Non- Bondable Offenses

Non Bondable Offenses

“If I turn myself in, can you bail me out right away?”

A client may ask a bail bondsman this question, and the answer is not always simple. In Virginia, a magistrate sets the first bond. Normally the magistrate has wide discretion over the amount of the bond. However, a few laws create a presumption against bond which limits the magistrate. If there is a presumption against bond, Virginia law requires the magistrate to deny bond. The only exception to this is the rare case where Commonwealth’s Attorney agrees to a bond. This rule means that initially, defendant will get no bond. However, after the magistrate denies bond, the defendant can request a new bond hearing before the judge. The judge is less restricted than the magistrate. Accordingly, the judge will sometimes grant a bond even if there is a presumption against it. In a bond hearing before a judge, the defendant can try to rebut the presumption. If he shows he is not a flight risk or danger, the judge can grant or reduce bond. Accordingly, it is often worthwhile to have a bond hearing with the judge.

Initially, however, the following offenses are non-bondable under Va. Code sections 19.2-102, 19.2-120, and 19.2-102.1:

  1. Serious Violent Crimes. Bond is not available for any crime with a maximum sentence of death or life in prison. A few other specifically listed crimes will also deny bond. Bond is not available for anyone accused of murder, voluntary manslaughter, terrorism, malicious wounding, rape, other felony sexual crimes, robbery, carjacking, abduction, burglary with a deadly weapon, or arson.
  2. Third Felony. Bond is available for many defendants charged with their third felony. However, bond is not available for anyone with two prior serious violent felonies. This presumption against bond also applies when the earlier felonies were in other states.
  3. Serious Other Crimes. No bond is available for defendants charged with some listed crimes. Bond is not available for anyone accused of sexual crimes with children under 15, gang membership, or obstructing justice by threats of force.
  4. Second Serious Drug Crimes. Marijuana crimes do not prevent bond under this rule. No one accused of a non-marijuana drug crime who already was convicted of a non-marijuana drug crime will receive bond. There are some exceptions for other drugs, but for the most part, if the drug is not marijuana, two strikes means no bond.
  5. Firearms Crimes. No one with a gun and non-marijuana drugs will receive bond. No previously convicted felon with a gun will receive bond. Also, no one using a gun on school or church property will receive bond. All three of these offenses require the judge to impose jail time, so the magistrate will not let the defendant out on bond.
  6. Crime While on Bond. When a defendant is out on bond, part of his bond is a requirement that he obey the laws. The defendant must obey the laws before trial, sentencing, and appeal. If the first bond was for a felony and the defendant commits a new one, the magistrate will not give bond for the second felony.
  7. Fourth DUI. If a defendant has been convicted of three DUIs within the past five years, he will not receive bond when charged with a fourth DUI. There are some minor exceptions to this rule.
  8. Second Violation of a Protective Order. If a defendant violated a protective order in the past, he will not get a bond for violating a new protective order.
  9. Third Domestic Assault and Battery. Some defendants may have previously been convicted twice of assaulting a family member. If charged a third time with assaulting a family member, the crime is elevated from a misdemeanor to a felony, and also carries a presumption against bond.  The magistrate will not grant a bond for this third offense.
  10. Illegal Aliens. A defendant who is not legally in the country has more difficulty getting a bond. If he was charged with any violent offense, firearms offense, drug offense, or DUI offense, he will not receive bond. There is an exception for misdemeanor Domestic Assault and Battery, but many other misdemeanors do not receive exceptions. However, if the United States Immigration and Customs Enforcement does not intend to deport the defendant and reimburse Virginia for holding him, this presumption does not apply.

These ten groups summarize the thirteen plus one presumptions in the Virginia Code. However, they shrink even further to create three red flags a bondsman should look for.

The first red flag to look for is a serious felony.

By my count, there are zero misdemeanors with presumptions against bond. The only exception to this is for illegal aliens. Some felonies are worse than others, though. Bondsmen should check if the defendant is charged with one that is more egregious than average. Look especially for violence, guns, and sex crimes.

The second red flag to look for is repeated offenses.

Many offenses in this list are for a second, third, or fourth offense of roughly the same crime. The third red flag to look for is disrespecting the court. The court does not like when the defendant disobeys a previous bond. It also does not like obstructions of justice.  However, a failure to appear in court does not prevent bond.

For all of the offenses listed above, a bail bondsman cannot immediately bail out a defendant. The short answer to the question posed at the start of this article is “No.” The magistrate is required to deny bond, so the defendant will have to wait in jail until a bond hearing before the judge. Turning oneself in, however, may help increase the chance of getting a bond from the judge. Talk with your attorney about what is best for your situation.

Disclaimer: Reading this article does not create an attorney-client relationship with the author. The information in this article is intended as legal information, but not legal advice, and does not take the place of legal advice for your individualized situation. You should not make legal decisions based on the generalized information you read here, and if you need legal advice, you should contact an attorney who can help with your individualized circumstances.

Caleb Routhier, ESQ.