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Feb 23, 2020

Alameda County Preventive Detention and Release: Voters to Decide in November 2020

In August 2018, then-Governor Jerry Brown signed into law a measure designed to overhaul California’s cash bail system, thus reducing racial and economic discrimination. Proponents of the legislation (SB 10) advocated for an alternative to cash bail: a risk assessment system established by the courts that would determine whether someone who was arrested was at low, medium, or high risk for skipping their court appearance.

Under SB 10, most of those arrested for misdemeanors in Alameda County and other counties in California would be released on their own recognizance. Others would be reviewed by the new assessment system, called Pretrial Assessment Services (PAS). The major difference between PAS and the current cash bail system is that people will be jailed based on risk to public safety or risk of not appearing in court rather than a lack of money to post bond. If PAS determined that an arrestee should be released but the District Attorney’s office objected, then it would be up to the court – via a preventive detention hearing – to issue a ruling regarding whether or not the accused should remain in jail until their hearing.

The bail reform law was supposed to go into effect in October 2019, but massive pushback from the bail bonds industry – which would essentially be sidelined by cash bail reform – resulted in the implementation being back burned. Instead, the measure will be placed on the November 2020 ballot, and California voters – including those in Alameda County – will decide whether or not to overturn the cash bail reform law.

In response to the California Secretary of State verifying that the measure would be on the November ballot, the American Civil Liberties Union of California issued a statement saying, “By charging people nonrefundable fees for pretrial release, the bail industry has made billions of dollars off the backs of individuals and families in dire circumstances, especially people most affected by racial and economic inequities in our society and the criminal justice system. We must reject the wealth-based, two-tiered system of justice that the bail industry seeks to preserve.”

The Potential for a New System

If California voters do not rollback the 2018 law, then Alameda County criminal courts will create Pretrial Assessment Services to help determine whether or not the person charged with a crime should be held in jail or be released pending their court date.

Typically, those who are arrested for misdemeanors will automatically be released and will not be subjected to the PAS process. The exceptions are:

  • The person was arrested for a registerable sex offense
  • They were arrested on domestic violence charges
  • The person was arrested for stalking
  • They were arrested for violating a protective order
  • Having a restraining order violation within the past five years
  • Having three or more warrants for failure to appear in court within the past year
  • If this is the person’s third DUI within 10 years, if they’re charged with a DUI with injury, or if they have blood alcohol content of .20 or above
  • They’re already pending trial or sentencing on a misdemeanor or felony
  • They were arrested while on formal probation
  • The person threatened or intimidated a witness or victim
  • They violated a condition of pretrial release within the past five years
  • They were convicted of a violent or serious felony within the past five years

Those who are arrested in Alameda County for felonies will, within 24 hours of booking, be assessed by PAS. PAS takes into account the person’s criminal history, the charges against them, and whether they’ve missed court appearances in the past. They also assess whether or not the person is a threat to public safety.

Once PAS has conducted its review and determined that the person is low or medium risk, it will notify the jail that the defendant should be released. Prior to being released, the defendant has to agree to a number of conditions, namely:

  • That they will attend all their mandated court appearances
  • That they won’t leave California without permission
  • That they’ll waive extradition if they’re caught outside of California
  • That they’ve been notified of the consequences of violating the terms of their release
  • That they’ll obey the law and court orders

Those who are deemed medium risk may be released with no further requirements or they might be subjected to tracking requirements, like wearing an electronic device.

Preventive Detention Motions

Unless the prosecution files a motion to keep the defendant in jail, the judge will release even high-risk defendants at arraignment. If the prosecution objects, then the judge will conduct a preventive detention hearing within three days.

The Alameda County District Attorney can only file a preventive detention motion if:

  • The alleged crime involved violence or the threat of violence
  • The defendant allegedly used a deadly weapon or gun
  • The person is on formal probation
  • The defendant is awaiting a trial or sentencing for another felony
  • The person threatened or intimidated a witness or victim
  • There’s reason to believe that the defendant will harm others or won’t return to court

If you or a loved one is subjected to a preventive detention hearing, then you will need the assistance of a seasoned Alameda County criminal defense attorney. Your Alameda County criminal defense lawyer can argue, for example, that the District Attorney’s office can’t produce evidence that establishes probable cause that you are guilty of the crime in question. Your attorney might assert that there is a way for you to be released while still ensuring public safety and your future court appearance. If you are detained and exculpatory evidence comes to light, your attorney can even reopen your preventive detention hearing and secure your freedom.

California voters will decide the fate of bail reform in November 2020. In the meantime, you may need an Alameda County criminal defense attorney by your side. When you retain Silver Law Firm, you can count on powerhouse attorneys fighting for your freedom – and your future – every step of the way.



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