Whether to Post Bail After a California DUI Accident Arrest

Attorney Answer

Before you pay $12,500, ask the court to reconsider the number. Under California law he cannot be kept in custody simply because he cannot afford the scheduled amount — and a bail bond premium you pay today is not refunded if a judge lowers bail tomorrow.

That $12,500 is almost certainly a bail schedule figure, set in advance by county-wide schedule, before any judge looked at his case. Cal. Penal Code § 1275 lists what a court must actually consider in setting, reducing or denying bail: public safety, the seriousness of the offense charged, his prior criminal record, and the probability that he will appear.

In re Humphrey, 11 Cal. 5th 135, 482 P.3d 1008, 276 Cal. Rptr. 3d 232 (2021), added the piece that matters to you. The California Supreme Court held that conditioning freedom solely on whether an arrestee can afford bail is unconstitutional. Where a financial condition is necessary at all, the court must consider his ability to pay the stated amount and may not effectively detain him solely because he lacked the resources to post it, and it must consider whether nonmonetary conditions — electronic monitoring, check-ins, community housing, treatment — would reasonably assure his appearance and public safety. Detention without a financial condition requires a clear-and-convincing finding that no less restrictive condition would do.

So the real choice is not "pay or leave him there." It is whether to pay the schedule figure now or ask a judge, at the first court appearance, for a reduction or for release on nonmonetary conditions.

What you can do

1. Call the jail and the court and find out when his first appearance is. If it is within a day or two, that is a judge who can reconsider the amount. 2. Ask the jail whether there is any hold on him — probation, another warrant, an immigration detainer. If there is, posting bail may not release him at all, and the money is spent either way. 3. If he cannot afford it, make sure the public defender is appointed and knows to make a Humphrey argument about his actual ability to pay. 4. Collect what supports that argument now: pay stubs, rent, dependents, length of time in the community, employment, any treatment enrollment. 5. Read whatever paperwork he was given about his license. A DUI arrest starts a separate DMV process with its own deadline to request a hearing, that deadline is measured in days, and it runs whether or not he is out of custody.