Bail Issues (including violations, or VCR)

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The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.

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In theory at least, liberty is the default while a court case is pending.  Bail, however small the amount and however minor the restrictions, are still an imposition on a person's liberty. Statute in Maine requires that they be the least restrictive possible - but courts often rely on forms and check boxes. So, a defense attorney needs to be aware that every box checked by a judge has a fundamental effect on a person's freedoms.

 

Bail can be set by a bail commissioner after an arrest is made and if certain conditions do not apply that limit their authority by statute to set it. For instance, felony equivalent domestic violence offenses, kidnapping, and other offenses would only have bail set by a court. Some arrests on warrants would also be covered. Normally, a commissioner sets bail, a person pays it, and they are free to go with a court date in hand. No court appearance is necessary.

 

If a person cannot make bail set by a commissioner, or a court is the only way bail can be set, the person will remain in custody and has to appear at a court hearing within 48 hours.  This is in statute as well as part of United States Supreme Court case law.

 

Generally speaking, the United States is unusual in routinely using money amounts in securing someone’s appearance in court - the main purpose of bail. The international community scratches its head that it is still done - hence reform efforts (elsewhere, a breach of bail means staying or going back into custody, more conditions or monitoring, or other enforcement mechanisms). Important considerations in setting cash bail (rather than personal recognizance) are risk of potential offending, the safety of others, protecting the judicial process, and that someone may not appear at a future hearing. Setting an amount is supposed to be purely for those purposes.

 

In setting bail, there are a list of factors a court should consider that relate to those ends - including ties to Maine, ability to afford the amount set, prior criminal history, any prior non-appearances in court, etc. An amount is then set and conditions may be attached - such as banning contact with an alleged victim or witnesses. This is particularly problematic for domestic violence cases because the people involved may have had police involvement in an argument and want to stay in contact because they share a home and have children. 

 

Other conditions could include searches for drugs or alcohol or firearms or dangerous weapons, and testing for drugs to ensure any court-imposed prohibition is complied with. A person on bail is also expected to inform a court about their current address and a failure to do so can cause problems. This practice has also seen “bail checks” where police and prosecutors know that someone will not be at an address they have given purely to get a new charge added to increase the pressure on a defendant because they may have a warrant issued and be arrested.

 

A bail amount that is set - or a condition imposed - can also be challenged at another hearing. A person is entitled to one fresh look at their bail (called de novo review). There is always a risk that it is set higher than before. If that is still too high, a person can request review by a single Justice of the Maine Supreme Judicial Court. In practice this is rarely done.

 

Even if bail is set but it is too high and the defendant remains in custody, bail conditions (called conditions of “release”) still apply while a person is in jail. That seems counterintuitive but a failure to follow them (whether in custody or not) leads to more legal problems - such as a new criminal charge and a potential motion to revoke bail. The new criminal offense is called a Violation of Conditions of Release.

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Violation of Condition of Release

This is a common addition to a person's charges, often for the most minor of otherwise non-criminal conduct. Violation of Condition of Release (shortened to a VCR) is a fairly straightforward charge. Most of the time, a VCR is charged as a misdemeanor. However it can be charged as a felony if the underlying crime was ALSO a felony AND the condition that is violated is contact with an alleged victim, a potential witness, or a family member of either the alleged victim or defendant. It is also a felony if the underlying offense is a felony and there is a condition requiring a person to report on a regular basis to police or a government agency.

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This charge is often used to affect bail conditions of any cases that are currently active. It also used as a way of coercing people to plead guilty. 

 

This is a strict liability offense, which means what a person intended is irrelevant. There has to be a court / bail condition that someone knew about and that they were warned about the criminal consequences of not doing so (either it was mentioned by the judge in court or you signed a court form that outlines that possibility), you broke that condition (such as with new criminal conduct, contact with a person for which it was prohibited, failed to notify the court about a new address etc) without a good enough legal reason. If the government cannot prove that new criminal conduct that was the reason for the violation (at a trial), then this charge would go away too.

 

For a VCR, there is a rather vague defense, called an affirmative defense, where the burden is on the defendant to prove they had “just cause,” which could be characterized as a sufficient justification. Depending on the type of violation, it is also possible to make an argument that it was so minor that it does not deserve a criminal penalty, known in legal jargon as de minimis.

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There is an arguable constitutional issue involving this charge in that it potentially implicates double jeopardy issues. However, this has been litigated in Maine's highest court and until that case law changes, or a federal court has a say, that avenue of litigation is pretty much closed.

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