When bail is set, a defendant can post that bail in order to get out of custody pending the resolution of the criminal case. Sometimes, mostly in drug and financial crimes or fraud allegations, a “1275.1 hold” will prevent the defendant from posting bail unless a hearing is first held.
A hold is placed on the bail when a probable cause showing or determination has been made that the funds to be used to post the bail (or funds used to pay the bail bonds company) came from a felonious source.
There are three ways in which a hold can be placed: 1) a peace officers makes the request with a sworn affidavit stating why he or she believes there is probable cause that the source of the funds is tainted by illegality and the court agrees; 2) a prosecutor makes the request with the same requirements; 3) the court makes the determination on its own.
If a probable cause finding regarding the tainted source of the funds is made, then the burden shifts to the defendant to show, by a preponderance of evidence (more likely than not,) that the source of the funds is clean, i.e. funds not feloniously obtained. If the defendant makes that showing, then the hold is lifted and bail can be posted.
To meet this burden, the defendant must start by a careful presentation of documents and proof that the money being used to bail out is traced to a legal source. Sometimes, a third party may be willing to step up and post the bail. If there is probable cause to believe that the defendant will repay the third party with felonious funds, we are back to square one.
An interesting issue in the law especially with drug charges where the defendant may have access to significant funds, as in the case of Esteban Loaiza.