Criminal Law Article

Bail Bonds

The subject of this article is bail bonds. To learn more about when and how judges set bail, please see the “Bail” article on this website.

What is a bond?

A bond is a promise to pay to the court a specific amount of money if a criminal defendant violates any of the conditions of the defendant’s release from jail or prison before or during their trial. The most common such violation is the defendant’s failure to “appear” (show up) for a required court hearing.

If a judge releases a criminal defendant from jail or prison “on their own recognizance,” it means that the criminal defendant will not be required to post a bond.

See Arizona Rules of Criminal Procedure, Rule 7.1 (“Definitions”): https://govt.westlaw.com/azrules/Document/N99452610ECCF11E6A2F79E2190D0C3D3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

What is a bail bond?

Arizona law defines a bail bond as “any contract that is executed by a surety insurer for the release of a person who is arrested or confined for any actual or alleged violation of any federal, state or, local criminal law where the released person’s attendance in court when required by law and obedience to orders and judgment of any court is guaranteed.” (A “surety insurer” is an insurance company.)

See A.R.S. § 20-340(1): https://www.azleg.gov/ars/20/00340.htm

Why do people pay for bail bonds?

If a judge determines that a criminal defendant must post a bond to the court to secure the defendant’s release from jail or prison before and during their trial, but the defendant cannot pay the required amount in cash or other property themselves, then the defendant may want to find somebody else to post the bond on the defendant’s behalf.

Sometimes the defendant is able to turn to their family or friends for assistance in posting the bond. But if the amount is too high, or their family or friends are unable to help, then the defendant may wish to pay for the services of a bail bondsman.

What is a bail bondsman?

Arizona law defines a bail bondsman (or “bail bond agent”) as any individual who is “appointed by an insurer through a power of attorney to execute or countersign bail bonds in connection with judicial proceedings and who receives or is promised monies or other things of value for that service.”

See A.R.S. § 20-340(2): https://www.azleg.gov/ars/20/00340.htm

A bail bondsman is an agent of a surety insurer. The bail bondsman basically acts as a middle-man between the person who purchases a bail bond on the criminal defendant’s behalf and the insurance company that will be asked to pay the cash value of that bail bond to the court if the defendant “skips” or “jumps” bail by violating the conditions of their release.

Under Arizona law, if the defendant has been charged with a crime for which bail is permitted (a “bailable offense”), then the local sheriff or the keeper of the jail must provide the defendant with a list containing the names and telephone numbers of the licensed bail bondsmen in the county. But they cannot recommend a particular person or company.

See A.R.S. § 13-3969: https://www.azleg.gov/ars/13/03969.htm

What rate may a bail bondsman charge?

Under Title 20, Chapter 6 of the Arizona Administrative Code, a bail bondsman may only charge premium rates that (1) are the rates most recently filed and approved by the Arizona Department of Insurance and (2) are posted “in a conspicuous [obvious] manner” at the bail bondsman’s place of business.

See R20-6-601(E)(1): https://insurance.az.gov/sites/default/files/documents/files/AAC_R20-06_20161231.pdf

What is a premium?

A premium is the non-refundable fee that will be charged by the bail bondsman in return for a bail bond, usually 10% of the total amount of the bail bond. (So, for example, if bail is set at $20,000 and the accused has no money at all and requires a bail bond of $20,000, then the premium will be $2,000.)

What is collateral?

Collateral is real or personal property – such as a house or car or jewelry – that has an agreed-upon value and may be used to secure a bail bond by a person who cannot pay the bail amount in cash.

When bail is set at a certain amount, and the criminal defendant does not have access to the financial resources required to pay that amount – plus the premium – in cash, the defendant or a friend or family member can put property up “as collateral” in order to get the bail bondsman to post a bail bond of equivalent value.

If the defendant violates the conditions of their release, then the bail bondsman will have the collateral as a guarantee that the bail bondsman will be reimbursed the amount that the bail bondsman gave to the court. For example, if the defendant fails to appear in court, and the bail bond is “forfeited” (lost), then the bail bondsman will demand that whomever purchased the bail bond pay the entire amount. If that person cannot pay the entire amount, then the cost of the bond will be covered by the sale of that person’s collateral.

What collateral may a bail bondsman require?

Under Arizona law, the collateral required by a bail bondsman “must be reasonable in relation to the amount of the bond” and it must always be returned when the case is concluded (unless the bail bond has been forfeited).

See A.R.S. § 20-340.03: https://www.azleg.gov/ars/20/00340-03.htm

How must a bail bondsman handle collateral?

The Arizona Administrative Code states that a bail bondsman who receives collateral in connection with a bail bond transaction must do so “in a fiduciary capacity” (essentially as a trustee) and, prior to any forfeiture by the accused, keep the collateral separate and apart from other funds, assets, or property.

See R20-6-601(E)(4): https://insurance.az.gov/sites/default/files/documents/files/AAC_R20-06_20161231.pdf

The collateral is provided to the bail bondsman only temporarily, basically as a means of securing a short-term loan. This is why the collateral must be returned to whomever deposited it “as soon as the obligation, the satisfaction of which was secured by the collateral, is discharged” (or, in other words, as soon as the accused has made every required appearance).

Once the case against the criminal defendant has ended, the collateral must be returned. Only if the collateral was deposited as security for unpaid premium charges, and those premium charges remain unpaid even after the accused has been released, and the bail bondsman has demanded their payment, may the collateral be sold and used to make the payment.

What (else) may a bail bondsman not do?

Under Arizona law, a bail bondsman is prohibited from (among other things):

• soliciting business in or around any place where prisoners are confined or in or around any court

• receiving or collecting for an attorney any money or other items of value for any attorney fee, cost, or other purpose on behalf of an arrestee, unless a receipt is given

• participating in the capacity of an attorney at a trial or hearing of a person on whose bond the bail bond agent is the surety

• accepting anything of value from the person facing trial except the premium – which must be known and agreed to in advance – and expenses (with the exception of reasonable collateral)

• directly or indirectly charging or collecting money or other valuable consideration from any person in any bail bond transaction or in connection with any bail bond transaction except for the purpose of:

• having that person pay the premium at the rates established by the surety insurer and approved by the Arizona Department of Insurance

• having that person provide collateral

• having that person reimburse the bail bondsman for actual and reasonable expenses incurred in connection with the individual bail bond transaction (such as, for example, guard fees, notary fees, and long-distance travel costs).

See A.R.S. § 20-340.03: https://www.azleg.gov/ars/20/00340-03.htm

Who regulates the bail bonds industry?

The bail bonds industry is regulated by the Arizona Department of Insurance.

What if I have a complaint involving a bail bond transaction?

If you would like to learn more about your rights and responsibilities or to discuss a situation involving a bail bondsman or to file a formal complaint, you may contact the Arizona Department of Insurance in person, by telephone, by email, or through online submission, as described on the Department of Insurance “Filing a Complaint” page:https://insurance.az.gov/consumers/help-problem/filing-complaint

For specific legal advice concerning a bail bonds dispute, please contact an attorney. There are links to free and low-cost legal services on this website.

How can I protect myself?

Anyone who is considering purchasing a bail bond to secure the release of a criminal defendant before or during their trial should always do each of the following:

• ask questions of the bail bondsman if any of the terms or conditions of the proposed bail bond transaction are unclear to you

• make sure that every agreement – no matter how small or unimportant it may seem – is recorded in a writing that is signed and dated by both you and the bail bondsman

• read the bail bond contract very carefully to make sure that you understand exactly what you will be responsible for (and ask a relative or friend to review it if necessary)

• never rush into signing a contract (because, as important as securing the release of a loved one undoubtedly is, you must also be careful not to get yourself into trouble as well, because that will only make things worse for everyone)

Updated: April 2020

Sources and further reading

Arizona Revised Statutes – Title 20 (“Insurance”): https://www.azleg.gov/arsDetail/?title=20

Arizona Administrative Code – Title 20, Article 6 (“Department of Insurance”): https://apps.azsos.gov/public_services/Title_20/20-06.pdf

Arizona Department of Insurance – “Bail Bond Complaint”: https://insurance.az.gov/complaint/bailbond

See Arizona Rules of Criminal Procedure, Rule 7.1 (“Definitions”): https://govt.westlaw.com/azrules/Document/N99452610ECCF11E6A2F79E2190D0C3D3?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)