From the Desk of Sheriff Bobby J. Guidroz
‘Did You Know’ DATE: March 29, 2022
ARREST AND JUDICIAL PROCEEDINGS PART II OF III
Last week you were arrested, booked and brought before the judge for a magistrate hearing. You confirmed all of your personal information and now it is time for the judge to read the charges that are being brought against you and set bail within the parameters of the law.
The Eighth Amendment of the US Constitution protects your rights and states that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Louisiana Constitution Article 1, Section 18, Paragraph A also protects your rights regarding bail. It states that excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great.
Before the judge sets the bail amounts for each charge, the following factors are considered as set forth in Article 316 of the Louisiana Code of Criminal Procedures:
- The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance;
- The weight of the evidence against the accused;
- The previous criminal record of the accused;
- The ability of the accused to give bail;
- The nature and seriousness of the danger to any other person or the community that would be posed by the accused’s release;
- The accused’s voluntary participation in a pretrial drug testing program;
- The absence or presence in the accused of any controlled dangerous substance;
- Whether the accused is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing;
- Any other circumstances affecting the probability of accused’s appearance; and
- The type or form of bail.
According to Article 315 Paragraph A of the Louisiana Code of Criminal Procedures, the amount of bail shall be specifically fixed in each case. In noncapital felony cases, a bail schedule according to the offense charged may be fixed by a district court. In misdemeanor cases, a bail schedule according to the offense charged may be fixed by a district, parish or city court for offenses committed within its trial jurisdiction. When more than one court has trial jurisdiction, the applicable bail schedule shall be that of the court in which the case is to be tried.
However, there are exceptions which lead to further proceedings before bond can be granted by the judge.
A contradictory bail hearing, legally referred to as “Gwen’s Law” may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the accused’s family member, upon the accused’s household member, or upon the accused’s dating partner. The hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays, and the court shall determine the conditions of bail or whether the accused should be held without bail pending trial.
In determining whether the accused should be admitted to bail pending trial, or in determining the conditions of bail, the judge shall consider the following:
- The criminal history of the accused.
- The potential threat or danger the accused poses to the victim, the family of the victim, or to any member of the public, especially children.
- Documented history or records of any of the following: substance abuse by the accused; threats of suicide by the accused; the accused’s use of force or threats of use of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the accused; or threats to kill.
Based upon the judge’s review of the factors, the judge may order that the accused not be admitted to bail, upon proof by clear and convincing evidence either that the accused might flee, or that the accused poses an imminent danger to any other person or the community.
The above information is intended for information purposes only and not for legal advice. For legal advice, consult an attorney. Questions can be submitted to bguidroz@slpsheriff.com
