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Learn About Bond, Bail and Pretrial Release

Pretrial release is controlled by the Michigan Constitution Art 1, § 15 and MCR 6.106.  These rules, with little exception, default to mandatory rules that require a judge to order pretrial release pending trial.  Many, many judges in the district courts impose conditions and bond requirements that are clearly and unequivocally unconstitutional.

The Michigan Constitution, Art 1, § 15 states:

No person shall be subject for the same offense to be twice put in jeopardy. All persons shall, before conviction, be bailable by sufficient sureties, except that bail may be denied for the following persons when the proof is evident or the presumption great:

(a) A person who, within the 15 years immediately preceding a motion for bail pending the disposition of an indictment for a violent felony or of an arraignment on a warrant charging a violent felony, has been convicted of 2 or more violent felonies under the laws of this state or under substantially similar laws of the United States or another state, or a combination thereof, only if the prior felony convictions arose out of at least 2 separate incidents, events, or transactions.

(b) A person who is indicted for, or arraigned on a warrant charging, murder or treason.

(c) A person who is indicted for, or arraigned on a warrant charging, criminal sexual conduct in the first degree, armed robbery, or kidnapping with intent to extort money or other valuable thing thereby, unless the court finds by clear and convincing evidence that the defendant is not likely to flee or present a danger to any other person.

(d) A person who is indicted for, or arraigned on a warrant charging, a violent felony which is alleged to have been committed while the person was on bail, pending the disposition of a prior violent felony charge or while the person was on probation or parole as a result of a prior conviction for a violent felony.

If a person is denied admission to bail under this section, the trial of the person shall be commenced not more than 90 days after the date on which admission to bail is denied. If the trial is not commenced within 90 days after the date on which admission to bail is denied and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of bail for the person.

As used in this section, “violent felony” means a felony, an element of which involves a violent act or threat of a violent act against any other person.

MCR 6.106 states in relevant part that:

Release on Personal Recognizance. If the defendant is not ordered held in custody pursuant to subrule (B) [which pertains to murder, treason, violent felonies and specific felonies], the court must order the pretrial release of the defendant on personal recognizance, or on an unsecured appearance bond, subject to the conditions that the defendant will appear as required, will not leave the state without permission of the court, and will not commit any crime while released, unless the court determines that such release will not reasonably ensure the appearance of the defendant as required, or that such release will present a danger to the public.

Many district courts impose a monetary bond in all cases. This is absolutely illegal. It is my opinion that these judges impose the mandatory monetary bonds across the board to act as a security against the fines and costs that might be imposed if the defendant pleads or is convicted. Again, however, this is illegal. The only time that a monetary bond may be imposed is if the court finds that a personal recognizance will not secure the defendant's appearance.  For example, if a particular person has a history of failing to appear for court, a monetary bond is justified. 

Many courts have also taken to imposing conditions. Conditional bonds arise out of specific cases, and these conditional bonds require a person to do something or to refrain from doing something during the pendancy of the case. For example, in a domestic violence case, the court might order that the defendant refrain from living in his or her home with their spouse. It might also require a person accused of shoplifting to refrain from going to a particular store. These are not really controversial limits on liberty, given that these conditions can be challenged, but they are significant. But many judges have decided to impose rules such as mandatory chemical testing just because a person has been accused of possessing a controlled substance. So a first time drunk driving suspect, despite being presumed innocent, is required to blow and pee a hundred times before he is found not guilty by a jury, paying hundreds of dollars for the privledgge of being charged with a crime. Likewise, a woman is stopped driving a nice car, and police are suspicious. After illegally arresting her, they find a hidden drug compartment under the car, and she is required to pee in a cup for months while fighting the charges, even though she has never done drugs in her life. These are real examples, and they happen all too often. These are illegal bond conditions because they are designed to search as opposed to protecting the public from any real danger. 

In general, a person accused of a criminal offense is entitled to personal recognizance interim bail to obtain release before arraignment. MCL 765.4; MCL 765.6. However, “[n]o person charged with treason or murder shall be admitted to bail if the proof of his [or her] guilt is evident or the presumption great.” MCL 765.5. See also Const 1963, art 1, § 15 (identifying additional offenses precluding bail “when the proof is evident or the presumption great”). The applicable procedures for bail depend on the nature of the offense and whether a magistrate is available to set the amount of bail.

 

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William Maze is an established Livonia Michigan attorney in Wayne County Michigan, and he has represented well over a thousand satisfied criminal defense clients across the state.  He has received multiple awards and recognitions, and he maintains a national reputation as one of the leading drunk driving defense attorneys in the country.  

  • Extensive training and education far beyond the average lawyer
  • Actually fights cases and is willing to go to trial
  • Past President of CDAM (2014-2015), the Criminal Defense Attorneys of Michigan
  • Member of the National College for DUI Defense
  • Member of the National Association of Criminal Defense Lawyers