5.2 Pretrial Hearings

• Library: Defense of Serious Traffic Cases in Virginia (Virginia CLE) (2022 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 some possible exceptions, defendants charged with DWI and other serious traffic offenses have almost always been released from jail pending trial. Indeed, section 19.2-120 of the Virginia Code suggests and encourages bond. The 2021 amendments to the statutes eliminated many provisions regarding the rebuttable presumptions against being admitted to bail and also provided that a judicial officer who is making a bail determination must consider all relevant information including a number of factors now included in the statute. ⁹⁵⁵ Section 19.2-124(C) states that a district court may stay the imposition of its order granting bail for as long as reasonably practicable for an expedited hearing before the next higher court by the Commonwealth. The stay will not be granted if the person has already been admitted to bond.

Even though the presumption against bail does not exist, a magistrate may defer to the court if the case is aggravated. 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. Counsel should be prepared to face these circumstances or argument at the bond hearing and to suggest some more restrictive requirements for the client to put before the court for its consideration. Not only might that assist in obtaining bond, but it also can be worked into arguments to both the prosecutor and the court if the accused is later convicted in some capacity and has successfully complied with all pretrial requirements such as abstinence, treatment, and monitoring.

The judicial officer must consider all relevant information, including (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the commission of the offense; (iii) the weight of the evidence; (iv) the history of the accused or juvenile, including his or her family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment; (v) the person's length of residence in, or other ties to, the community; (vi) the person's record of convictions; (vii) the person's appearance at court proceedings or flight to avoid prosecution or convictions for failure to appear at court proceedings; and (viii) 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, victim, or family or household member as defined in section 16.1-228 of the Virginia Code. ⁹⁵⁶ A client could pose a continuing threat to the community at large as a driver with multiple DWI convictions or a driver charged with other crimes that would implicate community safety if release was granted.

With the statutory requirements 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 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. ⁹⁵⁷

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. ⁹⁵⁸ 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. Although section 19.2-120.1 of the Virginia Code was repealed in 2021, Virginia law enforcement officers still have the authority to enforce the immigration laws of the United States pursuant to section 19.2-81.6, so illegal immigrants who are charged with a felony may be subject to the jurisdiction of the United States Immigration and Customs Enforcement agency (ICE). 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. ⁹⁵⁹ 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...