2020 Legislative Update from LeCruise Law – New Virginia Laws Go into Effect in this Summer
The following legislation has been approved during the 2020 Virginia General Assembly Session and will become effective laws on July 1, 2020.
The Virginia Indigent Defense Commission (VIDC) has published very useful summaries of these new laws and here are the most important changes going into effect.
Bail and Bond
Admission to Bail – Rebuttable Presumptions Against Bail
Eliminates the provision prohibiting a magistrate, clerk, or deputy clerk of a district court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of a Commonwealth’s Attorney.
Department of Corrections
Prisoners Obtaining Identification Documentation Upon Release
Requires the Department of Corrections and the sheriff, jail superintendent, or other jail administrator of a local correctional facility to provide the assistance necessary for any prisoner who does not already possess a government-issued identification card to apply for and obtain such identification.
State Correctional Facilities – Treatment of Prisoners Known to Be Pregnant
Requires the director of the Department of Corrections, after accounting for safety, security, and operational factors, to place prisoners who are known primary caretakers of minor children in a facility as close as possible to such children.
Crimes and Penalties
Increases from $500 to $1000 the threshold amount of money taken or value of goods taken at which the crime arises from misdemeanor petit larceny to felony grand larceny.
Unauthorized Use of Electronic Tracking Devices
Increases from a Class 3 misdemeanor to a Class 1 misdemeanor the punishment for a person who installs or places an electronic tracking device through intentionally deceptive means and without consent, or causes an electronic tracking device to be installed or placed through intentionally deceptive means and without consent, and uses such device to track the location of any person.
Profane Swearing in Public
Removes the crime of profane swearing in public from the Virginia Criminal Code, which is currently punishable as a misdemeanor offense.
Expands the crime of computer trespass to provide that the prohibited actions that constitute computer trespass are criminalized if done through intentionally deceptive means and without authority.
Audiovisual Recording of Custodial Interrogations
Provides that any law-enforcement officer shall, unless he or she has good cause not to, make an audiovisual recording of the entirety of any custodial interrogation of a person conducted in a place of detention. If an audiovisual recording is unable to be made, the law-enforcement officer shall make an audio recording. The bill provides that the failure of law-enforcement officer to make such a recording shall not affect the admissibility of the statements made during the custodial interrogation, but the court or jury may consider such failure in determining the weight given to such evidence.
Removes the existing provisions that allow a person’s driver’s license to be suspended (i) when he or she is convicted of or placed on deferred disposition for a drug offense; (ii) for non-payment of certain fees owed to a local correctional facility or regional jail; and (iii) for shoplifting motor fuel.
Suspensions of Licenses for Nonpayment of Fines
Repeals the requirement that the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs be suspended. The bill requires the DMV to return or reinstate any person’s driver’s license that was suspended prior to July 1, 2019, solely for nonpayment of fines or costs. Such person does not have to pay a reinstatement fee.
Drugs, Alcohol, and Tobacco
Hemp Products Intended for Smoking
Prohibits the sale to persons under the age of 21 any hemp products intended for smoking.
Alcoholic Beverage Control (ABC) – Interdicted Habitual Drunkards
Repeals the provision allowing a court to enter an order of interdiction prohibiting the sale of alcoholic beverages to any person who has been shown himself or herself to be a habitual drunkard. The bill also repeals the provision that disqualifies habitual drunkards from being able to obtain a concealed handgun permit.
Possession of Tobacco Products by Persons Under 21 Years of Age
Bars the possession of tobacco products or alternative nicotine products by persons under the age of 21 with certain exceptions.
Arrest and Prosecution When Experiencing or Reporting Overdoses
Provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance; possession of marijuana; intoxication in public; or possession of controlled paraphernalia if (i) such individual (a) seeks or obtains emergency medical attention for himself or herself, if he or she is experiencing an overdose, or (b) is experiencing an overdose and another individual seeks or obtains emergency medical attention for him or her; (ii) such individual remains at the scene of the overdose or at any location to which he or she or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself or herself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
Possession of Cannabidiol Oil or THC-A Oil
Provides that a person who possesses marijuana in the form of cannabidiol oil or THC-A oil pursuant to valid written certification issued by a practitioner in the course of his or her professional practice shall not be prosecuted for simple possession of marijuana.
Refusal of Tests – Restricted Licenses
Allows a person convicted of a first offense of unreasonable refusal to have samples of his or her breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license.
Ignition Interlock with First Offense Driving Under the Influence of Drugs
Provides that a court of proper jurisdiction may, as a condition of a restricted license, prohibit an offender from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for a first offense of driving under the influence of drugs. Under current law, such prohibition is required to be ordered as a condition of a restricted license.
Firearms and Other Weapons
Firearms and Other Weapons Criminal History Checks for Firearm Transfers
Requires a background check for any firearm sale and directs the State Police Department to establish a process for transferors to obtain such a background check from licensed firearm dealers. A person who sells a firearm to another person without obtaining the required background check is guilty of a Class 1 misdemeanor. A purchaser who receives a firearm from another person without obtaining the required background check is guilty of a Class 1 misdemeanor.
Reporting Lost or Stolen Firearms
Requires that, if a firearm is lost or stolen from a person who lawfully possessed it, such person shall report the loss or theft of the firearm to any local law-enforcement agency or the State Police Department within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft.
Concealed Handgun Permits
Removes the option for concealed permit applicants to demonstrate competence with a handgun by completing an electronic, video or online course conducted by a state-certified or National Rifle Association-certified firearms instructor. (Delayed effective date: January 1, 2021.)
Prohibition of Firearms and Ammunition Within Government Buildings
Authorizes any locality by ordinance to prohibit the possession or carrying of firearms, ammunition, or components or any combination thereof in (i) any building, or part thereof, owned or used by such locality for governmental purposes; (ii) any public park owned or operated by the locality; (iii) any recreation or community center facility; or (iv) any public street, road, alley, sidewalk or public right-of-way or any other place of whatever nature that is open to the public and is being used by or is adjacent to a permitted event or an event that would otherwise require a permit.
Removal of Firearms from Persons Posing Substantial Risk of Injury
Creates a procedure by which a Commonwealth’s Attorney or law-enforcement officer may apply to a general district court, circuit court, or juvenile and domestic relations district court or magistrate for an emergency substantial risk order to prohibit a person who poses a substantial risk of injury to himself, herself, or others from purchasing, possessing, or transporting a firearm.
Allowing Minors Access to Firearms
Increases the penalty from a Class 3 misdemeanor to a Class 1 misdemeanor for any person who recklessly leaves a loaded, unsecured firearm in such a manner as to endanger the life or limb of any person under the age of 14.
Prohibits the manufacture, importation, sale, or offer to sell, possess, transfer, or transportation of a trigger activator, defined in the bill as a device designed to allow a semi-automatic firearm to shoot more than one shot with a single pull of the trigger by the shooter. A violation is punishable as a Class 6 felony.
Provides that a person is guilty of unlawful paramilitary activity if such person brandishes a firearm or any air or gas operated weapon or any object similar in appearance any object similar with one or more persons for the purpose of and with the intent to intimidate any persons or group of such persons. Such unlawful paramilitary activity is punishable as a Class 5 felony.
Limitation on Purchases of Handguns
Prohibits any person who is not a licensed firearms dealer from purchasing more than one handgun in a 30-day period and established such an offense as a Class 1 misdemeanor.
Firearm Possession on School Property
Adds public, private, or religious preschools and licensed child day centers that are not operated at the residence of the provider or of any of the children to the list of schools where possessing a firearm on school property or on a school bus is prohibited.
Possession of Stun Weapons on School Property
Allows the holder of a valid concealed handgun permit to possess a stun weapon on school property while in a motor vehicle in a parking lot, traffic circle, or other means of vehicular ingress or egress to the school. The bill also allows a stun weapon to be stored in a closed container in a motor vehicle while such vehicle is on school property.
Mandatory Background Checks at Firearm Shows
Requires that the State Police to perform a criminal history record information check on the prospective or transferee prior to the completion of any firearms transaction at the firearm show held in Virginia.
Storage of Unloaded Firearms in Family Day Homes
Requires that during hours of operations, all firearms in a licensed family day home, registered family day home or family day home, or family day home approved by a family home system, be stored unloaded in a locked container, compartment, of cabinet, and that all ammunition be stored in a separate locked container, compartment, or cabinet.
Juveniles Tried as Adults
Increases from 14 of age to 16 years of age the minimum age at which a juvenile may be tried as an adult in circuit court for murder or aggravated malicious wounding. However, if the juvenile is 14 years of age or older but younger than 16 years of age, the court on the motion of the Commonwealth’s Attorney, shall hold a transfer hearing. The minimum age is also raised from 14 to 16 for certain charges requiring notice of intent to try such juvenile at an adult by the Commonwealth’s Attorney.
Custodial Interrogation of a Child and Parental Notification
Requires that prior to the custodial interrogation of a child who has been arrested by a law-enforcement officer for a criminal violation, the child’s parent, guardian, or legal custodian be notified of the child’s arrest and the child have contact with his or her parent, guardian, or legal custodian. Such notification and contact may be made in person, electronically, telephone, or by video conference.
Establishment of Behavioral Health Dockets
By the Behavioral Health Docket Act, establishes behavioral courts as specialized court dockets within the existing structure of the Virginia court system.
Law-enforcement Agencies’ Body-Worn Camera Systems
Requires localities to adopt and establish a written policy for the operation of a body-worn camera system.
Forfeiture of Property Used in Connection with the Commission of Crimes
Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he or she has been sentenced. The bill provides that property may be forfeited even though no finding of guilt is made if (i) the forfeiture is ordered by the court pursuant to a plea agreement or (ii) the owner has not submitted a written demand for the return of the property with 21 days from the date and stay terminates.
Payments: Fines, Costs, Restitution
Community Service in Lieu of Court Costs
Provides that a court may permit an inmate to earn credits against any fines and court costs imposed against him by performing community service.
Home Electronic Incarceration Program
Changes from mandatory to optional the current requirement that the director or administrator of a home electronic program charge an offender or accused a fee for participating in the program to be used for the cost of home electronic incarceration equipment.
Possession of Firearms While Under a Protective Order
Prohibits any person subject to a permanent protective order form knowingly possessing a firearm while the order is in effect, provided that for a period of 24 hours after being served with a protective order such person may continue to possess such firearm for the purposes of selling or transferring it to any person who is not otherwise prohibited by law from possessing such firearm.
Student Disorderly Conduct in Schools
Provides that an elementary or secondary school student is not guilty of disorderly conduct in a public place if the disorderly conduct occurred on the property of an elementary or secondary school, on a school bus, or at any activity conducted or sponsored by any elementary or secondary school.
Alternative Discipline Process in Public Schools
Allows a school board to adopt an alternative school discipline process to provide a principal and parties involved in an incident involving, assault, or assault and battery without bodily injury, that occurs on a school bus, on school property, or at a school-sponsored event an option to enter into a mutually agreed-upon process between the involved parties as an alternative to reporting such incident to law-enforcement.
Sentencing and Probation/Parole
Deferred Dispositions in Criminal Cases
Allows a court to defer and dismiss a criminal case (with certain exceptions including an act of violence) where the defendant has been diagnosed with autism or an intellectual disability and the court finds by clear and convincing evidence that the criminal conduct was caused by or had a direct and substantial relationship to the person’s disorder or disability.
Deferred Dispositions in Property and Larceny Crimes
For certain misdemeanor property crimes, provides that a court, following entry of a plea, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation subject to terms and conditions for a first offense misdemeanor larceny. The person must not have been previously convicted of any felony or had a prior deferred disposition for the same offense.
Sentence Reductions for Substantial Assistance in Furtherance of Investigation
Adds providing assistance in the furtherance of an investigation or prosecution of another person’s sentence can be reduced by the sentencing court upon Commonwealth’s motion.
Sex Crimes and Sexual Offender Registry
Aggravated Sexual Battery
Provides that any massage therapist, person practicing the healing arts, physical therapist, or a person purporting to be such practitioner, who sexually abuses another person without the express consent of the complaining witness is guilty of aggravated sexual battery.
Smoking Around Minors in Motor Vehicles
Expands the group in the presence of whom it is illegal to smoke in a motor vehicle from minors under the age of eight to minors under the age of 15.
Handheld Devices While Driving Motor Vehicles
Prohibits any person from holding a handheld personal communications device while driving a motor vehicle.
Raises the threshold for per se reckless driving for speeding from driving in excess of 80 miles per hour to driving in excess of 85 miles per hour. The threshold for per se reckless driving for speeding for driving at more than 20 miles per hour in excess for the speed limit remains unchanged.
Driving While License, Permit, or Privilege to Drive Suspended or Revoked
Eliminates the mandatory minimum term of confinement in jail of 10 days for third or subsequent conviction of driving on a suspended license.
Driving After Forfeiture of License
Specifies that a person is guilty of an offense of driving or operating a motor vehicle (i) after his or her driver’s license has been revoked for certain offenses; (ii) in violation of the terms of a restricted license; (iii) without an ignition interlock system if one is required; or (iv) if the person’s license had been restricted, suspended, or revoked for certain driving under the influence offenses, with a blood alcohol content 0.02 percent or more, only if such person was driving or operator the motor vehicle on a highway, as defined in the motor vehicle title.