5.2 Pretrial Hearings

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2020 Ed.)

5.2 PRETRIAL HEARINGS

5.201 In General. There are several issues that, by their nature, must be resolved by the court in advance of a trial on the merits of the case. Whether these issues are procedural or substantive, the earlier counsel becomes involved, the more likely these issues can be addressed with some measure of success.

5.202 Bond Hearings. Historically, with the possible exception of habitual offender violations, defendants charged with DWI and other serious traffic offenses have almost always been released from jail pending trial. However, section 19.2-120(B)(10) of the Virginia Code provides, in pertinent part, that a judicial officer shall presume, subject to rebuttal, that defendants charged with any of the following sections of the Virginia Code who have been convicted of previous violations of any combination of those sections three times on different dates in the last five years should not be released pretrial: sections 18.2-36.1 (DUI manslaughter), 18.2-51.4 (DUI maiming, etc.), 18.2-266 (DUI), or 46.2-341.24 (driving a commercial motor vehicle while intoxicated). If the accused has been convicted three or more times on different

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dates of a violation of any combination of these offenses within the past five years, and has been at liberty between each such conviction, he or she is presumed to be ineligible for pretrial release. Section 19.2-124(C) states that a district court must stay the imposition of its order granting bail in cases where there was a presumption against bail if the court receives notice that the Commonwealth is going to appeal the court's decision to the circuit court. The stay is limited to five days unless the defendant requests a hearing outside the five-day period.

Even when the presumption against bail does not exist but the case is aggravated, a magistrate will defer to the court. In these types of cases, second or subsequent offenses, or where the blood alcohol content (BAC) is extremely high, many courts will require the accused to participate in a pretrial monitoring program in addition to the usual bond conditions listed below. Many courts are also requiring SCRAM anklets, which are devices that test alcohol usage. Such measures give the court the assurance that alcohol usage is nonexistent pretrial and that the public's safety is better protected. Counsel is advised that SCRAM can be suggested to the court as a mechanism to allow the client to be released pretrial if the court appears resistant to pretrial release otherwise.

The first determination the magistrate or judge must make is whether the defendant is unlikely to appear for trial; this may be because the defendant has no ties to the community or because the defendant's criminal history includes previous charges for failure to appear. The second determination is whether the client poses a continuing threat to the community at large, which could be said of a driver with multiple DWI convictions or a driver charged with other crimes that would implicate community safety if release was granted.

With these two overarching principals in mind, counsel should work to alleviate the concerns of the court and to lower the bond to a reasonable level. Counsel should also be aware that the client may have other legal problems unrelated to the present traffic offense that could be the cause of the present pretrial detention. For example, a fugitive on outstanding felony charges who is coincidentally picked up for violating a traffic law will be in jail until the traffic trial is completed, and likely beyond that period, without recourse. The magistrate or judge who made the initial determination should have completed Form DC-327, the checklist for bail determination, which should be

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filed with the court. A review of this form could be a helpful starting point for determining why bail was denied or bond set at a high figure. ¹

In all federal courts and in many state courts, a pretrial officer must interview the client before a bond hearing can be held, so counsel must be familiar with the practices of each jurisdiction. ² If this step is required, counsel must alert a pretrial officer of the court and file a bond motion with the court, the prosecutor's office, and the pretrial office to ensure that there will be a hearing when the client appears the next day. If counsel fails to notify the appropriate pretrial office, not only will the court's staff have wasted its time, the client will question counsel's ability to handle the matter.

Whether the client has been incarcerated because the charge is a fourth or subsequent DWI offense or has not been bonded for other reasons, counsel should be prepared to advise the client about the bonding procedures at the first interview and to review the evidence available to rebut any presumption that bond should not be granted. Virginia also has a statutory presumption that no bail will be granted for illegal aliens who are charged with certain crimes, but there are exceptions to this if the United States Immigration and Customs Enforcement agency (ICE) has not guaranteed that it will issue a detainer for all cases. ³ If appropriate, a bond hearing should also be scheduled as expeditiously as possible by notifying the clerk of court, the prosecutor, and, in most courts, the pretrial office where the cases are pending. Bond hearings are among the matters that have statutory priority on the court docket. ⁴ The client will have to be proactively involved in this process because the client's family, friends, or even employer may have to be approached to post or guarantee the appearance bond at the hearing. They may also be called upon to testify to reassure the court that there will be no problems involving alcohol or driving before the matter is heard.

Once bail is set, a party is not required to be readmitted to bail in any subsequent proceeding arising out of the same arrest. ⁵ But section 19.2-130(A) of the Virginia Code permits a court with jurisdiction over the

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proceeding to change the amount of bond or security and also to set other terms of bail that are appropriate to the facts of the...