Criminal Law

A Defendant's Release on Bail with Conditions

By John McCurley, Attorney
Rules that criminal defendants must abide by while out of custody on bail or their “own recognizance” (OR).

A person who’s arrested and thrown in jail generally has the right release on bail. Usually, bailing out involves paying the bail amount (or contracting with a bail bondsman to post bail) or putting up real property as collateral. (Read more about options for posting bail.) Alternatively, a judge can order release from jail without requiring bail, based on the defendant’s promise to come back for court. When a judge does this, it’s called release on one’s “own recognizance” (OR).

With both forms of release—bail and OR—judges can, and often do, impose conditions that the defendant must follow while the court case is pending. Bail laws and procedures differ by jurisdiction, but here’s generally how it works with bail conditions.

Bail Conditions

Bail conditions are normally designed to serve one of two purposes: to ensure the defendant comes to court or protection of the community. Judges typically have lots of leeway in deciding what conditions are reasonably necessary to accomplish these purposes.

Typical Conditions

The bail conditions that a judge imposes will ordinarily depend on the facts of the case. But some of the more common conditions require defendants to:

  • obey all laws
  • refrain from drug and alcohol use and/or participate in testing
  • not possess any weapons
  • stay away from certain places or people
  • maintain or seek employment
  • follow a curfew, and
  • comply with specific travel restrictions.

In deciding which conditions are appropriate, a judge will normally consider a variety of factors. These factors might include:

  • the defendant’s criminal history
  • the defendant’s physical and mental condition
  • seriousness and nature of the crime the defendant is accused of committing
  • likelihood that the defendant will flee the jurisdiction, and
  • whether the defendant has a history of substance abuse.

For instance, if a defendant was arrested for drunk driving and has a history of getting into alcohol-related trouble, a judge might condition release on the defendant installing an ignition interlock device (IID) or participating in “continuous alcohol monitoring.” And in a case where a defendant is accused of assaulting someone, the judge will likely require the defendant to stay away from the victim while out on bail.

(Find out about “bail hearings,” where judges make bail decisions, including what conditions to impose.)

Invalid Conditions

The law generally leaves it up to judges to decide which bail conditions are reasonable. But there are limits—bail conditions that unreasonably interfere with a defendant’s constitutional rights are invalid.

Example: David was busted for a DUI. As a condition of OR release, the judge required David to consent to police searching his home at any time. The condition is likely invalid. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. The search condition doesn’t relate to ensuring David comes to court. And there’s no reason to think that requiring David to waive his Fourth Amendment rights is reasonably necessary for protection of the public.

What Happens If You Violate a Condition of Bail?

Judges normally have several options when a defendant violates a condition of bail. These typically include:

What a judge is apt to do, just depends on the circumstances. A minor violation might result in minimal consequences such as a warning. But if a defendant commits a more serious violation like threatening a witness, the judge is likely to take harsher measures like revoking bail altogether. (Read about when a court is justified in denying bail because of a defendant’s dangerousness.)

Questions for a Lawyer

  • Do I have the right to appeal if I disagree with the conditions of bail?
  • What happens if I violate a condition of release that turns out to be invalid?
  • Do judges ever release defendants from jail without conditions?
  • What if a condition of bail interferes with my work or school?
  • What if I can’t afford to pay for an IID or some other bail condition?

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