Power & Responsibilities
Magistrates have the following powers, as specified by state law:
- Issuing arrest warrants: A law enforcement officer or citizen may appear before a magistrate, seeking to have a person arrested for committing a crime within the city of Roanoke. Before issuing an arrest warrant, a magistrate will use his or her discretion to decide if "probable cause" exists to issue a process. Probable cause is a reasonable belief, based on facts, causing a prudent person to feel the accused committed the offense. To determine probable cause, the magistrate will take a sworn statement from the officer or citizen, and may require the complaint be reduced to writing. Any person falsifying testimony under oath may be prosecuted for perjury. If the magistrate finds likelihood a crime was committed and the accused committed the crime, the magistrate will issue a warrant commanding any law enforcement officer to arrest the accused, bringing him or her to stand trial. The magistrate determines the charge or charges to be filed against the accused, which a judge may later alter at his or her discretion, or at the request of the commonwealth's attorney's office.
- Issuing search warrants: An officer seeking a search warrant must make a complaint to a magistrate, under oath, stating the purpose of the search. 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. The magistrate must state probable cause has been found to believe the property or person constitutes evidence of a crime or tends to show a person has committed a crime.
- Admitting to bail or committing to jail: In most cases, a person arrested by a local or state law enforcement officer must be brought before a magistrate as soon as possible. The magistrate will decide whether the person may be admitted to bail (whether the person may be released from jail pending trial, if certain conditions are met) or immediately committed to jail. 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 the facts, a magistrate is not reasonably sure the accused will appear for trial, the magistrate, in his or her 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. If the magistrate requires a bond, it may be paid to the magistrate in cash or cashier's check, or a bail bondsman may be hired to pay the bond for a percentage fee. If the accused appears at trial, the bond will be returned to the person who paid it.
- Issuing warrants and subpoenas: In addition to arrest warrants, magistrates also have authority to issue summonses. A summons notifies a person an action has been brought against him or her and he or she is required to answer to it at a time and place named in the summons. A summons is normally issued when the individual is charged with a misdemeanor and the magistrate believes the individual will appear in court on the basis of the written promise to appear on the summons. A subpoena is issued by a magistrate to notify witnesses they must appear in court and give testimony at a time and court named in the subpoena. Failure to appear may be considered contempt of court, which is punishable by a fine or imprisonment.
- Issuing civil warrants: Civil cases involve disputes among individuals, corporations, or groups of individuals. The remedy sought normally is to recover money damages or 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 the general district court clerk.
- Accepting 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.
- Issuing emergency custody orders: Magistrates have the authority to issue emergency custody orders upon a finding of probable cause a person is mentally ill and in need of hospitalization. This order authorizes a law enforcement officer to take custody of such a person and transport him or her to a mental health worker for evaluation on his/her mental status. The emergency custody order is valid only for 4 hours from the time of service.
- Issuing civil or criminal temporary mental detention orders: Magistrates, along with other judicial officers, have the authority to issue this type of order upon a finding of probable cause a person is mentally ill and in need of hospitalization. The criteria for issuance of a mental detention order is stricter for a magistrate than for a judge or special justice. Magistrates must receive information and clinical advice from a person skilled in the diagnosis or treatment of mental illness. The mental health worker often obtains this information through an evaluation conducted pursuant to an emergency custody order. Temporary mental detention orders normally allow the detention of a mentally ill person in a mental facility for a period of forty-8 hours, pending a commitment hearing. The forty-8 hour period may be extended for longer periods of time under special situations.
- Issuing 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 the licensed physician attempting to obtain consent from the patient needing medical attention. The magistrate may issue this order upon a probable cause finding 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 the medical standard of care calls for testing, observation, or treatment of the injury or illness within the next twenty-4 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-4 hours after service of the order.
- Issuing emergency protective orders: A law enforcement officer may request this type of order in domestic violence cases. Magistrates or judges may issue this order if they find reasonable grounds to believe a person has committed an assault and battery against a family or household member, and there is probable danger of a further offense. 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 is valid until 5 p.m. on the next business day after issuance.
- Issuing out of service orders: Magistrates must issue out of service orders upon a finding 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-4 hours.