So you’ve been arrested. Or maybe your family member or loved one has. It’s a scary thing to be taken into custody. One of the most commonly asked questions of a criminal defense lawyer in Las Vegas is how to get out of custody after arrest.
The most common way to get out of custody after an arrest is by posting a bail or bond. The purpose of bail is to ensure that the person posting the bail will return to Court.
In ALMOST every case, a person charged with a crime is entitled to a bail and is able to post a bond. This is a right that is carved out in our Nevada Constitution. Article 1, Section 7 of the Nevada Constitution provides that “all persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great.”
I say in ALMOST every case because there are a few exceptions to a person’s entitlement to bail. For instance, Nevada Revised Statute (“NRS”) 178.484 deals with a person’s right to bail before a conviction, as well as the exceptions to that right. It states that “a person arrested for an offense other than murder of the first degree must be admitted to bail.” However, according to NRS 178.484(2), a person who is arrested for a NEW felony while on probation or parole for a different offense must not be admitted to bail unless certain requirements are met. Additionally, NRS 178.484(4) addresses when a person is arrested for First Degree Murder by saying “a person arrested for murder of the first degree may be admitted to bail unless the proof is evident or the presumption great by any competent court or magistrate authorized by law to do so in the exercise of discretion, giving due weight to the evidence and to the nature and circumstances of the offense.” Finally, when a person fails to show up to Court, and a Bench Warrant has issued, that person can be held without bail pending the resolution of the case.
In the vast majority of cases that don’t fall into the categories described above, the Nevada Legislature has told the Court what factors to consider when setting bail. NRS 178.498 tells the Court that if a Defendant who has been charged with a crime is given bail, the bail must be set at an amount which in the judgment of the judge making the decision “will reasonably ensure the appearance of the defendant and the safety of other persons and of the community” taking into considerations such as “the nature and circumstances of the offense charged,” “the financial ability of the defendant to give bail,” “the character of the defendant” and “the factors listed in NRS 178.4853.”
NRS 178.4853 gives the Court (i.e. the judge) a list of factors to consider when releasing someone on an “OR” or “own recognizance” release. The Court also considers these same factors when setting bail. These items include the following:
1. The length of residence in the community;
2. The status and history of employment;
3. Relationships with spouse and children, parents or other members of his family and with close friends;
4. Reputation, character and mental condition;
5. Prior criminal record, including, without limitation, any record of appearing or failing to appear after release on bail or without bail;
6. The identity of responsible members of the community who would vouch for the reliability of the person;
7. The nature of the offense charged, the apparent probability of conviction and the likely sentence, insofar as these factors relate to the risk of not appearing;
8. The nature and seriousness of the danger to the alleged victim, any other person or the community that would be posed by the person’s release;
9. The likelihood of more criminal activity after release; and
10. Any other factors concerning ties to the community or bearing on the risk of willfully failing to appear.
In future posts to this Blog, we will discuss Standard Bail Schedules in Las Vegas, as well as how to best seek, and obtain, a lower bail from the Court.