Protecting Your Rights
“How Do I Get out of Here?”
Being Arrested, Making Bail, and Getting Your Car out of Impound
Custody versus Summons
After being arrested for DUI in Virginia, you will either be taken to jail or released on a summons. (A summons is a piece of paper instructing you when and where to appear in court.) Generally, if a driver is arrested for DUI the police will take the driver to the police station or jail for additional testing before taking them into custody.
A person who is arrested and taken into custody for DUI will typically appear before a magistrate. Magistrates perform two functions: 1) the magistrate verifies that the police officer had probable cause to arrest the suspect, and 2) the magistrate sets bail.
In order to prove that the officer had probable cause for the arrest, the arresting officer will sign a statement of the facts called a criminal complaint and deliver it to the magistrate. If the officer can articulate facts that suggest sufficient justification for the arrest, the magistrate will issue an arrest warrant and set bail. If a magistrate sets an excessively high bail or does not provide you with bail then your attorney can file a bond motion and ask a judge to set bond with little or no bail.
Drivers arrested and taken to jail for DUI in Virginia go through an intake process. The medical staff examines them, their property may be taken and inventoried, and they are fingerprinted and photographed.
The intake process can produce important evidence in a DUI trial. The intake photograph can be used to rebut an officer’s accusation that the driver had glassy, bloodshot eyes or that they looked extremely intoxicated. Documentation from the medical intake examination can be used to establish the presence of injuries that affected the driver’s ability to perform field sobriety tests. Keep any documentation given to you at the jail and show it to your attorney as soon as possible.
Contacting Your Attorney
In many jurisdictions in Virginia, defendants will usually get their first chance to call an attorney when they are in jail. Most of the jails in Virginia have telephone access, and the inmates can make collect calls. Most DUI attorney will accept collect calls from clients. Some jails allow free calls to attorney who are registered with the jail.
In Virginia, bail is set by the magistrate and is based on two factors: 1) the likelihood of the defendant appearing in court on the trial date, and 2) the risk to the public if the defendant is released from jail. The magistrate will look at whether the defendant has ever been charged with failure to appear in court, the severity of the current charges, past criminal record, and the driver’s ties to the community. If a magistrate sets an excessively high bail or does not provide you with bail then your DUI attorney can file a bond motion and ask a judge to set bond with little or no bail.
Bail bondsmen will, for a fee, post your bond for you and they can usually expedite your release on bond. Bail bondsmen charge a fee of approximately 10% of the bail to bail someone out of jail. They may also require a cosigner who will pay them back if the defendant does not show up to court. Bail bondsmen will also usually accept collect calls from jail.
When someone is arrested for DUI the police can impound the car if it is not parked in a legitimate parking spot. Sometimes, if the police officer is in a good mood and there is a sober, licensed driver nearby, the officer may allow the sober driver to move the car. The police will usually not park your car for you.
If the car is towed and impounded, it may cost approximately $120 plus $60 per day. The police may also do a limited search of the car if it is impounded. If your car is impounded, make sure to call a DUI attorney immediately and request help getting your car out of impound.
For legal and illegal immigrants, being arrested in Virginia is a particularly terrible experience. Many counties in Virginia aggressively try illegal immigrants who are arrested. If an immigrant is arrested in Virginia, Immigration and Customs Enforcement (ICE) agents may interview them to determine their immigration status. If an ICE agent determines that the immigrant is illegal or deportable, then they may issue a detainer. An ICE detainer is an order requiring the sheriff’s department to hold the immigrant until ICE can come and get him. ICE detainers are the first step in deportation.
If you are an immigrant and are arrested in Virginia, post bail and contact an attorney as soon as physically possible. If an immigrant can post bail fast enough, they may get released before ICE has time to issue a detainer.
Even if an ICE detainer has been issued against an alien, a skilled attorney can sometimes thwart the deportation process by acting quickly. If you are an alien and have been arrested, the worst thing you can do is procrastinate calling an attorney.