Bail Procedures
How long may a magistrate detain a person in jail for whom the magistrate has issued a warrant of arrest for being intoxicated in public?
The magistrate may detain the defendant in jail until he reaches a point of sobriety at which time he no longer constitutes a danger to the public or himself, or until a suitable third party is willing and able to take custody of the defendant.
True/False: The term “brought before a magistrate...” includes a personal appearance before the magistrate or an appearance via a two-way audio-visual communication system.
True
The original search warrant affidavit must be filed where and when?
The circuit court clerk’s office within seven days of issuance.
Can embezzlements be charged as a larcenies?
Yes;
Virginia Code § 18.2-111 states: “Proof of embezzlement shall be sufficient to sustain the charge of larceny. Any person convicted hereunder shall be deemed guilty of larceny and may be indicted as for larceny and upon conviction shall be punished as provided in § 18.2-95 or § 18.2-96.”
True/False: Pending DUI counts as a prior offense
True
Why should a magistrate always place the accused under oath prior to beginning a bail determination hearing?
The bail hearing is a judicial hearing;
the defendant is subject to a perjury prosecution for any false statements knowingly made during the hearing. The threat of such a penalty and the formality of the judicial hearing under oath operate to provide a stronger incentive to the accused to provide truthful facts necessary for the magistrate to make a proper risk assessment.
If the stated testimony of a complainant represents that all of the elements of a crime are satisfied, but the magistrate does not believe the complainant’s testimony, should the magistrate issue the warrant or summons? Explain
No. The magistrate must have some basis for determining that the facts are reliable. If the magistrate does not believe the complainant, then the information relayed by the complainant is unreliable
What is lacking in the following statement of probable cause: “Based upon extensive training in recognizing contraband drugs, Officer Brown swears that John Smith possesses heroin in his residence at 1110 N. Broad Road.”
There are no facts from which the magistrate can conclude that the heroin is present. The affiant has stated a conclusion and has not complied with the first prong of the Aguilar test for probable cause.
Violations of Va. Code §§ 18.2-95 (“grand larceny”), 18.2-111 (“embezzlement”), and 18.2-117 (“failure of bailee to return animal, aircraft, vehicle or boat”) share which element?
A wrongful or fraudulent intent
Today, a police officer arrests a subject for DUI (violation of Va. Code § 18.2-266) and refusal of tests (violation of Va. Code § 18.2-268.3). The magistrate finds probable cause for both charges. The subject’s criminal history reveals the following:
03-01-20 CHARGE: DUI (18.2-266) OUTCOME: CONVICTED
The magistrate reviews the criminal history and determines that the appropriatebenhanced penalties for the instant offenses are:
DUI (2nd offense) and refusal (2nd offense)
For what time period may a magistrate restrict contact between household members as a condition of bail?
The Code states that the magistrate may prevent the defendant from having contact with household members for “a specified period of time.” [Va. Code § 19.2-123(A)(2)] In practice, this appears to allow the magistrate to order no contact between household members until the end of court proceedings or until the court decides otherwise.
In what three instances is a person subject to extradition?
A person is subject to extradition if he:
a. is a fugitive from justice; OR
b. has been convicted of a crime and has escaped confinement; OR
c. has broken the terms of his or her bail, probation, or parole
The affidavit states: “Tom Brown reported to your affiant that he had been robbed at knifepoint by John Smith. Brown further states that Smith is hiding out at the residence of Sally Sweet, 110 N. Broad Street, Martinsville, Virginia.” Assuming probable cause is established, may the magistrate issue a search warrant for Ms. Sweet’s residence?
Yes, the magistrate may issue a search warrant for Sweet’s residence. John Smith would be the person to be searched for and seized.
True/False: This is an example of grand larceny.
The defendant breaks and enters a dwelling house and steals $900 from inside. A week later, the defendant breaks and enters a second dwelling house and steals an additional $700 from inside. No one was present in either home at the time of the offenses.
False, this is not a grand larceny offense.
Instead, it is two separate petit larcenies.
Today, a police officer arrests a subject for DUI (violation of Va. Code § 18.2-266) and
refusal of tests (violation of Va. Code § 18.2-268.3). The magistrate finds probable cause for both charges. The subject’s criminal history reveals the following:
03-01-20 CHARGE: Refusal (18.2-268.3) OUTCOME: CONVICTED
The magistrate reviews the criminal history and determines that the appropriate enhanced penalties for the instant offenses are:
DUI (1st offense) and refusal (2nd offense)
Why must a magistrate always require the uncompensated surety who is proving solvency through the use of personal or real property to complete a DC-332, AFFIDAVIT FOR SURETY form?
The DC-332, AFFIDAVIT OF SURETY form requires the surety or sureties to document the value of the personal property or real estate, the encumbrances on such property, the description of the property, and all owners of the property; assists the magistrate in determining the solvency of the proposed surety or sureties and would assist the courts in the collection of a judgment from the surety or sureties should the court forfeit the bond; also preserves evidence should the surety or sureties commit perjury on the affidavit.
In a warrantless arrest case, may the magistrate conduct a probable cause hearing when the arresting officer is present but the accused is not? Explain
Generally not. In regards to warrantless arrests, § 19.2-82 states that the arresting officer must bring the accused before a magistrate in order that the accused and the arresting officer may simultaneously see and speak to the magistrate. The magistrate must examine the arresting officer under oath. If the accused is initially present during the hearing but becomes disruptive, the magistrate may remove him.
The affiant appears before the magistrate and states: “We received an anonymous tip that farmer Smith is growing marijuana on his back twenty acres.” Are these facts sufficient for issuance of a search warrant?
An anonymous tip is not sufficient to meet the probable cause standard.
The sending or receiving of a letter is a required element for violations of which statute?
Va. Code § 18.2-200.1 (“failure to perform promise for construction, etc., in return for advances”)
What is the language for counting refusals?
“Within 10 years prior to the date of the refusal he was found guilty of any of the following: a violation of this section, a violation of § 18.2-266, or a violation of anynoffense listed in subsection E of § 18.2-270 arising out of separate occurrences or incidents“. The defendant must actually have been found guilty of the refusal, DUI, DUI manslaughter or DUI maiming prior to the date of the current refusal.
May a magistrate set bond in dual amounts, e.g., “$1,000.00 cash or $2,000.00 property” in criminal cases? Explain your answer.
It is generally prohibited (because it penalizes the accused; cash is meant to be in lieu of surety). Exception: Follow specific court capias orders under Va. Code § 19.2-130.1 to avoid contempt.
It is a busy day along the border shared by Dinwiddie County and the City of Petersburg. Bob Smith commits an assault and battery in Dinwiddie County. The crime occurred approximately 500 yards from the border. Meanwhile, Phil Jones is arrested for possessing cocaine in the City of Petersburg. The possession also occurred approximately 500 yards from the border. Regarding these offenses, where is venue appropriate?
Venue is appropriate in either Dinwiddie County or the City of Petersburg for the assault and battery committed by Bob Smith. Venue is only appropriate in the City of Petersburg for the possession of cocaine offense committed by Phil Jones.
A police officer presents an affidavit for a search warrant to a magistrate in Albemarle County, Virginia. The affidavit contains sufficient information to find probable cause that a firearm used in a murder in Miami, Florida is located within a residence in Albemarle County. The firearm apparently had been sold to an innocent third party after the crime in Florida. There is no crime alleged to have occurred in Virginia. May the magistrate issue the search warrant?
Yes. The magistrate should issue the search warrant if he finds probable cause. A magistrate may issue a search warrant when the underlying crime occurred out of state. Furthermore, search warrants may be issued for “mere evidence.”
A $35,000 vehicle was stolen two days ago. Today, law enforcement pulls Rob over for speeding while driving the vehicle. When asked why he has the vehicle, Rob states that he wishes to talk to his lawyer. Upon request, a magistrate could appropriately charge Rob with:
Either larceny of the automobile in violation of Va. Code § 18.2-95 (“grand larceny”) OR receiving the automobile knowing it to be stolen in violation of Va. Code § 18.2-108 (“receiving, etc., stolen goods”)
Today, a police officer arrests a subject for DUI (violation of Va. Code § 18.2-266) and refusal of tests (violation of Va. Code § 18.2-268.3). The magistrate finds probable cause for both charges. The subject’s criminal history reveals the following:
1-02-26 CHARGE: Refusal (18.2-268.3) OUTCOME: PENDING
1-02-26 CHARGE: DUI (18.2-266) OUTCOME: PENDING
The magistrate reviews the criminal history and determines that the appropriate enhanced penalties for the instant offenses are:
DUI (2nd offense) and refusal (1st offense)