Can Bail Bondsmen Solicit Bail by Meeting Someone in Custody?

The short answer to the question posed is no.  The longer answer involves a discussion of why not and a recent published opinion wherein a bail bondsman was convicted of violating California Code of Regulations § 2079.1, which prohibits direct solicitation of bail without a prior request from the arrestee.
About This Article Briefly:  It is illegal for a bail bondsman to visit an inmate without the inmate’s consent.  It should be noted that in 2018, Governor Jerry Brown signed legislation that outlawed cash bail in California, so bail bondsmen will have no need to visit inmates.
This article is written for those who want to know more about what bail bondsman can do in their contact with folks in custody.  The reader maybe a family member or friend of someone in custody and a bail bond is something that is of interest.  Some family members of those in custody believe their family member in custody can arrange for their own bail bond because bail bondsmen meet with those in custody with ease.  This is not usually the case.

California Code of Regulations § 2079.1 was enacted to protect arrestees from harassment, intimidation, fraud and other forms of overreaching that are common in direct bail solicitation.  It prohibits agents from soliciting an arrestee, if the arrestee does not initiate contact. 

Section 2079.1 was (and is) seen as a restriction of commercial speech, which the First Amendment is supposed to protect.  However, it must be understood that a state may, in certain situations, regulate commercial speech as long as the state does so in a way that is “narrowly tailored” to serve “substantial state interests.”

The language of 2079.1 states, “[a]ny solicitation [regarding bail] of an arrestee himself… shall be only after a bona fide request for bail services from the arrestee or from a person specified in Section 2079.1 (b) or (c)…  Section 2079.1 also states that “[n]o bail license shall solicit bail except… from (a) an arrestee; (b) the arrestee’s attorney (c) an adult member of the arrestee’s family; or (d) such other person as the arrestee shall specifically designate in writing.”

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Under Insurance Code § 1814, if a bail bondsman violates any of the provisions above, the bail bondsman faces a fine up to $10,000 and up to a year in jail.

Todd Dolezal of Smitty’s Bail Bonds in San Luis Obispo was prosecuted for violating California Code of Regulations § 2079.1 and Insurance Code § 1814.  His agent had made it into the San Luis Obispo County Jail and met with an arrestee there, even though the arrestee’s husband had already hired and paid another bail bond company (not Smitty’s).

Dolezal defended his agent’s conduct and that of his company by claiming 2079.1 was unconstitutional and thus his conviction was invalid.  He claimed the statute was an improper restraint on commercial speech, in violation of the First Amendment.

He further argued that the real intent of the statue was to prevent bail bond agents from monitoring police radio frequencies and responding to arrest locations and then following someone back to the jail just to get a bail contract.  It was to protect arrestees from “undue influence” in a stressful situation, wherein they are often confused and embarrassed.  Lastly, he argued that if the ban were valid, bail bond companies should not be able to advertise in jails, but they do.

The trial court found Dolezal guilty in a bench trial and Dolezal appealed.  The Second Appellate District, in People v. Todd Russell Dolezal (2013) 221 Cal.App.4th 167, affirmed.

It found that the issue was indeed commercial speech and that the state’s interest was certainly valid in protecting vulnerable, often confused arrestees.  It then found that there was no less restrictive method of accomplishing this, so the statute was valid.

Accordingly, Dolezal’s conviction was affirmed. 

As a post-script to this article, in September 2018, it is worth noting that Senate Bill 10 outlawed cash bail in California, so such unsolicited, illegal jailhouse visits from bail bond agents will become ancient history quite soon.

For more information about bail in general, click on the following articles: 
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