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The Virginia Bail Basics

In Virginia, the initial bail determination is usually conducted by a magistrate shortly after a person is arrested.  A person can be released on personal recognizance, unsecured bond, or secured bond.  Personal recognizance means that a person is informed of their court date and released.  Unsecured bonds require a person to pay a specific sum if they violate the conditions of bail.  Secured bonds require a person to post some sum of money or surety in order to be released on bail.  If the person is held without bail by the magistrate, they will usually be brought before the Court on the next business day in order to be arraigned.  Arraignment is the process by which the person is informed of his charges, his right to counsel and given a trial date.  Thereafter, counsel could move for the person to be granted bail.  The Court is required in most circumstances to obtain a copy of the person’s criminal history prior to conducting a hearing on bail.

A person who is held in custody pending trial shall be admitted to bail unless there is probable cause to believe that (1) the accused will not appear for trial or hearing or as otherwise directed or (2) the accused’s liberty would constitute an unreasonable danger to himself or the public.  Va. Code § 19.2-120.  In determining whether there is probable cause to believe a person is a risk of flight or a danger, the Court examines the person’s criminal history and ties to the community, e.g., length of time in the community, employment, family relations, etc.  It is the Commonwealth’s burden to establish that there is probable cause to believe that the person is a risk of flight or an unreasonable danger to himself or the public. However, a good lawyer will prepare by having evidence to support that the accused is not a risk of flight or a danger to the community or himself.

When a person is charged with a certain violent offense, a presumption arises that no conditions will reasonably assure the appearance of the person or the safety of the public. Va. Code § 19.2-120 (B).  That presumption is subject to rebuttal.  When a presumption arises, it is the accused’s burden to overcome the presumption and show that there are conditions that will reasonably assure the appearance of the person or the safety of the public.

In order to rebut the presumption, a defense attorney must provide the court with evidence that weighs in favor of the factors listed in Va. Code § 19.2-120(E).  Some of those factors include the nature and circumstances of the offense charged, and the history and characteristics of the person e.g., his family ties, employment, length of residence in the community, past conduct, etc.  Specifically, the defense attorney will have to advise the court of the physical address of the residence the person intends to return to if released on bail.

In fixing the terms of bail, the Court can require such terms and conditions as will reasonably assure the appearance and good behavior of the person.  Va. Code § 19.2-121.  The Court can impose a number of conditions including pretrial supervision, travel restrictions, or requiring the person to maintain employment, avoid contact with a witness or victim, comply with curfew, etc.  Va. Code § 19.2-123.

If a judicial officer denies bail, requires excessive bond, or fixes unreasonable terms of recognizance, a person is entitled to appeal that decision.  Va. Code § 19.2-124.

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