O.R. Release – How to get out of jail without posting bail

An “own recognizance” release is when the court lets a defendant out of jail after an arrest without having to post bail, based solely on his or her promise to (a) return to court for future hearings and (b) comply with certain conditions of release.

Anyone charged with a California criminal offense may be granted an O.R. release unless:

• The charged offense is one punishable by death,
• Letting the defendant out will compromise public safety, or
• There are no reasonable assurances that the defendant will appear in court. 1

However, getting out without bail is not automatic (with the exception of Los Angeles County, where most arrestees may get released without bail). Plus not every arrestee is eligible for O.R. release.

That’s where we come in.

Our lawyers include former prosecutors and cops. We understand the California criminal justice system inside and out. As a result, we know the most effective arguments to convince judges to grant O.R. releases.

To help you better understand how to get an O.R. release, our California criminal defense lawyers discuss the following:

• 1. How to Get O.R. Release
• 2. Criteria
• 3. Requesting O.R.
• 4. Hearing Before Judge
• 5. Making The Case
• 6. Conditions of Release
• 7. O.R. Investigations
• 8. O.R. vs Bail
• 9. O.R. Release Agreement
• 10. Penalties for Violating O.R.
• Additional Resources

An O.R. release can often save a person thousands of dollars in bail costs.

1. How to Get O.R. Release

In California, there are three ways to get released from jail after being arrested:

With many low-level misdemeanors — such as a “typical” first-time DUI arrest – the officer will simply hand someone a citation to appear.

California bail laws allow people to post security for future court appearances. This security is known as “bail.”

California law recognizes three forms of bail:

• Cash bail,
• Bail bonds, or
• Property bonds.

As long as the arrestee makes their court appearances, the bail will be refunded once the case is resolved. But if the individual fails to appear in court, the bail will be forfeited.

1. By an “own recognizance” (“O.R.”) release

Sometimes a person can get out of jail simply by promising to appear for all court appearances. This is known as an “own recognizance” or “O.R.” release.

As bail for many offenses costs thousands of dollars, an O.R. release is often worth seeking.

2. Criteria

Courts can grant an O.R. release to anyone arrested for a crime in California unless:

• One or more of the crimes charged is punishable by death,
• The release would compromise public safety, or
• An O.R. release would not reasonably ensure the individual’s appearance in court.

Note that in California, a person may not be held in custody solely because they cannot afford bail. After an arrest, the court will hold a Humphrey hearing where the judge will release the arrestee if they are

• not a threat to public safety and
• cannot afford to pay bail.

Note that OR release is the default rule in Los Angeles County. Only people arrested for serious or violent felonies may get held on bail.

Plus in all of California, people can no longer be incarcerated solely because they cannot afford bail. Clear and convincing evidence is required to show that detention is necessary to protect public safety. 2

3. Requesting O.R.

Requests for an own recognizance release are usually made during the California arraignment process. The arraignment is when the accused enters a plea and release from jail is determined.

In some counties, however, court officers are on call around the clock to grant O.R. releases.

Some offenses require a formal adversarial hearing before a judge can release the defendant on their own recognizance. 3 These offenses are discussed in Section 4, below.

Otherwise, during the arraignment, the defense will present arguments in favor of an O.R. release.

The judge may then ask the prosecutor if they have:

• A point of view about an O.R. release, or
• Any information that would help the judge decide whether to grant one. 4

Both of these judicial requests are optional during an arraignment. Judges are only required to give prosecutors an opportunity to participate in a formal adversarial hearing or a bail hearing.

4. Hearing Before Judge

A judge is required to hold a formal hearing on an O.R. release if the offense is one outlined in

• California Penal Code 1319.5 or
• California Penal Code 1270.1.

A formal O.R. release hearing is conducted in the same manner as a California bail hearing. The prosecutor can present evidence and argue against an O.R. release.

(As discussed above, O.R. is automatic for most crimes in Los Angeles County.)

Penal Code 1319.5 PC offenses

California Penal Code 1319.5 requires a formal hearing for an O.R. release if:

–The current offense was allegedly committed while the defendant was on felony probation or felony parole; 5 or

–The defendant was issued a warrant for a failure to appear three or more times over the three prior years (other than for a Vehicle Code infraction), and the current offense is:

• A violation of California’s criminal street gang (“STEP”) laws,
• A violation of California’s assault and battery laws,
• Burglary of a residence under Penal Code 459, California’s burglary law,
• An offense in which the defendant is alleged to have been armed with or to have personally used a firearm,
• A violation of California domestic violence laws,
• An offense in which the defendant is alleged to have caused great bodily injury to another person, or
• Any other felony offense (unless the defendant is released pursuant to a court-operated pretrial release program or another pretrial release program with the court’s approval). 6

Penal Code 1270.1 PC offenses

California Penal Code 1270.1 PC requires a formal hearing for an O.R. release if the crime the defendant is accused of is:

• A serious felony (such as murder, rape or assault with a deadly weapon),
• A violent felony 7 (as defined by California law),
• Certain violations of Penal Code 136.1, California’s “witness intimidation” law,
• A violation of Penal Code 243(e), California’s domestic battery law, or
• Penal Code 273.6, California’s law on violating a protective order, if the alleged violation involved violence, a serious threat of harm, or the defendant going to the victim’s home or workplace. 8

Note, however, that a defendant charged with a violent felony may not be released O.R. if it appears by clear and convincing evidence that:

• They were previously charged with a felony offense, and
• While that charge was pending, they willfully and without excuse from the court failed to appear in court as required. 9

Defendants accused of domestic violence may have a hard time securing an own recognizance release in California.

5. Making The Case

To get an O.R. release , a defendant will need to establish that:

• The defendant will appear in court as required, and
• Releasing the defendant will not create a risk of public safety.

Low-level offenses

Certain offenses are considered lower risks for public safety, such as:

• A first offense for Health and Safety Code 11350, possession of a controlled substance, or
• A first offense for driving under the influence.

These are arguably one-off crimes that will not endanger public safety. So people charged with one of these offenses if not released on citation are let go on their own recognizance.

Factors the judge may consider in deciding whether to release a defendant O.R.

In most cases, a California judge will need to be persuaded that a defendant should be released without bail. Factors the judge may take into consideration include:

• The existence of any outstanding felony warrants,
• Information contained in a report by the court’s O.R. investigative staff (discussed in section 7, below), and
• Any additional information provided by the prosecutor. 10

6. Conditions of Release

Judges in California have the right to condition an O.R. release on the defendant’s agreement to do or not do certain things. 11 The important thing to know is that any O.R. release conditions must be:

• Reasonably related to the charged offense, and
• Reasonably expected to further the goal of public safety.

Example: Omar is charged with commission of a California drug crime. The judge can permit his O.R. release on the condition that Omar submit to random drug testing.

This condition is reasonable because it is aimed at promoting public safety by deterring the specific criminal activity with which Omar is charged.

But if Omar had been charged with the California crime of shoplifting, Penal Code 459.5, such a condition would not be reasonable. The connection between shoplifting and drug use is too remote to warrant the invasion of privacy that results from drug testing.

Arrestees in LA County who get O.R. may have to abide by some of the following conditions:

• Release to community member, friend, family member or partner with promise to accompany the accused to court
• Phone/text/online check-ins with designated agency
• Travel Restrictions – order to not leave state, passport surrender
• Driving prohibitions or restrictions
• Stay away order
• AA/NA meeting attendance (or similar community support groups)
• Order to surrender weapon(s) to law enforcement
• Ignition Interlock Device
• In-person check-ins with designated agency
• Mental health treatment
• Alcohol abuse treatment/rehabilitation
• Substance abuse treatment/rehabilitation
• Drug and alcohol testing
• Residential treatment program
• Home relocation during case pendency
• Secure Continuous Remote Alcohol Monitoring
• Electronic monitoring/GPS
• Home detention 12

7. O.R. Investigations

Many California courts have investigators on staff to research whether defendants are good candidates for an O.R. release. 13

During such an investigation, court staff may contact a defendant’s family members, employers, and others. The staff will be trying to determine:

• The defendant’s character, and
• Whether the defendant has strong community ties that make them less of a “flight risk.”

In general, courts do not conduct such an investigation unless the defendant requests to be let out on their own recognizance.

But if a court has an investigative staff, it MUST conduct an investigative certain cases if the charges involve:

• A “violent felony” (as defined in Penal Code 667.5), or
• A DUI resulting in “great bodily injury.” 14

8. O.R. vs Bail

The main advantage to an O.R. release is that it keeps a defendant from having to post bail. Since bail can run into thousands of dollars for many offenses, this can be a considerable saving.

But, as noted above, asking for an O.R. release can trigger a court investigation. This may not always be in a defendant’s interest.

“Some defendants would prefer to keep their arrest a secret. Others may want to prevent the court from uncovering information that it may not otherwise know about. In either case, posting bail may be a better option.”

Defendants who are on probation or parole

Defendants who are currently on probation or parole may also be better off posting bail than requesting an O.R. release.

Often if the court finds out that a defendant is on parole or probation, it will place a “hold” on the defendant’s release.

But a defendant who is released before the court discovers they are on probation or parole will usually be allowed to remain free until the case has been resolved.

Defendants who post bail are usually released more quickly than those who ask to be let out on their own recognizance.

Thus defendants who are on probation on parole may wish to post bail to get out of jail as quickly as possible.

Judges may deny O.R. release when the defendant is a flight risk or a danger to the community.

9. O.R. Release Agreement

California law requires the signature of an “O.R. release agreement” before a defendant can be released on recognizance. Under this agreement, the defendant:

• promises to appear for all court dates,
• promises to abide by all court-imposed conditions,
• promises not to leave the state without first obtaining permission from the court,
• waives extradition in the event the defendant fails to appear as required and is apprehended outside California, and
• acknowledges that they have been informed of the penalties and consequences for failing to appear in court in California. 16

10. Penalties for Violating O.R.

If a defendant violates the terms of their O.R. release, the court will likely issue a California bench warrant for their arrest and impose bail. 17

The most common way people violate O.R. is by failing to appear in court. The court will presume a defendant willfully failed to appear if they do not appear within 14 days of the scheduled court date.

Punishment for failure to appear depends on whether the defendant was originally charged with a misdemeanor or a felony.

Misdemeanor charge

If the original charge(s) was/were for one or more misdemeanors, failing to appear is also a misdemeanor. Penalties for misdemeanor failure to appear can include:

• A fine of up to $1,000, and
• Up to one (1) year in county jail. 18

Felony charge

If the original charge(s) included one or more felony offenses, failing to appear in court is a felony.

Consequences of a felony “failure to appear” can include:

• Up to three (3) years in the California state prison, and
• A maximum $5,000 fine. 19

Additional Resources

For more in-depth information on O.R. release, refer to the following scholarly articles:

• Doing the Bare Minimum: Why a Preference Should Be Expressed for Personal Recognizance Release – Rutgers Journal of Law & Public Policy.
• An Inquiry to Identify the Jurisprudential-Legal Nature of Orders of release on own recognizance Through a Critical Review of the Existing Doctrines – The Judiciary Law Journal.
  
• Trends in Own Recognizance Release: From Manhattan to California – Pacific Law Journal.
• A Proposal for an Own Recognizance Release Bail Program, with Focus on the DWI Arrest – Idaho Law Review.
• The impact of extralegal characteristics on recognizance release among misdemeanants – Journal of Ethnicity in Criminal Justice.

Legal References:

1. California Penal Code 1270(a) PC: “Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant. A defendant who is in custody and is arraigned on a complaint alleging an offense which is a misdemeanor, and a defendant who appears before a court or magistrate upon an out-of-county warrant arising out of a case involving only misdemeanors, shall be entitled to an own recognizance release unless the court makes a finding on the record, in accordance with Section 1275, that an own recognizance release will compromise public safety or will not reasonably assure the appearance of the defendant as required. Public safety shall be the primary consideration. If the court makes one of those findings, the court shall then set bail and specify the conditions, if any, whereunder the defendant shall be released.” Note that Senate Bill 10 was not enacted due to the Prop 25 referendum. This legislation would have largely remove the cash bail system and replace it with greater judicial discretion in granting release at preventative detention hearings. (Learn more about Pretrial Assessment Services, pretrial risk assessments, validated risk assessment tools, and preventive detention hearings in California.)
2. Same. See also, Penal Code 1275 PC:“(a) (1) In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. Public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as the information included in a report prepared in accordance with Section 1318.1. (2) In considering the seriousness of the offense charged, a judge or magistrate shall include consideration of the alleged injury to the victim, and alleged threats to the victim or a witness to the crime charged, the alleged use of a firearm or other deadly weapon in the commission of the crime charged, and the alleged use or possession of controlled substances by the defendant. (b) In considering offenses wherein a violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code is alleged, a judge or magistrate shall consider the following: (1) the alleged amounts of controlled substances involved in the commission of the offense, and (2) whether the defendant is currently released on bail for an alleged violation of Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code. (c) Before a court reduces bail to below the amount established by the bail schedule approved for the county, in accordance with subdivisions (b) and (c) of Section 1269b, for a person charged with a serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, the court shall make a finding of unusual circumstances and shall set forth those facts on the record. For purposes of this subdivision, “unusual circumstances” does not include the fact that the defendant has made all prior court appearances or has not committed any new offenses.” LADA Special Directive 20-06. In re Kenneth Humphrey, 11 Cal.5th 135 (Cal. 2021); Maura Dolan, California’s top court ends cash bail for some defendants who can’t afford it, Los Angeles Times (March 25, 2021).
3. Penal Code 1270.1 (endnote 7) and Penal Code 1319.5(a).
4. See section 4 (formal hearings) and Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326 (bail hearings).
5. Penal Code 1319.5(b)(1).
6. Penal Code 1319.5(b)(2).
7. Penal Code 1319.
8. Penal Code 1270.1:“(a) Except as provided in subdivision (e), before any person who is arrested for any of the following crimes may be released on bail in an amount that is either more or less than the amount contained in the schedule of bail for the offense, or may be released on his or her own recognizance, a hearing shall be held in open court before the magistrate or judge: (1) A serious felony, as defined in subdivision (c) of Section 1192.7, or a violent felony, as defined in subdivision (c) of Section 667.5, but not including a violation of subdivision (a) of Section 460 (residential burglary). (2) A violation of Section 136.1 where punishment is imposed pursuant to subdivision (c) of Section 136.1, Section 262, 273.5, or 422 where the offense is punished as a felony, or Section 646.9. (3) A violation of paragraph (1) of subdivision (e) of Section 243. (4) A violation of Section 273.6 if the detained person made threats to kill or harm, has engaged in violence against, or has gone to the residence or workplace of, the protected party.”
9. Penal Code 1319(b).
10. Penal Code 1319 PC.
11. Penal Code 1318 PC. See also In re York (1995) 9 Cal.4th 1133.
12. See In re York, endnote 11. LADA Special Directive 20-06.
13. Penal Code 1318.1(a): “A court, with the concurrence of the board of supervisors, may employ an investigative staff for the purpose of recommending whether a defendant should be released on his or her own recognizance.”
14. Penal Code 1318.1(b): “Whenever a court has employed an investigative staff pursuant to subdivision (a), an investigative report shall be prepared in all cases involving a violent felony, as described in subdivision (c) of Section 667.5, or a felony in violation of subdivision (a) of Section 23153 of the Vehicle Code, recommending whether the defendant should be released on his or her own recognizance. The report shall include all of the following: (1) Written verification of any outstanding warrants against the defendant. (2) Written verification of any prior incidents where the defendant has failed to make a court appearance. (3) Written verification of the criminal record of the defendant. (4) Written verification of the residence of the defendant during the past year.”
15. John Murray has been named one of America’s “100 Best” criminal defense attorneys by the National Trial Lawyers Association. He defends clients against criminal and DUI charges throughout Orange County, the Pomona Valley, and Western San Bernardino County.
16. California Penal Code 1318 PC — O.R. release agreement.
17. California Penal Code 978.5 PC — Bench warrant of arrest.
18. California Penal Code 1320 PC. See also Penal Code 672: “Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.”
19. Same.