The Cost of Bail after a Houston DWI Arrest

If you or someone you love faces a charge for driving while intoxicated (DWI) in Houston, you're probably scared and wondering what to do next. How do you get out of jail? Will you be allowed bail? How much will bail cost, and can you afford it?

First, try not to panic. If arrested for DWI in Houston, you'll probably be released from jail long before trial with a bail amount you can afford. There are typically three different ways you can get out of jail:

  • On your own recognizance;
  • Cash bail; or
  • Surety bail.

If you can't afford bail, surety bail may be an option. But the best way to ensure that your bail is reasonable is to hire an experienced DWI defense attorney right away.

What is Bail? And What Is Its Purpose?

Bail is a payment that you make to the court in exchange for an agreement that you will appear for any hearings and trial in your DWI case. Your release from jail with bail is a pretrial condition, and if you fail to appear, you will forfeit the amount of bail you paid, and the court will probably issue a warrant for your arrest. The bail process can be confusing, and determining exactly how much your bail will be is complicated. An experienced DWI attorney can typically negotiate your bail amount with the prosecuting attorney.

The 8th Amendment to the U.S. Constitution entitles defendants to reasonable bail: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The founders felt that enshrining reasonable bail in the Bill of Rights was necessary to respond to English courts' excessive bail. Unfortunately, the Constitution doesn't explicitly describe what “excessive bail” means. To determine what is reasonable, we look to state and federal statutes and the surrounding case law.

Reasonable Bail

When the U.S. was brand new, Congress passed the Judiciary Act of 1789, which established that courts must set bail in all cases except those punishable by death. “Upon all arrests in criminal cases, bail shall be admitted, except where punishment may be by death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of a district court, who shall exercise their discretion therein.”

But the standards for setting bail have constantly evolved since the beginning of our country. In the mid-twentieth century, the U.S. Supreme Court determined that “bail must be set after a factual review of each defendant's circumstances and may not be excessive.” Stack v. Boyle, 342 U.S. 1 (1951). Then in Bandy v. U.S. in 1960, the Supreme Court clarified this by stating that “pretrial detention due solely to the indecency of the defendant is a clear denial of the Fourteenth Amendment.” 364 U.S. 477 (1960).

In 1966, Congress passed the first federal guidelines for setting bail. The Bail Reform Act of 1966 aimed to prevent poor defendants from being held in jail unnecessarily. See 18 U.S.C. §§ 3141-3151 (1966). But in the 1980s, with the Comprehensive Crime Control Act of 1984, our country once again shifted toward detaining defendants. The legislation authorized courts to consider whether the defendant might pose a danger to the community. See 18 U.S.C. § 1030, et seq. (1984).

Reasonable Bail in Texas

In Texas, courts have the authority to impose “reasonable conditions” of pretrial release. Tex. Code Crim. Pro. 17.40(a). The Texas courts will generally agree that a bail amount is a reasonable pretrial condition if it:

  • Is reasonable;
  • Is made to secure the presence of the defendant at trial; and
  • Is related to the safety of an alleged victim or the community.

The bail requirements can't, however, “impinge unreasonably upon rights guaranteed by the Constitution.” Ex parte Anderer, 61 S.W.3d 398 (Tex. Ct. Crim. App. 2001).

How Does the Court Set Bail Amounts for DWI?

The amount of your bail will depend on many factors, including:

  • The severity of the charge:

If you face a felony DWI instead of a misdemeanor, bail is typically higher. In Harris County, a felony DWI charge can require a bond of up to $35,000. Bail is also higher if the police charge you with aggravating circumstances like having a child in the car, having a blood alcohol level of .15% or higher, and seriously injuring or killing someone while driving intoxicated.

For a first DWI charge, bail is typically between $500 to $1,000 and is almost always less than $2,000 with no aggravating circumstances. In some cases, the court may release you on your own recognizance for a first DWI charge.

  • Prior DWI convictions:

If a court convicted you of one or more DWIs in the past, your bail will likely be higher.

  • Serious crimes:

If your DWI is allegedly related to a serious crime like a capital felony, a domestic violence charge, a first-degree felony, bail jumping or failure to appear, or unlawful possession of a firearm by a felon, you may have to appear before a judge to have bail set.

  • Risk level

When setting bail, the court will also consider the risk to the community. Each defendant receives a score between one and five depending on their criminal history. Recommended bail amounts go up as the number increases.

If this DWI isn't your first criminal charge, hiring a DWI defense attorney can be key to getting bail set at an amount you can afford. An attorney can negotiate with the prosecutor to reduce the severity of the DWI charge you face and represent you at a bail hearing if necessary.

What is Surety Bail?

We've all heard of a bail bondsman, right? Well, a bail bond agent will charge you a percentage of the bail, usually ten to 15%, in exchange for putting up your bail amount. You'll pay this fee to the bail bond agent even if you appear at trial and all of your hearings. If you can't afford even the 10-15% of the bail, some bail bondsmen will lend you the fee with interest, and you can pay it back over time.

Say, for example, the court sets bail at $2,000. You can pay the $2,000 in cash to the court, or you can use a bail bond agent and pay them $200 to put up the bail. If you pay the $2,000 bail to the court, you will get it back if you show up for all of your court appearances. If you pay the bail bondsman $200, you will not get that back.

Hire a DWI Specialist

When you're facing a DWI charge in Texas, your priority should be hiring an experienced DWI defense attorney as soon as possible. As soon as a DWI specialist comes on board, they can begin negotiating with the prosecutor and evaluating the state's evidence. Your attorney's negotiations with the prosecutor can reduce the severity of the charges you face, which in return can lower or eliminate your bail.

A skilled attorney specializing in DWI defense can also explain the full range of your legal options. Experts in DWI defense are well versed in the law surrounding DWIs and the technical legal issues related to blood alcohol testing, and the evidentiary issues specific to DWI cases. You don't want an attorney who will rush you into a guilty plea. You are innocent until proven guilty, and you need an attorney who passionately believes that. You also need an experienced attorney who can explain:

  • Whether a plea agreement is possible or feasible in your case, it may be in your best interest to fight the charges in many cases.
  • The parts of your case that work for and against you.
  • The pros and cons of going to trial in your unique case.
  • The impact of possible plea agreements, sentencing, and other outcomes like deferred adjudication.
  • The possible long-term consequences of a DWI conviction.

Attorney Doug Murphy is Board Certified in DWI Defense by the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization. He is also Board Certified in Criminal Law by the Texas Board of Legal Specialization. Doug is one of only two lawyers in Texas Board Certified in both criminal law and DWI defense. U.S. Best Lawyers in America also recently named Doug the “Lawyer of the Year” for 2021 in DWI defense. The prestigious ranking, published by U.S. News and World Report, is based entirely on the review of Doug's fellow defense attorneys.

In addition to his courtroom accomplishments, Doug Murphy is a sought-after expert in DWI defense and has lectured at over 120 continuing legal education seminars throughout the United States. The Harris County Criminal Lawyers Association also awarded him the Sharon Levine Unsung Hero Award for his work with colleagues to expose flaws in the Houston Police Department's Blood Alcohol Testing vans. This investigation led to the police department decommissioning the vans. The Houston Press has also referred to Doug as the “Drinking Driver's Best Friend.”

See what the DWI “Lawyer of the Year” can do for you. Give us a call at 713-229-8333 to set up a consultation today. You don't have to go through this alone, and we can help.

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If you are facing DWI or other criminal charges in Texas, contact our office today to discuss your case, so we can begin working on your defense. Please provide only your personal email and cell phone number so that we can immediately and confidentially communicate with you.