What factors do Virginia magistrates look to when deciding whether to release someone from pre-trial incarceration, and if so, on what conditions?

A:

In Virginia, magistrates and judges look to a variety of factors when determining whether an accused should be released from pre-trial confinement, and if so, on what conditions.  These factors are set out in Section 19.2-120 of the Virginia Code (set out below) and include the nature and circumstances of the alleged offense, the history and characteristics of the accused including character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, any drug or alcohol abuse, criminal history, membership in a criminal street gang and record of appearance at court proceedings. 

However, the two major concerns of Virginia magistrates and Virginia judges are the risk of flight and the danger to the public.  In fact, section 19.2-120 of Virginia Code indicates people held in custody pending trial shall be admitted to bail, unless there is probable cause to believe:

·          The accused will not appear in court when directed to do so, or

·          Releasing the accused presents an unreasonable risk to the accused or the public

This same section of the Virginia law relating to Admission to Bail goes on to say magistrates and judges in Virginia shall presume that if the accused is alleged to have committed certain offenses, then no combination of conditions will reasonably assure the appearance of the accused in a Virginia court or reasonably protect the safety of the public.  Essentially, this means that if an accused is suspected of committing one of the enumerated offenses in Virginia, the magistrate should hold the accused without bond, and the Virginia Criminal Defense Lawyer will be fighting an uphill battle when trying to persuade the Virginia judge to allow the accused to be released on certain conditions.

 The offenses for which the law mandates an initial presumption against release on bond in Virginia include certain violent offenses, offenses for which the maximum sentence if life imprisonment or death, certain drug offenses, certain firearm offenses, felony offenses if there are certain other convictions in the person’s history, felony offenses committed while the person is out on bond for another offense, and certain sex offenses, certain offenses involving child pornography and soliciting children, certain offenses involving criminal street gangs, certain DUI offenses, certain protective order violations, and Assault and Battery against a family or household member.  (See below)

The knowledgeable, experienced and successful Virginia Criminal Defense Lawyers of The Wilson Law firm can discuss release on bond pending trial and other matters related to criminal cases in Virginia with you in more detail.   

§ 19.2-120. Admission to bail.

Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history.

A. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:

1. He will not appear for trial or hearing or at such other time and place as may be directed, or

2. His liberty will constitute an unreasonable danger to himself or the public.

B. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with:

1. An act of violence as defined in § 19.2-297.1;

2. An offense for which the maximum sentence is life imprisonment or death;

3. A violation of § 18.2-248, 18.2-248.01, 18.2-255, or 18.2-255.2 involving a Schedule I or II controlled substance if (i) the maximum term of imprisonment is 10 years or more and the person was previously convicted of a like offense or (ii) the person was previously convicted as a "drug kingpin" as defined in § 18.2-248;

4. A violation of § 18.2-308.1, 18.2-308.2, or 18.2-308.4 and which relates to a firearm and provides for a mandatory minimum sentence;

5. Any felony, if the person has been convicted of two or more offenses described in subdivision 1 or 2, whether under the laws of the Commonwealth or substantially similar laws of the United States;

6. Any felony committed while the person is on release pending trial for a prior felony under federal or state law or on release pending imposition or execution of sentence or appeal of sentence or conviction;

7. An offense listed in subsection B of § 18.2-67.5:2 and the person had previously been convicted of an offense listed in § 18.2-67.5:2 or a substantially similar offense under the laws of any state or the United States and the judicial officer finds probable cause to believe that the person who is currently charged with one of these offenses committed the offense charged;

8. A violation of § 18.2-374.1 or 18.2-374.3 where the offender has reason to believe that the solicited person is under 15 years of age and the offender is at least five years older than the solicited person;

9. A violation of § 18.2-46.2, 18.2-46.3, 18.2-46.5, or 18.2-46.7;

10. A violation of § 18.2-36.1, 18.2-51.4, 18.2-266, or 46.2-341.24 and the person has, within the past five years of the instant offense, been convicted three times on different dates of a violation of any combination of these Code sections, or any ordinance of any county, city, or town or the laws of any other state or of the United States substantially similar thereto, and has been at liberty between each conviction;

11. A second or subsequent violation of § 16.1-253.2 or a substantially similar offense under the laws of any state or the United States; or

12. A violation of subsection B of § 18.2-57.2.

C. The judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is being arrested pursuant to § 19.2-81.6.

D. The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal of the presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the public:

1. The nature and circumstances of the offense charged;

2. The history and characteristics of the person, including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in a criminal street gang as defined in § 18.2-46.1, and record concerning appearance at court proceedings; and

3. The nature and seriousness of the danger to any person or the community that would be posed by the person's release.

E. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with § 19.2-124.

(1975, c. 495; 1978, c. 755; 1979, c. 649; 1987, c. 390; 1991, c. 581; 1993, c. 636; 1996, c. 973; 1997, cc. 6, 476; 1999, cc. 829, 846; 2000, c. 797; 2002, cc. 588, 623; 2004, cc. 308, 360, 406, 412, 461, 819, 954, 959; 2005, c. 132; 2006, c. 504; 2007, cc. 134, 386, 745, 923; 2008, c. 596.)

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The lawyers of The Wilson Law Firm have traveled Virginia’s several interstates helping clients just like you - appearing in courts all across the Commonwealth of Virgnia - from Virginia Beach and Norfolk in the southeast, to Wise County in the southwest, all the way up I-81 to Frederick County / Winchester in the northwest, and all the way across Warren County, Fauquier County, Prince William County, and Fairfax County on the way to Arlington County and the City of Alexandria in the northeast. The Wilson Law Firm regularly serves Prince William County, the cities of Manassas and Manassas Park, the towns of Haymarket and Quantico, Fauquier County / Warrenton, Stafford County, Spotsylvania County / Fredericksburg, Loudoun County / Leesburg, Fairfax City, Fairfax County, Arlington County, the City of Alexandria, Culpeper County, Warren County / Front Royal, Clark County / Berryville and Shenandoah County.

The Wilson Law Firm
DUI, Criminal & Traffic Defense ...When Results Matter

We have helped thousands of clients - and we can help you, too.

(703) 361-6100 / (540) 347-4944

Toll Free
(888) DUI-LWYR
(888) 384-5997

The lawyers of The Wilson Law Firm have traveled Virginia’s several interstates helping clients just like you - appearing in courts all across the Commonwealth of Virgnia - from Virginia Beach and Norfolk in the southeast, to Wise County in the southwest, all the way up I-81 to Frederick County / Winchester in the northwest, and all the way across Warren County, Fauquier County, Prince William County, and Fairfax County on the way to Arlington County and the City of Alexandria in the northeast. The Wilson Law Firm regularly serves Prince William County, the cities of Manassas and Manassas Park, the towns of Haymarket and Quantico, Fauquier County / Warrenton, Stafford County, Spotsylvania County / Fredericksburg, Loudoun County / Leesburg, Fairfax City, Fairfax County, Arlington County, the City of Alexandria, Culpeper County, Warren County / Front Royal, Clark County / Berryville and Shenandoah County.