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Bail In Domestic Violence Cases

Interviewer: Do they have to wait until they go to court to have that order lifted, so they would be able to go home or go pick up the children from school?

Many Individuals Will Be Released on a Personal Recognizance Bond but Will Be Liable for the Full Bail Amount if They Fail to Appear in Court

David: When a person is released on bail and if they make bail, when I say make bail I mean if they post the bail, whether it's a personal recognizance bond which in New Hampshire, you're basically promising the court you'll show up in court and if you don't, you'll owe the court an amount of money, $1000 or a similar amount.

The Bail Commissioner Receives a Fee for Night and/or Weekend Appearances

The bail commissioner gets a $40 fee for coming out at nights and weekends to actually set the bail. Frequently, I have clients that tell me they're out on $40 bail and I explain to them, "No, that's the bail commissioner fee, not the actual bail. The bail is the paper you signed promising to pay the court $1000 if you don't show up."

If Bail Is set for an Amount the Defendant Is Unable to Pay, He or She Will Appear Before a Judge the Next Day

If they make bail, the court date is set by the bail commissioner at some point, whenever the court has instructed him to set the dates. If the person does not make bail, assume the bail was set at $1000 cash and the citizen doesn't have $1000 of cash available to him at 7:00 at night when he's in jail, then they would be brought to the courthouse the very next day for the arraignment. Then the bail conditions at that point would be addressed by the judge.

Interviewer: What else can you do to mitigate the circumstances involving a domestic violence allegation?

Contacting the Spouse or Partner: Your Attorney May Be Able to Help Mitigate Some of the Bail Conditions More Restrictive Terms

David: As I say, it's important that the lawyer get involved in immediately because frequently, being prohibited from entering of one's house it becomes expensive, if you will, for the person that's been told not to go home. They have to find alternative places to stay, a couch or someplace, going to a hotel.

Most people aren't prepared to do that on a moment's notice. With respect to the, frequently bail is set at a arraignment date, the person makes bail, the arraignment date is set off two weeks. Their first court appearance is two weeks away.

In that instance, the lawyer would reach out to the spouse and see if the spouse would agree that the bail conditions could be changed so as to allow the defendant to come home and then a request could be filed by the lawyer immediately with the court saying, "Let's change the bail conditions so that the defendant-client can go home." We do that frequently with mixed success.

The Mandatory Arrest Police in Domestic Violence Cases Is a Fairly Recent Development

Interviewer: Obviously, it will hinge the alleged victim's statement, I imagine.

David: There are public policy concerns that exist. I've been in the criminal justice system for 35 years. Years ago if the spouse didn't want the person arrested, the police would basically say, basically go to both parties and say, "Are you Okay? Are you Okay?" If they both say Okay, they might tell the person that was involved in domestic violence, "Go sleep someplace else tomorrow," and then not bring a charge.

After the O.J. Simpson case where Nicole and some person not related to her in any shape or form got murdered, many of the attorney generals in America come up with a mandatory arrest policy in domestic violence cases.

If the Police Arrive at the Scene of a Domestic Altercation and Have Probable Cause That a Domestic Violence Crime was Committed, an Arrest Is Now Mandatory

The way the mandatory arrest policy works is if the police arrived at the scene of domestic violence and if they have probable cause to believe that one or the other person committed a crime of domestic violence, they are required to arrest the individual.

How Is the Domestic Violence Scenario Different from an Altercation between Sports Fans?

This is different than a fight that might take place in a sports bar where some individual decides to show up in Yankee uniform while the Red Sox are in the playoffs and then all of a sudden ask to have the channel changed and then be confronted in a physical way by another individual. An event like that takes place with an assault happening and somebody calls the police and the police shows up. Police have discretion on how to act when they show up.

In a domestic violence arena they are required to arrest.

There Are Exceptions to the New Hampshire Statute Dictating Arrests by the Police for Crimes Committed While They are Not Present

New Hampshire has a statute that basically says, "That with respect to misdemeanors and violations, the police can arrest if they have an arrest warrant or if the event takes place in their presence." So that the event I just described of the Yankee-Red Sox fans having a fight in the bar, the police don't have the authority to arrest unless a crime takes place in their presence.

Frequently what occurs is that the individuals will be yelling and screaming when the police arrive and then they will be told not to shut up and they will be arrested for disorderly conduct in the presence of police.

As I say, the statute in New Hampshire says, "You cannot be arrested unless the crime takes place in the presence of police for a misdemeanor or a violation;"

however, there are a few exceptions to this statute.

New Hampshire's Attorney Generally Has Directed Police to Arrest an Individual Alleged to Be the Aggressor in a Domestic Violence Incident

DWI accidents are one of them and another exception would be domestic violence committed within the past 12 hours. When the police arrive, they do have the authority to arrest, despite the general statutes that exist and there's a law enforcement directive from the attorney general basically telling them that in domestic violence cases they shall arrest if there is probable cause to believe one or the other committed a criminal act.

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David Horan, Attorney at Law
212 Coolidge Avenue
Manchester, NH 03102
Phone: 603-483-3417
Toll Free: 800-737-3809
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