How Does Criminal Bail for Physicians Work?
What? Bail for a doctor? They don't teach that in Medical School.
Increasingly the special treatment afforded by law enforcement to doctors is vanishing. With body worn cameras and cell phone videos the anonymity that allows an officer to release a detained physician without an arrest is less likely. Over the past decade we have increasingly received calls from friends, spouses and doctors in jail asking how to post criminal bail for physicians. In another context, when a doctor’s office has been searched by police with a warrant an arrest may be delayed. But ultimately the bail issue is on the table.
Most of the rules of bail apply equally to physicians and the rest of the universe. Some nuances negatively impact doctors. This article discusses bail generically but with a focus on aspects of bail useful to the typical doctor. It also explains the initial courtroom appearances for arraignment on complaint, indictment or information.
The Easy Bail Option
If we have time, our lawyers reach out to the investigating agency and work out an arrangement where the doctor self surrenders. Often a prearranged bail amount or a release on the doctor’s own recognizance is arranged.
The Shock & Awe Bail Problem (Used a Lot Against Doctors)
In less friendly cases, the doctor hears a knock at the door at 7:00 am and a small army arrests him and sweeps his home. In those instances bail, right the practice pending resolution of the court case and maintaining economic viability are major issues. Assets get frozen, office staff run for cover, spouses, family and friends desperately try to find an attorney. It is a fine mess and can sometimes take more than a few hours to unravel.
Doctors Arrested Just Like Regular People for Run of the Mill Cases
The last category are standard arrests that have nothing to do with your practice. Domestic violence and DUI’s (Drunk Driving) are the most common “doctor down to earth” arrests. These are usually misdemeanor arrests and in many counties have a release without bail (Los Angeles) or low bail policy.
The Bail Process in General
In this segment we discuss only the bail issue and the process from bail being set, the bail review hearing (if needed) and the initial arraignment on the criminal complaint, information and / or indictment. The focus is on California bail law which differs significantly from federal bail. This is perhaps more technical than you need. The short version is, get a bail bonds company, post real estate, get your lawyer to ask a judge to reduce bail. The more complete version follows.
California Constitution Bail Provisions
The California Constitution has two key bail sections. These are Article I, Sections 12 and 28. The short version is that you have a right to reasonable bail except for really awful crimes.
Section 12 “was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases.” (In re Law (1973) 10 Cal.3d 21, 25, citing In re Underwood (1973) 9 Cal.3d 345 and Ex parte Voll (1871) 41 Cal. 29, 32.)
What does this mean? It means a person has a “right to obtain release on bail from pretrial custody” except for certain heinous crimes. (In re York (1995) 9 Cal.4th 1133, 1139-1140, fn. omitted).
Even violent criminals get protection. Section 12(b) & (c) requires proof by clear and convincing evidence of a substantial likelihood of great bodily harm to others in order to prevent the setting of bail. Section 28(f)(3) likewise addresses public safety bail denial. In healthcare related cases neither of these restrictions should apply.
Bail at the Jail
This is the automatic system. When you get arrested a “bail schedule” for your county, sets an automatic bail for the crimes for which you were arrested. The quick way out is to hire a bail bond company or show up with cash or a cashier’s check (in most jurisdictions).
Who Picks the Criminal Charges?
These are crimes that a prosecutor has drawn up if the case was obtained by Indictment through a Grand Jury or via an arrest warrant prepared by the prosecutor. In most cases involving medical crimes the investigation is controlled by a specific member of the district attorney’s office. For non-medical crimes a police officer may obtain the arrest warrant and write up the relevant charges. There are also warrantless arrests where the arrest takes place essentially as the crime happens so no warrant is obtained. Warrantless arrests also follow the bail schedule.
So bail is like a tax. Law enforcement or the prosecutor stacks up lots of charges and increases your bail. You pay the tax or you sit in jail until a judges reduces it.
Reducing Bail Quickly under PC 1269c
When is it worth paying a lawyer several thousand dollars to try to get a bail reduction? If bail is $ 250,000 and you want to get out right away, a bail bond company can charge $ 20-25,000 to post the bond. If a judge can be reached quickly to do a quick review, it might be worth the investment. If bail is $ 25,000 it might be time to bite the bullet and get out now! :]
California Penal Code section 1269c explains how to get bail reduced or eliminated.
The defendant ... may make application to the magistrate for release on bail lower than that provided in the schedule of bail or on his or her own recognizance.
The magistrate ... is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant's appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence, and to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate, or he or she may authorize the defendant's release on his or her own recognizance.
Tracking down an on duty judge or getting into a courtroom before the client is officially brought to court by the prosecution is part art and part science. Many people are so anxious to be released that they are willing to post bail, even if it costs them a good deal of money. Remember that a bail bond company will charge about 10% of the bond amount and this is good only for a year.
Bail Hearing Required for Serious Felonies
This quick reduction is not available for many serious felonies and certain other crimes. (See Penal Code section 1270.1)
When a person is detained in custody on a criminal charge prior to conviction for want of bail, that person is entitled to an automatic review of the order fixing the amount of the bail ...
That review shall be held not later than five days from the time of the original order fixing the amount of bail on the original accusatory pleading. The defendant may waive this review.
(Penal Code section 1270.2)
A Note About Bail Fairness
In California the ability to post the bail amount must be considered by the court. A rich person may easily post $ 10,000 bail while a working person who has no intention to flee the jurisdiction may be able to post of $ 1000. It is not fair for two people charged with the same crime and both intending to appear in court to be treated differently. This may not help a physician but if staff is arrested this should be considered when their bail is set.
Property Bail Law
Get Out of Jail Free - almost.
The property bail law is California Penal Code Section 1275.5. Instead of posting cash bond you can put up real estate. The appraised value of the real estate has to be at least twice that of the bail. There needs to be a qualified appraisal. A court approves the application and a deed of trust is recorded in favor of the Clerk of the Court.
If You Really Want to Read In Depth
Read the 3 Major Bail Cases (in California)
What Happens at the First Court Appearance
1. Bail
A request to reduce bail can be made on the spot or a hearing set within 2 days of that appearance. You will be given a copy of the criminal complaint or indictment. At this stage you may enter a not guilty plea, challenge the sufficiency or wording of the accusation against you, or ask for additional time to decide what to do.
2. Complaint, Indictment, Arraignment
Felonies
A criminal complaint is the first stage of the process. You enter a plea and at some point a preliminary hearing follows. At the preliminary hearing the prosecution must raise a suspicion that crime was committed by you. It is a very light standard. If that standard is met the case goes forward and a new document called an Information is issued. You can then enter a not guilty plea, challenge the sufficiency or wording and ultimately the case proceeds to trial.
If a grand jury reviews the charges you skip the criminal complaint part and go right to the 2nd not enter a plea stage. The Grand Jury document is called an Indictment and it is equal to an Information.
The Diference Between a Complaint, Indictment and Information
Misdemeanors only have a “complaint” but felonies the complaint to be reviewed by either a Grand Jury or a Judge before moving forward to trial.
To summarize there is an arraignment on information california and an arraignment on indictment. These are both the same stage. You appear in court, plead not guilty and set a trial. Arraignment on complaint is a filing of charges. The charges in a complaint have not been reviewed by a Grand Jury. If that review took place an Indictment would have been filed. The arraignment on complaint is followed not by a grand jury review but review by a judge. That is when the document called an Indictment is created.
When Are Physicians Treated Differently?
Economic and immediate license infringements make an arrest for fraud related crimes particularly damaging to doctors.
The shock and awe arrest is the worst case scenario. But even with friendly self surrender cases there is usually a freezing of bank accounts and a motion to restrict the medical license. Financial pressures can be crushing as offices have overhead that does not end but patient flight, insurance company freezes on reimbursement and even practice restrictions can create a huge cash crunch.
This impacts the ability to post bail, hire an attorney and conduct a proper defense investigation. Employees who lose their jobs may become resentful which is reflected in their courtroom testimony. Staff are often threatened and then approach the doctor while wearing a wire.
For these reasons we recommend that all physicians who are subject to a criminal investigation provide for bail and legal representation advance and sufficiently fund both before any seizures take place.
Contact an actual SPECIALIST - Daniel Horowitz
If you are a physician who has been arrested or is facing arrest, Daniel Horowitz is your best choice as a criminal defense attorney. Daniel has been a State Bar of California certified criminal defense specialist (Board of Legal Specialization) for over 30 years. Any general practitioner can call himself a “criminal defense attorney”. On 7 in all of Contra Costa County (as of 1/26/2024) and only several hundred in the entire state are allowed to use the designation “specialist”. Unless you use your PCP for spine surgery, a criminal defense specialist is best for your criminal defense.