Virginia Code no longer has a presumption against bond. Prior to July 1, 2021, the Virginia Code presumed that for certain very serious offenses, a criminal defendant should not be released on bail pending trial.

Now, those presumptions are eliminated, and under the amended Virginia Code Section 19.2-120, all defendants should be given bail unless the judge or magistrate determines that the person is a flight risk, a risk to him or herself, or a risk to the community. The judge’s threshold for this determination is probable cause, which has been defined in Virginia as reasonable grounds for belief, which is not a particularly high standard under the law.

What are some of the things a judge considers when deciding whether to admit a defendant to bail?

  • The nature of the charge itself. Even though everyone is presumed innocent and the charge is merely an allegation, the judge can still consider the prosecution’s contentions. Some criminal charges are understood to be more serious than others (i.e sexual assault vs. reckless driving).
  • he quantity of evidence the Commonwealth has and the strength of their case. The Commonwealth may tell the court or even put on some evidence of what allegedly occurred. Having said that, it is rare that the full weight of the evidence is considered so early in a criminal case. Also, for both tactical reasons and because the defense has likely not been able to conduct its own discovery and investigation, the defendant may have only a limited response to the prosecutor’s contentions at this point.
  • The defendant’s criminal history. This would include any previous failures to appear as well as the number, recency and seriousness of prior convictions.
  • The defendant’s ties to the area. This could include how long he or she has lived there, what kind of family ties they have, how stable their employment is, etc.
  • Any mental health or substance abuse issues. A rehabilitation program or at the least, a sobriety plan and stable living situation, will be of interest to the judge in such cases.

There are ways to help in the presentation of a case for receiving a bond. Judges like to hear from family members with whom the defendant cohabitates or has an otherwise close relationship. Employers can help by showing that they still believe in the defendant as a worker despite the current charges. If substance use is involved, judges appreciate hearing about plans for sobriety and/or treatment. Finally, it can be helpful for the attorney to demonstrate the impact of remaining in jail on the preparation of the case, as well as the detrimental effects on the family.

It is important to note that bail and bond are used almost interchangeably, but they are slightly different. Bail is the actual amount of money a judge sets for someone to be released from custody. Bond is an amount promised (an unsecured bond) or actually paid (secured bond) to the court to ensure that the defendant shows up for trial. If the person shows up for court, the money will be returned. Defendants and their friends and family often hire a bondsman to post this money and to complete the required paperwork. The bondsman often charge a fee that is equal to 10% of the bond amount.

If you have been arrested and are awaiting trial without bail, contact the criminal defense attorneys at Rakness & Wright to help you get out as soon as possible.