bail - Frequently Asked Questions

Bail is defined in Louisiana law as “the security given by a person to assure a defendant’s appearance before the proper court whenever required.” La. C.Cr.P. Art. 311(1). Louisiana law also holds that a person is entitled to bail before conviction. La. C.Cr.P. Art. 312(A). (There are some exceptions, which you will be unsurprised to hear if you follow this blog, at all.)

In setting bail, the court must consider 10 factors:

• The seriousness of the offense with which the defendant is charged;

• The weight of the evidence against the defendant;

• The previous criminal record of the defendant;

• The ability of the defendant to post bail;

• The nature and seriousness of the danger to any other person and/or the community posed by the release of the defendant;

• The defendant’s voluntary participation in a pretrial drug testing program;

• The absence or presence of controlled dangerous substances in defendant’s system at the time of his arrest;

• Whether or not the defendant is on bond for a previous offense at the time of his arrest;

• Any other circumstances which affect bail; and

• The type or form of bail.

  La. C.Cr.P. Art. 316.

Under specific circumstances, the court must consider additional factors and may restrict the defendants activities while out on bail:

Under Article 313, a defendant arrested for domestic abuse battery, violation of a protective order, stalking, or any felony offense involving the use or threatened use of force or the use of a deadly weapon on the defendant’s family member, household member, or dating partner. (Family member, household member, and dating partner are specifically defined terms elsewhere in the criminal code.) In this case, the court may order a defendant held for five days after the determination of probable cause has been made in his case (which must be done within 72 hours of his arrest, if he is arrested without a warrant, or which has been done at the time of his arrest if he is arrested pursuant to a warrant). Weekends and legal holidays are not counted in this five-day window. The court must consider the Article 316 factors, but must also consider: (1) the defendant’s criminal history; (2) the potential threat or danger the defendant poses to the victim, the victim’s family, or any member of the public (especially children) if released; and (3) whether the defendant has a documented history or records of (a) substance abuse, (b) threats of suicide, (c) use of force or threats of force against anyone, (d) whether there is a history of strangulation, forced sex, or controlling the victim’s behavior by the defendant, and (e) whether the defendant has made threats to kill. After considering these factors and those listed in Article 316, the court may deny the defendant bail outright if she finds upon clear and convincing evidence that the defendant poses a risk of flight or imminent danger to any other person and/or the community. If she sets bail, she can also require the defendant to submit to electronic monitoring and/or house arrest and a curfew.

In cases in which a defendant is charged with a sex offense or has previously been convicted of a sex offense, the court may hold the same hearing within five days of the probable cause determination, and may deny bail or set additional restrictions.

If you or someone you know has been arrested and is awaiting the setting of bail, contact our office for a consultation at (318) 459-9111.