State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.
Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.
Citation in Lieu of Arrest
Issuing a citation is presumptive for class 1-4 misdemeanors except for driving while intoxicated, motor vehicle offenses or public drunkenness. Citations can be issued after arrest by the arresting officer. (§ 19.2-74)
Pretrial Release Eligibility
State statute provides a presumption of pretrial release. Pretrial release can be denied for violent offenses enumerated in § 19.2-297.1, offenses punishable by life or death, drug offenses punishable by 10 or more years and the defendant has a prior similar conviction or a conviction as drug kingpin, firearm offenses carrying a mandatory minimum penalty, any felony if the defendant has two or more prior convictions for violent offenses or offenses punishable by life or death, sex assault on a child, aggravated sexual battery, crimes against nature, incest, taking indecent liberties with a child and the defendant has a prior conviction for a similar offense, child pornography, driving under the influence resulting in death or injury and the defendant has three prior convictions for a similar offense, a second or subsequent violation of a protection order, disarming a law enforcement or correctional officer, threatening witnesses related to drug or violent offenses, and illegal aliens charges with offenses enumerated in § 19.2-120.1. (§ 19.2-120, § 19.2-120.1)
Guidance for Setting Release Conditions
Risk assessments are to be used at the court's discretion when determining conditions of release. (§ 19.2-123)
Pretrial Release Conditions
Law allows release on personal recognizance or an unsecured appearance bond. Common conditions of release include: commercial surety, cash deposit, property bond, supervision and additional requirements. Electronic monitoring is authorized for any defendant eligible for pretrial release. A secure bond is required for felony offenses when the defendant has a prior felony conviction and for felony offenses committed while on pretrial release. (§ 19.2-119 & § 19.2-123)
Bail Bond Agent Licensure
The Department of Criminal Justice regulates bail bondsmen. To be licensed, applicants must meet age and prelicense requirements, and pass an exam and a criminal background check. They cannot be employed in a local or regional jail, a sheriff’s office, state or local police department, an office of an attorney for the Commonwealth, the Department of Corrections, the Department of Criminal Justice Services, a local pretrial or community based probation services agency, or be spouses or housemates of the employees listed above. They also cannot be appointed as conservators of the peace. Crimes for which a license can be denied or revoked include all felonies. (Code Ann. § 9.1-185.5)
Bail Bond Agent Business Practices
The premium rate a bail agent can charge is no less than 10 percent and no more than 15 percent. They are prohibited from soliciting business in any court, jail, lock-up or surrounding government property. Bail agents cannot offer legal advice, recommend an attorney or make arrangements with public officials. (§ 9.1-185.8; § 9.1-185.9)
Bail Forfeiture Procedure
After notification of their client’s failure to appear, a bail agent has 60 days to produce the defendant or provide an adequate reason why the defendant did not appear. Courts are instructed to consider absences due to detention elsewhere. Statute addresses standards for remission procedure. (§ 19.2-143)
Recovery agents have similar licensing requirements as bail agents. Associations with bail agents must be disclosed, and recovery agents are required to wear identifying clothing and follow set guidelines when making arrests on private property. (§ 9.1-186.4; § 9.1-186.10; § 9.1-186.12)
Victims’ Rights and Protections
Victims have the right to attend the pretrial release hearing and the right to notification of pretrial release. (§ 19.2-11.01; § 40.1-28.7:2)
Mental health problem-solving courts are authorized diversion programs. (§ 18.2-254.1)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.