There are four classes of misdemeanors in Virginia.
(See Virginia Code Sections 18.2-9 and 18.2-11).

The punishment for conviction of each is listed below:

1)  Class 1 misdemeanor- confinement in jail for a maximum of 12 months and/or a maximum      fine of $2,500.
2)  Class 2 misdemeanor- confinement in jail for a maximum of 6 months and/or a maximum      fine of $1,000.
3)  Class 3 misdemeanor- maximum fine of $500.
4)  Class 4 misdemeanor- maximum fine of $250.

A Class 1 misdemeanor is the most common and the most serious. They include crimes such as contributing to the delinquency of a minor, assault and battery, telephone threats, petit larceny and licensure violations (fishing, traffic, beer etc.). There are also several serious traffic offenses that are misdemeanors (see DUI, reckless driving and driving on suspended license sections below for more information). In Virginia, a first offense for possession of marijuana is an unclassified misdemeanor with a confinement in jail for a maximum of 30 days and/or a fine of not more than $500. However, a subsequent conviction for marijuana then becomes a Class 1 misdemeanor. (Virginia Code Section 18.2-250.1)

All misdemeanor cases begin in the General District Court. They normally are initiated by issuing of a citation or summons by the arresting officer or a complaint filed by a prosecutor. If you are arrested, the case is taken before a magistrate who will set bond. If the accused can’t post bond, they may be incarcerated pending appearance in court. If you are charged with a misdemeanor, depending on the type and the jurisdiction, your first court date will normally be an arraignment date. The arraignment is usually within 48 hours after being arrested. At an arraignment the judge will simply notify the accused of the charge against them, set a trial date and determine whether the accused wants to waive their right to an attorney or retain one on their own or have the court appoint counsel. If you are already in jail, the court will decide whether to release you on bond on your arraignment date. However, you can always have your attorney do a motion before your arraignment to have your bond set or reduce the bond set by the magistrate. Whether a judge will set or reduce the bond will depend on the severity of the crime and the likelihood that the accused will appear to court for trial. (See discussion of bail below)

On the trial date, the prosecutor will present evidence to the judge which may include witnesses and documents. The prosecutor carries the burden of proof beyond a reasonable doubt. This means that in order for the judge to find you guilty, the evidence presented by the prosecutor must be sufficient to prove that the accused is guilty beyond a reasonable doubt. If the accused is found guilty, they have the right to appeal the case to the Circuit Court. The appeal must be filed within 10 days of the final trial date. The case will be heard over in the Circuit Court, meaning you basically will get a new trial. You also can ask for a rehearing in the General District Court if filed within 30 days of the final trial date.

There are six classes of felonies in Virginia.
(See Virginia Code Sections 18.2-9 and 18.2-10).

The punishment for conviction of each is listed below:

1)  Class 1 felony - death, if the person was 16 years of age or older at the time of the offense      and was determined not to be mentally retarded, or life imprisonment and possibly a      maximum fine of $100,000.
2)  Class 2 felony - years to life in prison and possibly a maximum fine of $100,000.
3)  Class 3 felony - 5 to 20 years imprisonment and possibly a maximum fine of $100,000.
4)  Class 4 felony - 2 to 10 years imprisonment and possibly a maximum fine of $100,000.
5) Class 5 felony - 1 to 10 years imprisonment, or in discretion of the judge or jury,      confinement in jail for a maximum of 12 months and/or a maximum fine of $2500.
6)  Class 6 felony - 1 to 5 years imprisonment, or in discretion of the judge or jury, confinement      in jail for a maximum of 12 months and/or a maximum fine of $2500.

Some examples of felonies are murder, rape, serious drug charges (schedule I or II drug), robbery, and grand larceny. The main distinction between petit larceny and grand larceny is the value of the item taken. Petit larceny is larceny from the person of another of money or other thing of value of less than $5, or simple larceny not from the person of another of goods and chattels of the value of less than $200 (Virginia Code Section 18.2-96). Grand larceny is larceny from the person of another of money or other thing of value of $5 or more, or simple larceny not from the person of another of goods and chattels of the value of $200 or more, or simple larceny not from the person of another of any firearm, regardless of the firearm’s value. (Virginia Code Section 18.2-95)

Most felonies cases begin in General District Court; however, because the court does not have jurisdiction to resolve felony cases, only the preliminary hearing is heard in general district court. The final resolution of a felony case is in Circuit Court. If probable cause has not already been determined, a preliminary hearing must be held within a reasonable time. The preliminary hearing provides the accused an opportunity to hear a portion of the case against them. The prosecutor will present enough evidence of the case for the judge to decide whether there is sufficient evidence or probable cause that the accused has been properly charged. The accused may cross-examine witnesses and may present evidence if they wish. If the general district judge decides that there is enough evidence, he will certify the case to the Circuit Court where a Grand Jury will review the evidence. The grand jury is a group of people called together by the prosecutor to examine evidence of suspected criminal activity. The accused does not have a right to be present and confront witnesses at this proceeding. The prosecutor basically advises the grand jury and they will ultimately decide whether there is enough evidence to put the accused on trial for the crime. If so, the grand jury will return an indictment for the offense. Like a warrant, an indictment is the charging document used in Circuit Court.

As in general district court, the accused will be arraigned for the felony charge in Circuit Court and the accused may either set a date for trial or for entering of a guilty plea. If the accused wants to enter a guilty plea the judge will set a date for the disposition hearing. At that hearing the judge will first advise the accused of their rights before accepting the guilty plea. If there was no plea agreement made with the prosecutor, then the judge will have to set another date for sentencing. The sentence refers to the punishment for the crime.

If the accused wants to go to trial, they can either accept or waive a jury. The decision of whether to waive a jury trial for a bench trial is an important decision that should be made after consultation with an experienced attorney. The advantage of a jury trial is that twelve people will have to find you guilty versus the judge sitting alone. The disadvantage to a jury trial is that if they do find you guilty, they will make sentencing recommendations to the judge that he will usually follow. Unlike a judge, the jury cannot suspend time. On the other hand, if the judge in a bench trial finds you guilty, he has the discretion when sentencing to suspend jail time. Thus, the case should be strategically analyzed before deciding whether to waive a jury trial.

If the accused is convicted in Circuit Court, they can appeal to the Court of Appeals. The notice of appeal to the Court of Appeals has to be filed within 30 days of the final trial date. Unlike an appeal from General District Court, you do not get a new hearing in the Court of Appeals. They will not hear any new evidence, but will review the record from the previous proceeding for legal errors.

See statute below:

§ 18.2-266. Driving motor vehicle, engine, etc., while intoxicated, etc.

It shall be unlawful for any person to drive or operate any motor vehicle, engine or train (i) while such person has a blood alcohol concentration of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath as indicated by a chemical test administered as provided in this article, (ii) while such person is under the influence of alcohol, (iii) while such person is under the influence of any narcotic drug or any other self-administered intoxicant or drug of whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, (iv) while such person is under the combined influence of alcohol and any drug or drugs to a degree which impairs his ability to drive or operate any motor vehicle, engine or train safely, or (v) while such person has a blood concentration of any of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c )0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood. A charge alleging a violation of this section shall support a conviction under clauses (i),(ii),(iii),(iv) or (v).. For the purposes of this section, the term “motor vehicle” includes mopeds, while operated on the public highways or this Commonwealth

In Virginia, a DUI is a serious offense with serious penalties. It is a class 1 misdemeanor and a person convicted of DUI could get possible jail time. To be convicted of a DUI, a person must have been “operating” a motor vehicle at the time of intoxication. As the statute states, driving with a blood alcohol concentration (BAC) of 0.08 or more creates a presumption that at the time of operating the vehicle, the person was under the influence. The blood alcohol level is the percentage of alcohol found in the bloodstream after consuming alcoholic beverages. Narcotic drugs or any combination of drug and alcohol may also result in a DUI charge if they impair the ability to drive or operate a motor vehicle. If the person charged is under 21 years of age, the penalty is different. (Virginia Code Section 18.2-266.1)

In order for the police officer to place a person under arrest for DUI, he has to have probable cause. The officer will normally observe the person’s appearance and behavior. He will usually conduct field sobriety tests when he stop the person to establish probable cause for an arrest.

Field sobriety tests include the following:

1) Touching the tip of the nose with the forefinger;

2) One leg stand;

3) Reciting the alphabet ;

4) walking a straight line, heal-to-toe in one direction and turning around and walking back; and

5) counting, usually backwards.

The officer may also ask the person to blow into a portable device to measure the blood alcohol content while at the scene. The results of this test, along with the field sobriety tests and any other observations will be used to develop probable cause for the arrest. Usually after the person is placed under arrest, he will be taken to the police station where he will be asked to blow into a machine called the Intoxilyzer Model 5000. This machine will measure the blood alcohol content of the breath sample. Once the test is finished, a certificate will be generated indicating the persons BAC. This certificate is called the Certificate of Analysis and will be used by the prosecutor at trial. It is not smart to refuse to blow into the Intoxilyzer Model 5000 at the station because you will be charged with refusal in addition to DUI.

At trial, the prosecutor (or police officer depending on the jurisdiction) has the burden of proving its case against the accused beyond a reasonable doubt. The government will normally prove their case against the accused by having the officer testify to driver’s appearance and coordination and driving behavior when stopped. Also, the prosecutor will normally place emphasis on the Certificate of Analysis. This is because a person with a BAC of .08 or more is presumed to be under the influence.

This presumption can be rebutted however as noted in the Code section below:

§ 18.2-269. Presumptions from alcohol content of blood.

A. In any prosecution for a violation of §18.2-36.1 or clause (ii), (iii) or (iv) of §18.2-266), or any similar ordinance, the amount of alcohol in the blood of the accused at the time of the alleged offense as indicated by a chemical analysis of a sample of the accused’s blood or breath to determine the alcohol or drug content of his blood in accordance with the provisions of §§18.2-268.1 through 18.2-268.12 shall give rise to the following rebuttable presumptions:

(1) If there was at the time 0.05 percent or less by weight by volume of alcohol in the accused’s blood or 0.05 grams or less per 210 liters of the accused’s breath, it shall be presumed that the accused was not under the influence of alcohol intoxicants at the time of the alleged offense;

(2) If there was at that time in excess of 0.05 percent but less than 0.08 percent by weight by volume of alcohol in the accused’s blood or 0.05 grams but less than 0.08 grams per 210 liters of the accused’s breath, such facts shall not give rise to any presumption that the accused was or was not under the influence of alcohol intoxicants at the time of the alleged offense, but such facts may be considered with other competent evidence in determining the guilt or innocence of the accused; or

(3) If there was at that time 0.08 percent or more by weight by volume of alcohol in the accused’s blood or 0.08 grams or more per 210 liters of the accused’s breath, it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense; or (4) If there was at that time an amount of the following substances at a level that is equal to or greater than: (a) 0.02 milligrams of cocaine per liter of blood, (b) 0.1 milligrams of methamphetamine per liter of blood, (c) 0.01 milligrams of phencyclidine per liter of blood, or (d) 0.1 milligrams of 3,4-methylenedioxymethamphetamine per liter of blood, it shall be presumed that the accused was under the influence of drugs at the time of the alleged offense to a degree which impairs his ability to drive or operate a motor vehicle, engine or train safely.

The presumption can be rebutted by producing evidence that the accused was sober. This can be done by use of experts in the field of toxicology. Also, the Certificate of Analysis can be objected to if the requirements listed in Virginia Code Section 18.2-268.9 are not met. For example, the person performing the test must possess a valid license to conduct such tests and the machine on which the test is conducted must be tested for accuracy every six months. If after hearing the evidence, the judge finds that the evidence was sufficient to support a finding of guilty, there are certain conditions and restrictions that the judge must impose. The penalty will depend on the individuals BAC and are enhanced with each subsequent conviction for DUI. See Virginia Code Section 18.2-270. Basically a first time offense is punishable by up to one year in jail and a mandatory minimum fine of $250. However, if the person’s BAC was at least 0.15, but not more than 0.20, they will be confined to jail for an additional mandatory minimum period of five days. If the level was more than 0.20, then the person will be confined to jail for an additional mandatory minimum period of 10 days. “Mandatory minimum” means that the court must impose the entire term of confinement and the full amount of the fine and the court cannot suspend in full or in part any punishment described as mandatory minimum punishment.

The Code also mandates that for a first offense that the defendant enters into ASAP (Alcohol Safety Action Program - See Virginia Code Section 18.2-271.1). Also, the defendant’s driver’s license will be revoked for a period of one year from the date of judgment (See Virginia Code Section 18.2-271). In some cases, the defendant’s vehicle will have to be equipped with a certified ignition interlock system for not less than six months. An ignition interlock system is a device that “ (i) connects a motor vehicle ignition system to an analyzer that measures a driver’s blood alcohol content; (ii) prevents a motor vehicle ignition from starting if a driver’s blood alcohol content exceeds 0.025 percent; and (iii) is equipped with the ability to perform a rolling retest and to electronically log the blood alcohol content during ignition, attempted ignition and rolling retest”.
(See Virginia Code Section 18.2-270.1)

Whenever a person’s driver’s license has been suspended or revoked, the judge may issue a restricted license to the person in certain circumstances.

A restricted license could be issued for the following purposes:

1) travel to and from place of employment;

2) travel to and from an alcohol rehabilitation or safety action program;

3) travel during the hours of such person’s employment if the operation of a motor vehicle is a      necessary incident of such employment;

4) travel to and from school if such person is a student, upon proper written verification to the court      that such person is enrolled in a continuing program of education;

5) travel for health care services, including medically necessary transportation of an elderly parent      with a serious medical problem upon verification of need by a licensed health professional;

6) travel necessary to transport a minor child under the care of such person to and from school, day      care, and facilities housing medical service providers;

7) travel to and from court-ordered visitation with a child of such person;

8) travel to a screening, evaluation and education program;

9) or travel to and from court appearances in which the person is a subpoenaed witness or a party      and appointments with his probation officer and to and from any programs required by the courts      as a condition of probation.

See Virginia Code Section 46.2-301

There are several reasons why a person’s license may be suspended. It may be suspended for failure to pay court fines or it may be administratively suspended by the Department of Motor Vehicles (DMV). The reason for the suspension is not a factor the judge will consider when determining guilt, but they may determine it in the sentencing phase. If your license is suspended, the DMV will usually send you a notice via certified mail. This notice is used a prima facie evidence that the person knew their license was suspended. However, it is essential to review the DMV transcript/record indicating notice to ensure that it was sent. If the defendant did not have knowledge of the suspension, then this is a defense.

If convicted, a first or second offense is a Class 1 misdemeanor. A third or subsequent offense is a Class 1 misdemeanor punishable by a minimum, mandatory term of confinement in jail for ten days which cannot be suspended in whole or in part. However, if the person operated the motor vehicle in a situation of extreme emergency to save life or limb, the court is not required to impose a minimum, mandatory term of confinement. In addition, the person’s driver’s license will be suspended for the same period that it had previously been suspended or revoked (or up to 90 days if the suspension was indefinite).

See Virginia Code Section 46.2-852

There are many forms of reckless driving in Virginia. The most common form is driving exceeding the speed limit at a speed in excess of twenty miles per hour or more.

This offense is codified in Virginia Code Section 46.2-862:

Exceeding speed limit- A person shall be guilty of reckless driving who drives a motor vehicle on the highways in the Commonwealth (i) at a speed of twenty miles per hour or more in excess of the applicable maximum speed limit where the applicable speed limit is thirty miles per hour or less, (ii) at a speed of sixty miles per hour or more where the applicable maximum speed limit is thirty-five miles per hour, (iii) at a speed or twenty miles per hour or more in excess of the applicable maximum speed limits where the applicable maximum speed limit is forty miles per hour or more, or (iv) in excess of eighty miles per hour regardless of the applicable maximum speed limit.

Also, anyone who drives in a manner that generally endangers others is considered to be driving reckless.

See Virginia Code Section 46.2-852 below:

Reckless driving; general rule- Irrespective of the maximum speeds permitted by law, any person who drives a vehicle on any highway recklessly or at a speed or in a manner so as to endanger the life, limb, or property of any person shall be guilty of reckless driving.

Another form of reckless driving is passing a school bus improperly. See Virginia Code Section 46.2-859. Also, driving a vehicle with faulty brakes is a form of reckless driving.

See Virginia Code Section 46.2-853 below:

Driving vehicle which is not under control; faulty brakes- A person shall be guilty of reckless driving who drives a vehicle which is not under proper control or which has inadequate or improperly adjusted brakes on any highway in the Commonwealth.

Another form of reckless driving and one that has a serious penalty is racing.

See Virginia Code Section 46.2-865 below:

A person who engages in a race between two or more vehicles on the highways in the Commonwealth or on any driveway or premises of a church, school, recreational facility, or business property open to the public in the Commonwealth shall be guilty of reckless driving, unless authorized by the owner of the property or his agent. When any person is convicted of reckless driving under this section, in addition to any other penalties provided by law the driver’s license of such person shall be suspended by the court for a period of not less than six months nor more than two years. In case of conviction the court shall order the surrender of the license to the court where it shall be disposed of in accordance with the provisions of § 46.2-398.

Failure to yield the right-of-way when merging onto the highway is considered reckless driving.

See Virginia Code Section 46.2-863 below:

Failure to yield right-of-way- A person shall be guilty of reckless driving who fails to bring his vehicle to a stop immediately before entering a highway from a side road when there is traffic approaching on such highway within 500 feet of such point of entrance, unless (i) a “Yield Right-of-Way” sign is posted or (ii) where such sign is posted, fails, upon entering such highway, to yield the right-of-way to the driver of a vehicle approaching on such highway from either direction.

There are too many different forms of reckless driving to list them all in this summary. However, to get a complete understanding of reckless driving it would be beneficial to thoroughly review all the sections listed in the Virginia Code on this topic. In Virginia, reckless driving is a Class 1 misdemeanor. However, if the person convicted of reckless driving was driving without a valid license due to suspension or revocation and his reckless driving caused the death of another, it will be considered a Class 6 felony. See Virginia Code Section 46.2-868. You can be arrested and have your car impounded at the discretion of the officer; however, most will just have you sign the summons and require that you show up at court. Reckless driving also carries the possibility of suspension of driving privilege for up to six months. The court in its discretion can allow the person to be issued a restricted permit to operate a motor vehicle during the time of suspension. See Virginia Code Section 46.2-392.

A reckless driving conviction can have many other significant impacts on the life of a person. A conviction carries with it six demerits points which will be reflected on your driving record. These are negative points assessed upon conviction of various offenses by DMV. DMV can suspend your driving privileges because of too many points/tickets. This suspension is in addition to the six months that the judge can suspend your driving privilege. A reckless driving charge can also effect your career, and auto insurance coverage. If the person convicted has a commercial driver’s license, it can be disqualified for a period of time. See Virginia Code Section 46.2-341.20.

It is important to have competent representation because it may be possible that there is a defense to the charge. Sometimes the charge can be lowered to the lesser included offense of “improper driving” which is a non-criminal offense.

See statute below:

§ 46.2-869- Improper driving; penalty - Notwitstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.

There are also other mitigating factors and defenses that the court will consider in reducing the charge. These factors include a clean driving record; if person obtains a speedmeter calibration documenting speedometer issue; whether there was an emergency situation; pacing issues; and radar/lidar calibration problems. There are many other factors that could be addressed depending on the form of reckless driving the person is charged with. It is important to discuss these issues with an attorney before pleading guilty. It could make a world of difference in your case.

See Virginia Code Section 46.2-355.1-46.2-360

A. Upon receiving notification of a second conviction entered on or after July 1, 1999, for driving while the offender’s license, permit or privilege to drive is suspended or revoked in violation of §46.2-301, the Commissioner shall notify such person that he shall report to a Virginia Alcohol Safety Action Program within sixty days of the date of such notice for an intervention.

A person who has been determined or adjudicated a habitual offender will not be allowed to have a license to drive a motor vehicle in Virginia for a period of ten years from the date of the final order or the notice by the Commissioner of finding the person to be an habitual offender. The privilege to drive will have to be restored by a court order. This means that even though ten years has passed, a person will still be considered a habitual offender until the privilege to drive is restored by the court. However, in some cases, a person may petition the court for restoration of the privilege to drive after five years and if the court finds that the person does not constitute a threat to the safety and welfare of himself or others with regards to driving a vehicle, they may restore the driving privilege or issue a restricted license to drive.

Delinquency is the violation of any local, state, or federal law, or the violation of a court order. See Virginia Code Section 16.1-228. The juvenile and domestic relations court hears charges against juveniles that would be crimes if committed by an adult, including misdemeanors, felonies, traffic violations, etc. However, if a juvenile is tried as an adult or treated as an adult, the juvenile court no longer will have jurisdiction to handle the youth as a juvenile for the criminal acts and the trial will be heard in circuit court. See Virginia Code Section 16.1-269.6. In some cases, juveniles 14 and older who are accused of serious crimes will automatically be transferred to circuit court to be tried as if they were adults. The crimes that require automatic transfer to adult court are: 1) murder (§§ 18.2-31, 18.1-32, 18.2-40) and 2) aggravated malicious wounding (§18.2-51.2). In other cases involving certain serious crimes, the prosecutor has the discretion of whether to try the child as an adult: 1) murder (§18.2-33); 2) felonious injury by mob (§18.2-41); 3) abduction (§18.2-48); 4) malicious wounding (§18.2-51); 5) malicious wounding of a law-enforcement officer (§18.2-51.1); 6) poisoning (§18.2-54.1); 7) (adulteration of products (§18.2-54.1); 8) robbery (§18.2-58); 9) carjacking (§18.2-58.1); 10) rape (§18.2-61); 11) forcible sodomy (§18.2-67.1); 12) object sexual penetration (§18.2-67.2). All other felony crimes must be transferred by motion of the prosecutor. In determining whether to transfer the case to circuit court the judge will consider the seriousness of the charge, the juvenile’s age, the number of charges and the juvenile’s prior record.
See Virginia Code Section 16.1-269.1A.

There are two different types of CHINS cases that can be brought before the court. The first is a “Child in Need of Services” petition. The juvenile court has jurisdiction over any “child whose behavior, conduct or condition presents or results in a serious threat to the well-being and physical safety of the child. See Virginia Code Section 16.1-288. The conduct of the child must present a clear and substantial danger to the child’s life or health or there must be a need for treatment or services not being received and the intervention of the court must be essential to provide those services or treatment. The second is a “Child in Need of Supervision” petition. A child in need of supervision is defined as one who is habitually truant from school or who has habitually run away from home. See Virginia Code Section 16.1-288. The child’s conduct must present a clear and substantial danger to the child’s life or health, and the child or family must be in need of treatment, rehabilitation or services not being received, and the court’s intervention has to be essential to provide those services.

Once the juvenile is referred to the court, a decision is made by the intake officer as to whether a petition will be filed, the charges dropped, or the case handled informally. If the case is handled informally, the probation staff can use a behavioral contract in place of a formal adjudication. The behavioral contract may include such things as a curfew, community service or substance abuse treatment. If the conditions are met, then the charges are normally dropped. If a formal petition is filed, the intake staff will decide whether to detain the juvenile pending hearing. This is based on safety and risk of flight issues. If the juvenile is detained, a hearing will take place within 24 to 72 hours.

Most juvenile court cases are conducted in private and the public is not allowed into the courtroom to watch the proceedings. This does not apply when the juvenile is tried as an adult. Also, all records pertaining to juveniles are kept confidential with limited access to just a few specific persons. However, this does not apply if the child was 14 or older at the time of the offense and the crime would have been a felony if committed by adult. See Virginia Code Section 16.1-305. In juvenile court, a judge, rather than a jury will hear the case. A hearing in juvenile court is called an adjudicatory hearing. If the juvenile is found to be delinquent, the sentencing phase for a juvenile is referred to as the disposition hearing. The judge has many remedies or options in determining the sentence. They can order that the juvenile enroll in boot camp, incarceration in a youth prison or placement in a group home or residential treatment center, or probation or release.

Bail is the pretrial release of an accused from custody upon the terms and conditions of a magistrate or judge. Bond is money or other property that is deposited with the court to ensure that the defendant will return to court or the required date. If the person shows up to court as required, the bond will be returned at the end of the case, even if the person is convicted. If the defendant does not come to court when required or in any way violates the conditions of bail, then the bond will be forfeited to the court and will not be returned.

At a hearing to determine the issue of bail, release or detention, the judge or magistrate will base the decision on whether there is probable cause to believe that the person will not appear for trial on the date set or that the person’s liberty will constitute an unreasonable danger to himself or the public. For certain crimes such as violent crimes and crimes punishable by life imprisonment or death, there is a rebuttable presumption that the person will not appear. However, even with those types of crimes, the court have to consider the following factors: 1) the nature and circumstances of the offense charged; 2) the history 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 gang, 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. See Virginia Code Section 19.2-120

The judge or magistrate can decide on four different options pertaining to bail. 1) Recognizance- this is the defendant’s written promise to appear in court on the required date and to abide by the terms set by the magistrate or judge. No bondsman or cash deposit or security is required; 2) Unsecured bond- this release pending the court date is based on defendant’s written agreement to appear on the court date and to abide by the conditions set by the magistrate or judge. The defendant agrees to forfeit money to the court if they do not appear in court on the date set; 3) Secured bond- secured by a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the set date and will abide by the conditions of the release; 4) ineligible for bail- the defendant is denied a release pending the court date.

A plea bargain is an agreement between the accused and the prosecutor that in exchange for the accused person admitting guilt without going to trial, the prosecutor and the person’s attorney will negotiate a settlement. Of course, the client does not have to agree to plea bargain if the negotiated settlement is not beneficial. If the client does not agree, he can plead guilty before the judge or go to trial. If the client agrees with the negotiated settlement, then the agreement will have to be presented to the judge for approval. If the judge agrees, then the agreement will become a court order.

The determination of whether to take a plea bargain or whether to take the case to trial is an important decision that should be carefully considered with one’s counsel. The attorney will review the prosecutions case against the accused and whether the person has a defense. The client should also be made aware that by pleading guilty, they will be waiving a lot of their
protected rights under the Constitution.