How Bail Is Set in Criminal Cases in Virginia

Different Types of Bail That You May Find in VirginiaIf you are arrested for committing a crime in Virginia, the police will take you into custody to be booked and will present you to a magistrate judge for an initial bail review. If the magistrate judge does not set a bond, you will be placed in a jail cell and held until your trial date or until you file a bond motion in the correct court. If the magistrate has decided to hold you, you need to immediately retain an experienced criminal defense attorney who can file a request for bail to be set or reduced, and who can explain to the judge in detail why you should be released. 

Types of Bail in Virginia Criminal Cases

People who are arrested in Virginia have a right to a bail hearing. The magistrate's review often occurs outside the presence of an attorney, and the only people who are typically present are the arresting officer, the accused, and the magistrate. However, a defense attorney has the option—if informed soon enough by the accused—to contact the magistrate and attempt to influence their bail decision. However, if the magistrate does not set bond, then you will remain in jail either until released after trial or sentencing or until your defense attorney files a motion in court.

There are three types of bail set in Virginia criminal cases:

  • Recognizance. A personal recognizance bond is a written agreement between the accused—also called the defendant—and the court where the individual promises to attend all court hearings in his criminal case and follow other rules set by the magistrate. When a magistrate sets this type of bail, he is not requiring the defendant to pay any money in order to be released from jail. If a person is arrested for a minor offense, such as DUI, possession of marijuana, or reckless driving, it is more likely that he would be released on his own recognizance.
     
  • Unsecured bond. An unsecured bond is similar to a personal recognizance bond in that the defendant is released without the payment of any money. He also signs a written agreement promising to attend all court hearings. However, with an unsecured bond, the court sets an amount that must be paid if the accused misses any court hearings or violates other terms of his release.
     
  • Secured bond. In more serious cases, the magistrate can set bail at a certain amount that must be paid in order for the defendant to be released from jail. This is known as a secured bond. Often, the individual or his family will pay the bond through a Virginia bails bondsman. Bondsmen charge varying amounts to post bail on behalf of the accused. If an accused, or his supporters, pays cash on behalf of the accused, they will receive the full amount back from the court at the end of the case—assuming, of course, that the accused lives up to his promises to appear in court and abide by any other restrictions. In contrast, once a fee is paid to the bondsman, they keep that fee regardless of whether the accused abides by the terms and conditions of his bond. Moreover, if the accused fails to abide by those conditions, the bondsman has incentive to seek out the accused and bring him to court, because it is the bondsman's funds that will be forfeited if the accused does not appear in court. 

How Is the Type of Bail and Amount Set in Criminal Cases?

Under Virginia Code § 19.2-120, there is a presumption that bail should be set so the defendant can be released from jail until his trial unless certain exceptions apply. Before conducting the bail hearing, the magistrate should obtain the person’s criminal record if at all possible. Bail should be set unless there is probable cause to believe one of the following:

  • The defendant will not appear for his trial or other court hearings or at other times that are required by the court.
     
  • Or, his freedom will constitute an unreasonable danger to himself or the public.

There are exceptions to the general rule in favor of setting bond that create presumptions that the accused is a flight risk or danger to himself or the public because of the charges brought against him. Some of the crimes where this rebuttable presumption would apply include:

  • Certain violent crimes, such as rape and murder.
     
  • Offenses where the maximum sentence is life in prison or death.
     
  • Certain drug offenses involving a Schedule I or II controlled substance if the maximum sentence is 10 years or more and the person has been convicted of a similar offense in the past, or the person was convicted as a “drug kingpin” as defined under Virginia law.
     
  • Certain firearm offenses with a minimum mandatory sentence.
     
  • Any felony where the person has been convicted of certain violent crimes or a crime with a sentence of life in prison or the death penalty.
     
  • Certain sex crime and child pornography crimes.
     
  • Certain offenses involving street gangs.

In setting the terms of bail and any amount that must be paid, the magistrate will consider a number of factors, such as:

  • Nature and circumstances of the alleged crime.
     
  • Person’s criminal history.
     
  • Person’s physical and mental condition.
     
  • Family ties and length of residence in the area.
     
  • Employment.
     
  • Financial resources.
     
  • Drug or alcohol abuse.
     
  • Whether the individual has missed any court hearings in prior cases.

Contact Our Fairfax Criminal Defense Attorneys for Help

Have you been charged with committing a crime? Are you currently in jail? Our experienced criminal defense attorneys may be able to help get you released on bail and build a strong defense to the charges that you face so that they are dismissed or reduced to a less serious offense. We represent clients facing criminal charges throughout Northern Virginia in both state and federal criminal proceedings. Call our Fairfax office to schedule your free consultation with a member of our legal team.