This is a cautionary tale for those who lend money for bail in Utah. You have to know that your money is at risk if you lend money to bail someone out of jail. It is apparently a profitable business but you should probably leave it to the professionals. So, when your buddy or brother-in-law calls you from jail and begs you to post his bail, remember the mistakes made by the Saudi Consulate and decline.
In a recent case from the Utah Supreme Court, Saudi Arabia v. Pullan, our good Judge Pullan got it right. A Saudi Arabian citizen, Al Shammari, was arrested in Orem on rape charges. The Royal Consulate of the Kingdom of Saudi Arabia posted his $100,000 bail in cash. Shammari immediately high-tailed it to the Tijuana border and tried to cross over to Mexico where he was arrested by the Customs and Border Patrol. When Shammari failed to appear at his next hearing, the bail was declared forfeit without providing notice to the Consulate.
The mistakes by the Consulate were to post the bail on its own, post it in cash, and not bother to read the Utah Code. Bail bonding companies make money because they do everything they can to keep their money. They know the rules and follow them. If the Consulate had followed the rules it would have been entitled to notice before forfeiture. Or, if it had posted bail through a bail bond company, the bonding company would have done it right and protected the $100,000.
In this appeal, the Consulate claimed it was a “surety” for purposes of the Utah Code and was entitled to notice before the bail was forfeited. Unfortunately for the Consulate, it did not meet any of the requirements to demonstrate it was a surety.
Bail in Utah can be made in one of two ways: (1) filing with the court an undertaking tendered by an individual or entity that ordinarily will be accompanied by the posting of a bond (i.e., agreement to pay money supported by evidence of ability to pay); or (2) depositing into the court a bail by cash or an equivalent form of payment. The first method requires the court give notice to the person posting the bond and the second does not.
The Consulate argued that it should have been given notice because it loaned Shammari the cash bail money, making it like a bond. The Supreme Court clarified that the source of the funds is not relevant and does not make a deposit into a bond without following the Utah Code:
“The statutory scheme for bail does not concern itself with the manner in which the defendant obtains the funds for cash bail or the nature of the relationship between the defendant and another provider, if any, of the funds. The person posting the cash bail may be merely functioning as a courier for the defendant’s own funds, may be providing the funds out of friendship or familial loyalty, or may have extracted some agreement that may or may not be legally enforceable as a private contract.”
Be careful with your money- you worked hard to get it. If you have questions, ask them. If you would like more information about criminal law or bail bonds, contact me, Utah attorney Ken Reich. I am no expert on bail bonds or criminal law, but I have partners, friends, and colleagues who are. I would be happy to answer whatever questions you have and send you to people I trust for ones I cannot.