One of the most common questions which arrestees and their family members ask our team of criminal defense professionals is whether the arrestee may be able to be “O.R.'ed,” which is commonly-used shorthand for being released on their own recognizance, which is a cruical part of the criminal case process.
An own recognizance release allows the defendant in a criminal case to fight a criminal charge in California state court from outside of custody without the necessity of posting a costly cash bail bond. Getting released on your own recognizance, or OR, means you don't have to post bail or a bond in order to be released from custody following an arrest. However, getting released without bail is not available to everyone.
Anyone who has been charged with a minor crime or non-violent misdemeanor are frequently released OR, while felony charges will normally require bail. Judges have the discretion to either set a bail or allow a defendant to be released with no bail with a promise to return to court and make all future court appearances.
The judge's discretion exists even when the county bail schedule lists a bail amount for the offense for which the defendant was arrested. If you are released from custody at the jail or court, you will typically be required to sign a promise to appear before being released OR. The agreement will state what you are expected to do and what will happen if you fail to appear in court.
It should be noted that this process is set to change with the passage of Senate Bill 10, which will remove the cash system and replace it with greater discretion by judges in granting release at detention hearings.
In order to give readers more useful information about getting released own recognizance, our California criminal defense lawyers are providing a review below.
Release from Custody for Misdemeanor Offenses
An own recognizance release can come about in a number of ways. For instance, in relatively minor misdemeanor offenses, such as a first time driving under the influence arrest with no injuries and no traffic collision.
The arresting officer (or more likely their supervisor such as a sergeant) can simply exercise discretion by releasing the arrestee on their own recognizance. In these cases, the citation issued to the arrestee will often state “O.R. approved by X.”
Outside of this set of very minor, but still arrestable, offenses in which law enforcement may grant an own recognizance release on their own volition, own recognizance status must usually be granted by a judge.
Factors Considered by Judge for OR Release
As stated, judges have discretion in setting bail or allowing a defendant to be released with no bail with a promise to return to court. In order to decide whether to release a defendant on their own recognizance, the court will usually consider the following:
- Type of crime;
- Whether it's a first offense;
- Whether a victim was injured or threatened;
- Risk to public safety or flight risk;
- Length of time living in the community;
- Financial ability to post bail;
- Outstanding warrants and criminal record;
- Arguments from attorney and prosecutor.
If defendant's lawyer requests a lower bail or to get released OR, the court could appoint a bail officer to conduct a background check to review these factors.
Arraignment in Court While in Custody
In the typical case, a defendant arrives at their first appearance before a judge for arraignment while in custody. For whatever reason, the defendant has not posted cash bail in the amount set by the bail schedule and therefore remains confined.
At this first appearance, the parties have an opportunity to advocate for bail. The prosecution may advocate to keep bail as set by the schedule or to deviate by increasing it if the prosecution can identify factors related to the defendant which suggest either a risk of flight or danger to the community.
On the other hand, defense counsel has an opportunity to advocate for an own recognizance release. It is critical to secure defense representation prior to the case being brought to court to prepare a formal bail position.
Through a motion for own recognizance release, the defense can present mitigating factors related to the defendant's background, history, and reputation in the community which may persuade the judge to allow an O.R. release.
While the judge is bound to assume the truth of the charges against the defendant when considering bail, the defense can also raise issues of proof in the case against the defendant in a bail motion to highlight the lack of risk to the community posed by the defendant.
Arraignment While Out of Custody
In other cases, a defendant might be out of custody when charges are formally filed. This can occur either because the defendant was initially arrested, but posted cash bail prior to the filing of charges, or because charges were filed without an arrest ever having been made.
This is frequently the case even in serious felony matters if the charges took a long period of time to evaluate, such as in white collar cases involving voluminous documents or in possessory crimes such as child pornography offenses. In these cases, the defendant has not posted bail by the time they arrive in court for arraignment.
Through negotiation with the prosecuting agency, it is often possible to arrive at a stipulation for an own recognizance release, especially for defendants with no records who are represented by counsel and are turning themselves in voluntarily following the filing of charges.
Own recognizance release is often accompanied by conditions which are designed to protect the public and reduce the risk of the defendant fleeing. These typically include home confinement with electronic monitoring.
In cases involving alcohol-related offenses such as driving under the influence or public intoxication, a common term of own recognizance release is the attendance of alcoholics anonymous meetings on a regular basis.
Violating Terms of OR Release
Own recognizance release is ultimately a discretionary benefit granted by a judge overseeing a criminal case. Where the defendant violates the terms of O.R. by failing to comply with affirmative conditions set by the judge, or certainly in the case of a new arrest, own recognizance status may be terminated and the requirement to post cash bail may be reimposed.
If a defendant fails to fail to appear in court, then the judge will issue a bench warrant for their arrest. If the judge imposed conditions for releasing defendant own recognizance and they were violated, such as failing to attend rehabilitation classes or making contact with the victim, the court could issue a bench warrant for their arrest.
If the underlying charge was a misdemeanor and the defendant failed to appear or violated a condition of release, the penalties include up to one year in county jail and a fine up to $1,000.
If you, or someone you know, has been arrested or has already been charged with a criminal offense in California state court, contact our experienced team of Los Angeles criminal defense attorneys to discuss the possibility of achieving an own recognizance release. This benefit can help avoid the need to post a costly cash bail bond and, more importantly, allow the defendant to fight the criminal charges against them from outside a custodial setting.
Eisner Gorin LLP is a top-rated criminal defense law firm located at 1875 Century Park E #705, Los Angeles, CA 90067. Contact us for a consultation at (310) 328-3776.