Criminal FAQ’s

• What happens if I am arrested?
• If you are arrested for breaking a criminal law, the case is taken before a magistrate who may issue a warrant if necessary and set bond for appearance in court. Certain offenses in the State of Virginia require a court appearance before bond can be set. If the defendant cannot post the bond, or if no bond is allowed, he may be incarcerated pending appearance in court. If bond is posted, he will remain free pending appearance at an arraignment. An arraignment usually occurs shortly after the arrest. The arraignment is held before a judge of the courts. During the arraignment the defendant is formally told what offense he is charged with and is asked about being represented by a lawyer. If counsel is hired prior to the advisement, the attorney can contact the court to set a date and the arraignment is not required.
• Can they use force to arrest me?
• A police officer may use as much force as is necessary to arrest you. After arrest, a police officer will handcuff you for officer safety reasons if you are transported to the police station.
• What is a search warrant?
• A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause and the place to be searched, and the items which are being sought must be clearly identified.
• What is probable cause?
• There is not a bright-line rule establishing precisely what is and what isn`t probable cause. A finding of probable cause requires objective facts indicating that is more likely than not that a crime has been committed. A police officers hunch, with nothing more, will not satisfy the requirements.
• If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
• Unless the officer has a warrant, you have a constitutional right to refuse to allow the officer to search your residence.
• What if I agree to the search?
• If you voluntarily consent to a search of your home, automobile, or person, then the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.

• If a police officer wants to question me, do I have to answer his questions?
• No, you have the right under the 5^th Amendment to remain silent or to refuse to answer questions until an attorney can be present.
• What is the Plain View doctrine?
• Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.
• EXAMPLE: Officer Smith is standing in your doorway talking to you about the weather. While talking, Officer Smith notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Smith can legally seize these items without a search warrant because they are in plain view.
• If I am arrested, can the officer search me?
• Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
• What is a bond?
• Bond is money or other property that is deposited with the court to allow a person to be released from custody pending trial. Bond usually is intended to ensure that a person appears for all court appearances and that a person remain of good behavior, but a court may impose other reasonable conditions upon a person regarding the bond. If all conditions of the bond are not violated, the bond will be released at the end of the case, even if the defendant is ultimately convicted. However, if the defendant violates their bond conditions, the bond will be forfeited to the court and will not be returned. If a bondsman is used to post bail, those amounts paid to the bondsman are non-refundable.
• What happens at a bond hearing?
• A person is brought before a magistrate or judge after they are arrested for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results.
• There are several possible results from the bail hearing:
• A recognizance is granted - This is the defendant’s written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. Failure to abide by bond conditions after recognizance will result in the court assessing the monetary amount of the recognizance against the defendant.
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
• Ineligible for Bail - The defendant is denied a release pending court appearance.
• The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance could result in the issuance of an Order to Show Cause why the release should not be revoked. A show cause hearing may also be issued by a judge for not appearing in court as agreed.
• What happens at an advisement?
• You have the right to be advised without unnecessary delay - usually within a few days after being arrested. You will appear before a judge who will tell you officially of the charges against you. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be reviewed. If you hire an attorney prior to advisement, you will not have to appear for advisement if your attorney contacts the court and resolves all scheduling and bond issues prior to the advisement date.
• What will happen at a preliminary hearing?
• Every person who is charged by warrant is entitled to a preliminary hearing.
• At a preliminary hearing the prosecutor must present evidence and witnesses that prove that it is more probable than not that an offense has been committed by the defendant . The defendant’s attorney may cross-examine witnesses and may present evidence if he or she wishes.
• If the judge makes a finding of probable cause after hearing the evidence, the charge is sent to the grand jury. If the judge does not find probable cause that an offense has been committed, the defendant is discharged and the charge is dismissed. If the defendant is discharged and the charge dismissed after a preliminary hearing, the case is not necessarily over since the prosecutor may still present a charge to the grand jury seeking the return of an indictment.

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