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Do You Have to Post Bail for a DUI?

police officer giving a breathalyzer test for DUI
By Lisa M. Schaffer, Esq. | Last updated on

Most people arrested for a DUI are begging to have their bail established and posted as soon as humanly possible to get out of jail, the holding cell, or "the drunk tank." But what if you aren't in a hurry, or what if you don't have the bail money, and aren't feeling too good about asking anyone else for it. Do you have to post bail if arrested for a DUI? Absolutely not.

What to Expect When You're Arrested

Once arrested for a DUI, the suspect is usually taken into police custody and the arrest is processed by the booking department. At this time, an officer will collect a lot of information and go through some standard operating procedures. Based on that information, the suspect will either be released on their own recognizance (called an OR release) or have bail set so that they can leave jail prior to their arraignment.

If the suspect is not granted an OR release, but rather, bail is set, the suspect can choose to post bail or stay in jail awaiting arraignment. Bail is a constitutional right established by the eighth amendment. You have a right to have a fair bail established. But you don't have to post it. Similarly, you may have the right to vote, but you don't have to do it.

Can I Petition to Have Bail Changed to OR Release?

While being held in jail, you can petition to change your bail to an OR release, but this will have to be done at a bail hearing, in front of a judge, who does not work weekends. If arrested on a Friday, get comfortable. Have a friend bring you a pillow. You will be stuck there until at least Monday.

At the bail hearing to determine granting an OR release, the judge will consider your:

  • Past DUI arrests
  • Criminal record
  • Tendency to do it again if released, and thereby harm the public
  • Ties to the community, through family and employment

If granted, you will be released from jail after signing a document, promising that you will appear in court for all future proceedings. Expect some conditions to be set if you fail to appear, such as a warrant being issued for your arrest, as well as restrictions on your travel outside the jurisdiction while the issue is pending in the legal system. You may also be required to check in with the court occasionally too.

Can I Just Stay In Jail?

If none of this sounds good to you, you are more than welcomed to stay in jail until you are arraigned on the DUI charges. You will be credited for time served, so if your arraignment is 30 days away, and you stay in jail for those 30 days, and then found guilty and required to serve 30 days in jail, you can leave that day, time served.

If you or someone you love has been arrested for a DUI, please take the charge seriously. Contact a local DUI attorney, who can walk you through the process, and offer you advice based on a great deal of experience with other clients.

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