Bail, Bond or Both? Things to Know Before You File Your Bond Motion
This article, Written By Anthony Shin, PLLC, first appeared here and we have republished it below for your convenience.
I can’t tell you how many lawyers I have come across that do not know the distinction between Bail v. Bond, or Recognizance v. Unsecured Bond, etc. Terminology is the first thing to understand before arguing a Bond Motion, the next things to know are… (read more to find out!)
Terminology (Virginia Code 19.2-119)
“Bail” – is the ACTUAL RELEASE of a person from custody upon those terms and conditions specified by order of an appropriate judicial officer (i.e. a person is granted bond and then is given bail/release from custody) “Bond” – posting of a person or his surety of a written promise to pay a specific sum, secured or unsecured, ordered by an appropriate judicial officer as a condition of bail to assure performance of the terms and conditions contained in the recognizance. “Recognizance” (DC-330) – signed commitment by a person to appear in court as directed and to adhere to any other terms ordered by an appropriate judicial officer as a condition of bail (money amount is not even required…see Unsecured Bond for clarification) “Unsecured Bond” (i.e. “P.R. Bond”, “recognized on bond”, “personal recognizance bond”) – bond in which a specific dollar amount of bond is ordered and fully suspended on the condition that one will appear in court. (Ex: A PR Bond happens when a judge tells and Defendant to sign papers to promise to appear in court; an unsecured bond happens when a judge orders a $1,000.00 bond, but does not require the defendant to post anything. PR Bond and Unsecured Bond is very similar). “Secured Bond” – bond in which court sets a specific dollar amount for bond, of which 10% must be posted to get out of jail.
Bail Hearing Requirement
All persons are entitled to an immediate hearing before a judge for a bail determination under Virginia Code 8.01-508, 19.2-76, 19.2-80, 19.2-82, 19.2-150, 44-41.1, and 19.2-234. “Can I get bond the same day?” In theory, no…in real life, possibly. If an attorney can work an agreed Order to submit to a judges chambers, it is possible to get bond the same day.
Factors in Determining Strength of Bail Argument
Under Virginia Code 19.2-121, the following are factors for bail: the nature and circumstances of the offense whether a firearm is alleged to have been used in the offense the weight of the evidence the financial resources of the accused or juvenile and his ability to pay bond the character of the accused or juvenile including his family ties, employment or involvement in education his length of residence in the community his record of convictions his appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim; and any other information available which the court considers relevant to the determination of whether the accused or juvenile is unlikely to appear for court proceedings.
What are the Chances of Getting Bail?
Let’s look at a few things before we answer this question. Generally, under Virginia Code 19.2-120, a magistrate MUST set bail UNLESS the magistrate believes (1) the defendant will not appear in court for his next trial/hearing OR (2) the defendant is a danger to the community. Additionally, under Virginia Code 19.2-121, the judge must consider the criminal history of the accused. There is a presumption AGAINST bond for the following 13 types of offenses: 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 18.2-60.4 or a substantially similar offense under the laws of any state or the United States; 12. A violation of subsection B of 18.2-57.2; or 13. A violation of subsection C of 18.2-460 charging the use of threats of bodily harm or force to knowingly attempt to intimidate or impede a witness. A judge MUST issue a secured bond if the defendant was arrested on a felony AND he has previously been convicted of a felony OR he is currently on bond for an unrelated arrest (a person on recognizance is not “on bond”, a person with unsecured bond is “on bond”) OR he is currently on probation or parole. (Virginia Code 19.2-123). If a defendant qualifies for a secured bond, he can be given recognizance or a unsecured bond ONLY if the prosecutor agrees. Having said everything above, the success of bond is quite complicated and requires a detailed analysis of many conditions and factors.
Critical Details for Secured Bonds
Virginia Code 19.2-123 gives the defendant 2 ways to meet secured bond obligations. He can use cash to secure the bond, OR he can use a surety to secure the bond. Neither the court, nor clerk, nor magistrate can dictate the defendant’s choice. Virginia Code 19.2-123(A)(3). Section 123 allows a judicial officer to impose any other conditions but not dictate how a defendant may choose to post bond. Therefore, a judicial officer may not mandate a “CASH ONLY” bond. Virginia Code 123, Bretz v. Commonwealth, No. 0355-89-3 (Ct. of Appeals April 5, 1989), overturning a circuit court judge’s order requiring a CASH-ONLY bond in a criminal case.