The following legislation has been approved by the Virginia General Assembly and signed into law by Governor Northam.
The Virginia Indigent Defense Commission (VIDC) has published very useful summaries of the new criminal laws and here are the most important changes going into effect.
Admission to Bail: Eliminates the rebuttable presumptions against being admitted to bail.
Previously, there were many presumptions against bail, which judges were required to consider such as offenses involving firearms, malicious wounding, and robbery. These often prevented people charged with crimes from receiving a bond before trial even if the case alleged against him or her was somewhat weak.
The new law requires courts to consider a variety of factors in making a bail determination including:
- The nature and circumstances of the alleged offense
- Whether a firearm is alleged to have been used in the commission of the offense
- The weight of the evidence
- The history of the accused or juvenile, including his or her family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment
- His or her length of residence in, or other ties to the community
- His or her record of convictions
- His or her appearance at court proceedings; and
- Whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, intimidate, a prospective witness, juror, victim, or family or household member
Crimes and Penalties
Robbery: Creates degrees of punishment corresponding to the severity of the robbery offense.
Any person who commits a robbery and causes serious bodily injury to or the death of another person is guilty of a Class 2 felony.
Any person who commits robbery by using or displaying a firearm in a threatening manner is guilty of Class 3 felony.
Any person who commits robbery by using physical force not resulting in serious bodily injury or by using or displaying a deadly weapon other than a firearm in a threatening manner, is guilty of a Class 5 felony.
Finally, any person who commits robbery by using threat or intimidation or by any other means not involving a deadly weapon is guilty of a Class 6 felony.
Under previous law, all robberies were punishable by confinement in the Virginia Department of Corrections for five (5) years to life.
Second or Subsequent Misdemeanor Larceny: Repeals the enhanced penalties for a second or subsequent misdemeanor larceny conviction.
Under prior law, when a person was convicted of a second larceny crime, he or she must have received a jail sentence of thirty (30) days confinement and up to twelve (12) months confinement. A third or subsequent larceny conviction was punishable as a Class 6 felony.
Habitual Offender: Repeals all portions of the Habitual Offender Act and requires the Department of Motor Vehicle to reinstatement the driving privileges of people whose licenses were taken away due to the Habitual Offender Act.
Personal Appearance of Defendant by Two-Way Electronic Video and Audio Communication: Permits with the consent of the judge and all parties, a defendant may appear in court by two-way electronic video and audio communication for the purpose of (i) entry of a plea of guilty or no contest and related sentencing of the defendant charged with a misdemeanor or felony, (ii) entry of a nolle pros or dismissal, or (iii) a probation violation hearing.
Arrest and Prosecution When Experiencing or Reporting Overdose: Prohibits the arrest or prosecution of an individual for an unlawful purchase, possession, or consumption of alcohol, possession of marijuana, intoxication in public, or possession of controlled paraphernalia if (i) such individual, in good faith, renders emergency care or assistance, including CPR or administers an overdose reversal agent, to an individual experiencing an overdose while another individual seeks or obtains emergency medical attention; (ii) such individual remains at the scene of the overdose or at any location to which (s)he 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 the individual’s rendering care or assistance.
Issuance of Petition to Vacate Convictions for Survivors of Commercial Sex Trafficking: Establishes a procedure for victims of sex trafficking to file a petition in circuit court to have certain convictions vacated and expunged.
Victims of Sex Trafficking – Affirmative Defense for Certain Offenses: Provides an affirmative defense to prosecution for prostitution and keeping, residing in, or frequenting a bawdy place if, at the time of the offense leading to such charge, such person was a victim of sex trafficking, as defined in the bill and (i) was coerced to engage in the offense through the use of force or intimidation or (ii) such offense was committed at the direction of another person other than the individual with whom the person engaged in the acts of prostitution for such money or its equivalent.
Department of Corrections
Suspension or Modification of Sentence Transfer to the Department of Corrections: Provides that if a person has been sentenced for a felony to the Department of Corrections, the court that heard the cases, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at time before the person is transferred to the Department of Corrections, or within sixty (60) days of such transfer, suspend or otherwise modify the unserved portion of such a sentence.
Under previous law, a circuit court could not modify a sentence when a person was transferred to the Department of Corrections.
Sealing of Criminal Records: Establishes a process for the automatic sealing of police and court records, for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed.
The bill allows a person to petition for the sealing of police and court records relating to certain convictions.
Fines and Costs – Interest: Provides that no interest shall accrue on any fine or costs imposed in a criminal case or in a case involving traffic infractions (i) for a period of 180 days following the date of the final judgment imposing such fine or costs, (ii) during any period the defendant is incarcerated, and (iii) for a period of 180 days following the date of the defendant’s release from the incarceration if the sentence includes an active term of incarceration.
Purchase, Possession, or Transportation of Firearms Following Conviction for Assault and Battery of a Family or Household Member: Prohibits a person who has been convicted of assault and battery of a family or household member, from purchasing, possessing, or transporting a firearm.
The prohibition expires three (3) years after the date of conviction, at which point the person’s firearms rights are restored, unless he receives another disqualifying conviction.
A person who violates the provisions of the bill is guilty of a Class 1 misdemeanor.
Disposing of Litter: Increases the minimum fine for dumping or disposing of litter, trash, or other unsightly matter on public or private property from $250 to $500.
Marijuana Legalization: Eliminates criminal penalties for simple possession of up to one ounce of marijuana by persons 21 years of age or older.
Consideration of Mental Health and Intellectual Disabilities in Criminal Proceedings: Permits the admission of evidence by the defendant concerning a defendant’s mental condition at the time of an alleged offense, including expert testimony, if such evidence is relevant and not evidence concerning the ultimate issue of fact and (i) tends to show the defendant did or did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general Rules of Evidence.
Communicating Threats of Death or Bodily Injury to a Person with Intent to Intimidate: Provides that any person 18 years of age or older who communicates a threat in writing, including an electronically transmitted communication producing a visual or electronic message to another to kill or do serious bodily injury to any other person and makes such threat with intent to (i) intimidate a civilian population at large; (ii) influence the conduct or activities of a government, including the government of the United States, a state or a locality, through intimidation or (iii) compel the emergency evacuation, or avoidance, of any place of assembly, any building or other structure, or any means of mass transportation is guilty of a Class 5 felony.
Any person under the age of 18 who commits this offense is guilty of a Class 1 misdemeanor.
Bribery in Correctional Facilities: Any person who receives any pecuniary benefit or other consideration to act in the unlawful delivery of items or contraband to prisoners is guilty of bribery, punishable as a Class 4 felony.
The new law also provides that any law enforcement officer, jail officer, or correctional officer who violates this code section shall be decertified and shall be forever ineligible for reemployment as a law enforcement officer, jail officer, or correctional officer in the Commonwealth of Virginia.
Probation and Parole
Probation, Revocation, and Suspension of Sentence: Limits the amount of active incarceration a court can impose as a result of a revocation hearing for a probation violation.
Under the new law, the court may place a person on a period of supervised probation to be imposed if necessary (i) for the defendant to participate in a court-ordered program or (ii) if a defendant owes restitution and is still subject to restitution and is still subject to restitution compliance review hearings.
Ban on Execution of No-Knock Warrants: Provides that a search warrant for the search of any residence shall be executed by initial entry of the abode only in the daytime hours between 8:00 a.m. and 5:00 p.m. with limited exceptions, including certain emergencies.
Promise to Appear After the Issuance of a Summons: Provides that if any person refuses to give a written promise to appear, the arresting officer shall give such person notice of the time and place of the hearing, note such person’s refusal to give his or her written promise to appear on the summons, and forthwith release him or her from custody.
Under previous law, a person refusing to sign a summons would be immediately arrested.
Restricted Permits: Provides that any person who is otherwise eligible to receive a restricted permit to operate a motor vehicle shall not be required to pay his or her fines before being issued a restricted permit.
Restricted Permits to Operate Motor Vehicles – Ignition Interlock Systems: Provides that in any criminal case for reckless or improper driving where a defendant’s license to operate a motor vehicle is subject to revocation or suspension and the court orders a defendant, and a condition of probation or otherwise, to enter into and successfully complete an alcohol safety action program, the court may issue the defendant a restricted license to operate a motor vehicle where the only restriction is to prohibit the defendant from operating a motor vehicle that is not equipped with a functioning, certified ignition interlock system for a period of not less than six consecutive months without alcohol-related violations of the interlock requirements.
Driver’s License Suspensions – Restricted Licenses for Drug Convictions: Authorizes the Department of Motor Vehicles to issue restricted driving credentials to individuals with driver’s license suspensions resulting from drug-related offenses.