Responsibilities of the Magistrate

To appreciate the role of a magistrate in the judicial process, it is necessary to understand how magistrates perform their basic duties.

• To issue arrest warrants. Before magistrates can issue an arrest warrant in a criminal case, they must use their discretion to decide if there is "probable cause" to issue a process. Probable cause is a reasonable belief, based on facts, that would cause a prudent person to feel that the accused committed the offense. To determine probable cause, magistrates must decide that there are facts logically indicating that the accused committed an offense and there must be some basis for determining that the facts are reliable. The facts are obtained from the complaint which consists of sworn statements of a citizen or a law enforcement officer relating to the commission of an alleged offense. These statements are made under oath before a magistrate, and the magistrate may require the sworn statements to be reduced to writing and signed. If the magistrate decides that probable cause exists, an arrest warrant will be issued so that the accused may be brought to trial.

• To issue search warrants. When magistrates issue a search warrant, they are giving a law enforcement officer authority to conduct a search to aid an official investigation. The officer seeking the search warrant must make a complaint, under oath, stating the purpose of the search to the magistrate. The complaint must be supported by a written affidavit from the officer. In issuing the search warrant, the magistrate must describe the place to be searched, the property or person to be searched for, and state that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime or tends to show that a person has committed a crime.

• To admit to bail or commit to jail. Bail procedures exist to enable an accused to stay out of jail and to insure that the accused will appear for trial. Magistrates decide the terms of bail by examining certain facts about the accused such as the nature and circumstances of the offense charged, whether a firearm is alleged to have been used in the offense, weight of the evidence, character of the accused, the accused's family ties, employment, financial resources, length of residence in the community, involvement in education, and past record. If possible, the magistrate will release the accused on a written promise to appear in court with or without an unsecured bail bond. If, after examination of these facts, magistrates are not reasonably sure that the accused will appear for trial, the magistrates, in their discretion, will require the execution of a bail bond with surety in a reasonable amount and may impose such other conditions deemed reasonably necessary to insure appearance at trial. The monetary sum of the bail bond can be forfeited as a penalty if the accused fails to appear in court or violates any condition of bail. Under certain circumstances the magistrate may commit the accused to jail without bail pending arraignment.

• To issue warrants and subpoenas. In addition to arrest warrants, magistrates also have authority to issue summonses in misdemeanor cases. The magistrate will issue a summons in lieu of an arrest warrant when the magistrate believes the accused will appear in court as directed in the summons. In executing the summons, the law enforcement officer does not arrest the accused. The accused, however, must appear in court at the time and place specified in the summons. A magistrate issues a subpoena to notify witnesses that they must apear in court at the time and place specified in the subpoena. The court may issue a capias should a person fail to appear in court pursuant either to a summons or a subpoena. The capias requires the arrest of the accused and a subsequent bail hearing before the magistrate. At the hearing triggered by the capias, the court may fine or jail the person for failing to appear.

• To issue civil warrants. Civil cases involve disputes among individuals, corporations, or groups of individuals. The remedy sought normally is to recover money damages or to require a person to complete an agreement or refrain from some activity. Magistrates are authorized by statute to issue civil processes such as civil warrants to collect money owed on unpaid rent; however, most of these matters are handled through the general district court clerk's office. For further information regarding the issuance of these processes, please contact that court.

• To accept prepayment for certain offenses. Magistrates are given the authority to accept prepayments for certain traffic and minor misdemeanor violations such as speeding and unlawful swearing and cursing. When prepayment is allowed, the accused may plead guilty, give up the right to a court hearing, and pay an established fine and court cost through the magistrate. Prepayments made to magistrates must be made in person before the magistrates however, the individual may call the magistrate in advance to determine the exact amount of the prepayment.

• To issue emergency custody orders. Magistrates have the authority to issue emergency custody orders upon a finding of probable cause that a person is mentally ill and in need of hospitalization. This order authorizes law enforcement to take custody of such a person and transport him or her to a mental health professional who then evaluates the mental status of the person. The emergency custody order is valid only for four hours from the time of service. Once served, the professional has four hours in which to conduct the mental examination.

• To issue temporary mental detention orders. Magistrates have the authority to issue detention orders upon finding that a person is mentally ill and in need of hospitalization, and presents an imminent danger to himself or others, or is so seriously mentally ill as to be substantially unable to care for himself, and the person is incapable of volunteering or unwilling to volunteer for treatment. Prior to the magistrate conducting the probable cause hearing for issuance of a temporary detention order, a mental health professional will conduct a mental evaluation of the person. The mental health professional then presents the results of the evaluation to the magistrate during the probable cause hearing. In many cases this evaluation will have resulted from the magistrate's issuance of an emergency custody order. The temporary detention order authorizes the detention of such person in a mental facility for additional evaluation prior to the commitment hearing. A commitment hearing is held by a judge or special justice and must be conducted within forty-eight hours from the execution of the temporary detention order. The forty-eight hours detention may be extended, however, if such time period terminates on a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. In such cases, the commitment hearing will be held the next day court is open.

• Toissue medical emergency temporary detention orders. Persons who refuse medical assistance for serious illnesses or injuries may be required to undergo such assistance upon issuance of this order. Magistrates, as well as judges, may issue these orders after having received testimony from a licensed physician who has attempted to obtain consent from the patient needing medical attention. The magistrate may issue this order upon a probable cause finding that the person needing medical assistance is an adult and is incapable of making an informed decision regarding treatment of a physical or mental disorder. The magistrate also must find that the medical standard of care calls for testing, observation, or treatment of the injury or illness within the next twenty-four hours to prevent death, disability, or a serious irreversible condition. This order allows detention of, and medical assistance to, the person for a period of twenty-four hours after service of the order.

• To issue emergency protective orders. A law enforcement officer may request this type of order in family abuse cases. Magistrates or judges may issue this order if they find reasonable grounds to believe that a person has committed an assault and battery or an act of family abuse against a family or household member and there is probable danger of further acts of family abuse. In this order, the magistrate may: prohibit the abuser from committing further acts of assault and battery; grant possession of the residence to the victim to the exclusion of the abuser; and prohibit all contact between the abuser and the victim. The order expires seventy-two hours after issuance. If the expiration of the 72 hour period occurs at a time the court is not in session, the order is extended until 5 p.m. of the next business day that the juvenile court is in session.

• To issue out of service orders. Magistrates must issue out of service orders upon a finding that a person has operated a commercial motor vehicle while having any measurable amount of alcohol in his or her blood. By issuing this order, the magistrate prohibits the operator from driving a commercial motor vehicle for a period of twenty-four hours.

For more information by call the Virginia State Bar Referral Service toll-free at: 800-552-7977 or 804-775-0808.