June 2005 Criminal Law News
Volume 34 June, 2005 Number 6
Criminal Law and Family Law Sections Join to Co-Sponsor Session at VSB Annual Meeting
The Criminal Law Section and the Family Law Section will join together in presenting a program on Dangerous Intersection Ahead: When Criminal and Family Law Collide at the annual meeting of the Virginia State Bar at the Cavalier Hotel in Virginia Beach this June. The program will occur on Friday morning, June 17th at 11:00 a.m. at the Cavalier. This is somewhat later than the normal Section program and meeting, so members should take notice.
The panel for the program will consist of the Honorable L. A. Harris, Jr., Judge of the Circuit Court of Henrico County, Susan Massie Hicks, of Susan Hicks & Associates in Fairfax, Shepherd D. Wainger of Kaufman & Canoles in Norfolk, and Michael HuYoung of The Barnes Law Firm in Chesterfield County. The program will last from 11:00 a.m. to 12:30 p.m., when there will be a Section business meeting. The discussion will involve such topics as electronic surveillance, child abuse and domestic violence arising in divorce, other criminal law issues which may arise for family law practitioners, and the ethical issues presented by the intersection between these two areas of the law.
Susan Massie Hicks received her law degree from the Georgetown Law Center, and she is a Fellow in the American Academy of Matrimonial Lawyers and is listed in BEST LAWYERS IN AMERICA. She is the past President of the Virginia Women Attorneys Association and has served as Chair of the Family Law Sections of the Virginia State Bar and the Virginia Trial Lawyers Association. She is also a member of the McCammon Mediation Group, and has served on the Fifth District Disciplinary Committee and the Committee on Lawyer Discipline for the Virginia State Bar.
Michael Hu Young is a Director in The Barnes Law Firm, here he is chairman of the Criminal Litigation Section, and he is a graduate of the University of Virginia and the University of Richmond Law School. He has been listed in Virginia's Legal Elite/The Best Lawyers in Virginia in Virginia Business Magazine for 201-2004, and he has chaired in Criminal Law Section of the Virginia Trial Lawyers Association. He has been a frequent speaker at CLE programs, and is a substitute judge in the Richmond area.
Shep Wainger is involved in the municipal and litigation areas with Kaufman & Canoles, and he is a graduate of Duke University and the Emory University School of Law. He is a former prosecutor and a former faculty member of the Virginia Beach Police Academy. He is a member of the Local Government Attorneys of Virginia and serves on the Board of Art & Co., a division of the Contemporay Art Center of Virginia.
Judge L. A. Harris, Jr., is a graduate of Virginia Commonwealth University, and the University of Richmond Law School. He is a former Attorney for the Commonwealth for Henrico County, and he currently serves on the Circuit Court in that jurisdiction.
The Annual Meeting of the Virginia State Bar will run from Thursday, June 16th to Sunday, June 19th, and registration and hotel reservation materials have been mailed to all members of the Bar. Additional materials may be accessed on-line at vsb.org. The Section's annual business meeting will follow the program.
As my term as Chair of the Criminal Law Section ends with the Virginia State Bar meeting in Virginia Beach on June 16-19, I want to thank you, the members, for the high privilege of serving as your Chair during the past year. It is an enriching experience, and a decided honor. It is especially enriching serving with the lawyers and judges on the Board of Governors, and they are an incredibly hard-working and dedicated group of people who contribute much to the quality of the criminal law bar and the justice system in the Commonwealth.
As I mentioned in my last letter, I also owe much to the extremely competent and helpful members of the Virginia State Bar staff who contribute much to the success of the Section, especially Bet Keller, Terry Patrick, Maureen Stengel, and Dolly Shafner. We would be lost without them.
Don't forget to register for the annual meeting at Virginia Beach. This year the Criminal Law Section will be co-sponsoring a program with the Family Law Section, and as the program description in this Newsletter shows, it promises to be both practical and engaging.
Thank you again for a wonderful year, and I look forward to seeing many of you Virginia Beach.
Michael Herring, Chairman
2005 Legislation Affecting Criminal Law and Procedure
These summaries are largely taken from the Digest of the Acts of the General Assembly, 2005 Session, prepared for the Virginia Code Commission.
§§ 9.1-901, 9.1-902, and 9.1-903 amended. Judicial discretion to require registration of minor who commits an otherwise registrable offense. Provides that a juvenile sex offender or child criminal offender over the age of 13 who is tried as a juvenile and found delinquent of any registrable offense may be required to register after the court considers the following factors relevant to the case: (i) the age and maturity of the complaining witness, (ii) the age and maturity of the offender, (iii) the difference in the ages of the complaining witness and the offender, (iv) the nature of the relationship between the complaining witness and the offender, (v) the offender's prior criminal history, (vi) any other aggravating or mitigating factors relevant to the case, and (vii) whether the offense was committed with force, threat or intimidation. The section applies to offenses that occur on or after July 1, 2005. Current law does not require the registration of juveniles unless they are tried and convicted as adults. CH. 586.
§§ 9.1-902, 9.1-905, 9.1-907, and 9.1-913 amended. Sex Offender and Crimes Against Minors Registry Act; registration; enforcement. Amends the Sex Offender and Crimes Against Minors Registry Act to add murder of a child under 18 to the list of crimes for which registration and internet posting is required, and sexual battery against a child under six by a perpetrator 18 or older to those crimes classified as sexually violent offenses. The bill requires that a sex offender who must register in his home state register in Virginia when he moves here, regardless of whether the underlying criminal offense is similar to a Virginia offense. The bill also requires the registration of a nonresident in Virginia for an extended visit (30 days or more). Finally, the bill clarifies that local law-enforcement agencies have the authority to enforce the provisions of the Act. CH. 603.
§ 16.1-248.1 amended. Criteria for detention of juvenile; appeal. Authorizes the attorney for the Commonwealth to appeal the decision of the intake officer or magistrate to release a juvenile if the juvenile violated a term or condition of his release, is convicted of or taken into custody for an additional offense, or the attorney for the Commonwealth presents evidence that incorrect or incomplete information was relied upon in establishing the initial terms of release. The attorney for the Commonwealth may appeal the decision of a juvenile court judge if the juvenile is released over his objection. CH. 647.
§ 16.1-266 amended. Juveniles; representation by attorney. Provides that juveniles may waive representation by an attorney where the charged offense would be a felony if committed by an adult only after the juvenile consults with an attorney and the court determines that his waiver is free and voluntary. In addition, the waiver must be in writing, and the court must find that the child and parent consent and that the waiver is consistent with the interests of the child. The legislation continues the requirement in the 2004 amendment to this section that counsel be appointed prior to the initial court detention hearing. CH. 427.
§§ 16.1-269.2 and 16.1-272 amended. Notice of juvenile transfer hearing; sentencing. Requires the attorney for the Commonwealth to notify the court service unit of the need for a transfer report upon motion of the Commonwealth for a juvenile transfer hearing. If a juvenile tried as an adult is sentenced as juvenile, the bill requires the clerk to provide a copy of the court's final order or judgment to the appropriate court service unit. CH. 590.
§§ 16.1-269.2, 16.1-273, and 18.2-55.1 amended; § 52-8.6 added; § 16.1-299.2 repealed. Organized criminal gang reporting. Repeals a provision relating specifically to reporting of organized youth gang activity, and creates a general law-enforcement reporting requirement of all gang activity to the Organized Criminal Gang File in the Virginia Criminal Information Network and the Violent Criminal Gang File of the National Crime Information Center maintained by the Federal Bureau of Investigation. CH. 843.
§ 16.1-278.8 amended. Delinquent juveniles; disposition. Replaces the 12-month period during which the court may defer disposition of a delinquent juvenile with a provision that the court establish a specific period of time giving due regard to the gravity of the offense and the juvenile's history. CH. 810.
§§ 16.1-278.9, 4.1-200, 4.1-305 and 4.1-306 amended. Underage drinking and provision of alcohol; penalties. The bill criminalizes underage consumption of alcohol and punishes anyone who aids or assists in providing alcohol to an underage person with a Class 1 misdemeanor. CH. 895.
§ 16.1-287 amended. Juveniles; information upon the commitment of a juvenile. Places upon the Department of Correctional Education the primary duty of transferring academic, career and technical education, and related achievement information to local school boards when children are returned to the community from the Department of Juvenile Justice's care. CH. 154.
§ 16.1-293.1 added. Mental health transition plan. Requires the Board of Juvenile Justice, after consultation with the Board of Mental Health, Mental Retardation, and Substance Abuse Services and other related agencies, to promulgate regulations for the planning and provision of mental health, substance abuse or other therapeutic treatment services for persons returning to the community following commitment to a juvenile correctional center or postdispositional detention. CH. 405, 334.
§§ 16.1-301, 19.2-368.5, 19.2-368.10, and 19.2-368.11:1 amended; § 19.2-368.5:2 added. Criminal Injuries Compensation Fund. Increases the maximum funeral payout from $3,500 to $5,000, reconciles inconsistent language in the definition of victim, specifies that the lack of a restitution order does not preclude the Fund from exercising its subrogation rights, provides that upon the filing of a claim, health care providers are prohibited from undertaking debt collection activities until an award is issued or determined to be noncompensable, and allows the Fund access to juvenile records in certain instances. CH. 683.
§ 16.1-309.1 amended. Confidentiality of juvenile records; escape exception. Amends provisions allowing the public release of juvenile information (name, age, physical description, photograph, charge, and other information that might expedite apprehension) when a juvenile becomes a fugitive from justice to apply to juveniles who are being held in custody by a law-enforcement officer or in a secure facility. Under current law release of this information is allowed only if the juvenile is charged with certain felonies (rape, robbery, burglary, or a Class 1, 2, or 3). Current law further provides that the information may be released only upon court order. This bill provides that if the juvenile becomes a fugitive from justice at a time when court is not in session, the Department of Juvenile Justice, attorney for the Commonwealth or a court services unit may release such information. CH. 364.
§§ 16.1-340, 16.1-341, 16.1-342, 16.1-345, and 16.1-346.1 amended. Psychiatric Inpatient Treatment of Minors Act. Adds a procedure for the hospitalization of a juvenile who is in detention or shelter care for a criminal offense pursuant to an order of a juvenile and domestic relations district court. CH. 346.
§§ 16.1-345.1, 37.1-67.7 added. Use of electronic communication for certain filings; parties and witnesses. Provides that petitions and orders for emergency custody, temporary detention, and involuntary commitment of minors may be filed, issued, served, or executed by electronic means, with or without the use of two-way electronic video and audio communication. The bill also allows petitions and orders for emergency custody of adults, temporary detention of adults, emergency custody and temporary detention of adults in judicial authorization of treatment proceedings, and emergency custody of conditionally released persons to be filed, issued, served, or executed by electronic means, with or without the use of two-way electronic video and audio communication. The bill provides for party and witness testimony through two-way electronic video and audio communication in such proceedings. Finally, the bill allows a witness to testify using a telephonic communication system when his testimony would be helpful to the conduct of such proceedings and he is not able to be physically present. CH. 51.
§§ 16.1-356, 8.01-400.2, 16.1-361, and 60.2-219 amended. Marriage and family therapists. Adds marriage and family therapists to certain Code sections that list other mental health professionals. These sections involve privileged communications in civil actions, evaluation of juvenile competency, compensation for expert testimony, and services falling outside of the definition of employment for purposes of unemployment compensation. CH. 110.
§ 18.2-36.2 added; §§ 46.2-208 and 46.2-382 amended; Involuntary manslaughter for a death caused by drunk boating; penalties. Provides that any person who, as a result of operating a watercraft or motorboat while intoxicated, unintentionally causes the death of another person, is guilty of involuntary manslaughter. CH. 376.
§§ 18.2-46.1, 19.2-11.2, 48-7, 48-8, and 48-9 amended; § 18.2-46.3:3 added. Crimes; criminal street gangs; penalties. Adds to the list of crimes defined as "predicate criminal act" the following: § 18.2-42, assault by mob; § 18.2-56.1, reckless handling of a firearm; § 18.2-59, extorting money; § 18.2-286.1, shooting from a motor vehicle; § 18.2-287.4, carrying a loaded firearm in public areas in certain localities; and § 18.2-308.1, possession of a firearm, stun weapon or taser on school property. In addition, the bill provides that "predicate criminal act" includes the violation of any offense substantially similar to these newly added crimes as well as the existing listed crimes when committed in another state or territory of the United States, the District of Columbia, or the United States. The bill provides enhanced punishments for gang activities taking place at or near schools, colleges, and school buses. The bill allows a witness in a gang prosecution to request that certain information about the witness not be disclosed. Finally, the bill treats criminal street gangs as public nuisances and allows for the enjoinment of such nuisances. CH. 813, 764.
§§ 9.1-902, 9.1-908, 9.1-910, 16.1-69.48:1, 17.1-275.1, 17.1-275.2, 17.1-275.7, 17.1-805, 18.2-61, 18.2-67.1, 18.2-67.2, 19.2-218.1, 19.2-218.2, 19.2-299, 19.2-303.4, 19.2-335, and 19.2-336 amended; § 18.2-67.2:1 repealed. Sexual crimes. Eliminates in the rape, forcible sodomy and object sexual penetration statutes the different standard that defines the offense if the victim and perpetrator are married to each other. This includes removing from the forcible sodomy and object sexual penetration statutes the provision that such crimes cannot be committed against a spouse unless the spouses were living separate and apart or there was bodily injury caused by force or violence, as the 2002 General Assembly did in the rape statute. Because of the equalization of the elements of the offense in the rape, forcible sodomy and object sexual penetration statutes, the marital sexual assault statute is repealed. The bill retains the provisions that allow for counseling and therapy, and allows discharge and dismissal if there has not been a previous discharge and dismissal under the statute. CH. 631.
§ 18.2-62 amended. Persons arrested for certain crimes; testing for HIV, hepatitis B or C viruses. Provides that the attorney for the Commonwealth may request that a person arrested for assault and battery where the victim was exposed to the body fluids of the person arrested, be tested for HIV and hepatitis B or C viruses. If the defendant refuses, the court may hold a hearing. Current law applies to persons charged with certain sex crimes and covers HIV testing only; however, the bill's provisions for hepatitis B or C testing will apply to those persons also. CH. 661.
§ 18.2-67.3 amended. What constitutes aggravated sexual battery; penalty. Provides that the crime of aggravated sexual battery, a felony punishable by up to 20 years in prison, is committed when a person sexually abuses a person of any age who is physically helpless. Currently, sexual abuse of a person who is physically helpless is only punishable as aggravated sexual battery if the victim is 13 or 14 years old, the victim is seriously injured, or the accused uses a dangerous weapon. Under current law, sexual abuse of any child under age 13 is aggravated sexual battery. CH. 406.
§§ 18.2-67.3, 18.2-361, 18.2-370, and 18.2-370.1 amended. Sexual offenses against children by a parent or grandparent; penalty. Provides that sexual abuse of a child age 13-17 by a parent, step-parent, grandparent or step-grandparent is aggravated sexual battery, which is punishable by a term of imprisonment of one to 20 years. The bill provides that for purposes of the crimes against nature statute, parent includes step-parent and grandparent includes step-grandparent. The bill raises the age in the indecent liberties section from age 14 to age 15 and provides that violation of that section and certain violations of taking indecent liberties with a child by a person in a custodial or supervisory relationship, if the child is age 15 to 17 and is a child, step-child, grandchild or step-grandchild of the perpetrator, is a Class 5 felony. If the child is less than 15 years of age it is a Class 4 felony. The bill amends the taking indecent liberties with child by a person in custodial or supervisory relationship to state that it does not apply if the child is emancipated or if the perpetrator is legally married to the child. CH. 185.
§ 18.2-85 amended. Fire bombs; definition. Amends the definition of a fire bomb to clarify that it includes a wick composed of any material capable of igniting the flammable material or chemical compound inside a container. CH. 204.
§§ 18.2-152.2 and 18.2-152.4 amended. Computer crimes; penalties. Modernizes the Virginia Computer Crimes Act by updating definitions to comport with changing technology, removing superfluous language and relocating language. The bill adds unauthorized installation of software on the computer of another, disruption of another computer's ability to share or transfer information and maliciously obtaining computer information without authority as additional crimes of computer trespass, a Class 1 misdemeanor. The bill also reduces the felony (Class 6) threshold from $2,500 to $1,000 for property damage resulting from computer trespass. CH. 812.
§§ 18.2-152.2, 18.2-152.3, 18.2-152.4, 18.2-152.5, 18.2-152.6, 18.2-152.7, 18.2-152.8, 18.2-152.12, and 19.2-8 amended; §§ 18.2-152.5:1 and 19.2-249.2 added; §§ 18.2-152.9 and 18.2-152.10 repealed. Virginia Computer Crimes Act; penalties. Updates the Virginia Computer Crimes Act to include recommendations made by the 2004 joint study on Computer Crimes by the Joint Commission on Technology and Science and Virginia State Crime Commission. The bill modernizes definitions of "computer," "using a computer" and "without authority"to comport with changing technology. Te bill revises provisions regarding computer trespass, a Class 1 misdemeanor, unless the damage to the property of another is $1,000 ($2,500 under current law) or more, in which case it is a Class 6 felony. rovisions regarding computer invasion of privacy are rewritten to include unauthorized gathering of identifying information and Class 6 penalties added for persons with previous convictions, selling or distributing the information to another or using the information in the commission of another crime. The bill adds as a new Class 6 felony using a computer to fraudulently gather identifying information of another (phishing), unless the information is sold or distributed to another or the information is used in the commission of another crime, in which case it is a Class 5 felony. Statute of limitation and venue provisions are relocated in the Code. CH. 827, 761.
§§ 18.2-152.3 and 18.2-152.5 amended; § 18.2-152.5:1 added. Computer crimes; penalties. Revises provisions in the Virginia Computer Crimes Act relating to computer fraud and redefines computer invasion of privacy by including the unauthorized gathering of identifying information and punishes subsequent offenses and transferring the information to another or use of the information in the commission of another crime as a Class 6 felony. Currently, the offense is punishable as a Class 1 misdemeanor. Additionally, the fraudulent gathering of such information is punished as a Class 6 felony, a new crime, and transferring the information to another or use of the information in the commission of another crime is a Class 5 felony. CH. 837, 747.
§ 18.2-152.5:1 added. Computer crimes; phishing; penalty. Makes it a Class 6 felony to fraudulently obtain, record, or access from a computer the following identifying information of another: (i) social security number; (ii) driver's license number; (iii) bank account numbers; (iv) credit or debit card numbers; (v) personal identification numbers (PIN); (vi) electronic identification codes; (vii) automated or electronic signatures; (viii) biometric data; (ix) fingerprints; (x) passwords; or (xi) any other numbers or information that can be used to access a person's financial resources, obtain identification, act as identification, or obtain goods or services. Any person who sells or distributes such information or uses it to commit another crime is guilty of a Class 5 felony. CH. 760.
§§ 18.2-152.6, 18.2-152.7, 18.2-152.8, 18.2-152.12, and 19.2-8 amended; § 19.2-249.2 added; §§ 18.2-152.9 and 18.2-152.10 repealed. Computer crimes; penalties. Revises provisions in the Virginia Computer Crimes Act relating to theft of computer services, personal trespass by computer, embezzlement, larceny or receiving stolen goods by computer, and civil damages. The bill also relocates statute of limitation and venue provisions in the Code. CH. 746.
§§ 18.2-154 and 18.2-279 amended. Homicide resulting from shooting into a vehicle or building. Specifies that a death resulting from maliciously shooting or throwing a missile at a vehicle or occupied building is second degree murder unless the homicide is willful, deliberate and premeditated, in which case it is first degree murder. CH. 143.
§ 18.2-182 amended. Payment of wages with bad checks; penalty. Provides that an employer who pays wages with a bad check having a face value of $200 or more shall be guilty of a Class 6 felony. CH. 598.
§ 18.2-194 amended. Unauthorized possession of two or more signed credit cards or credit card numbers. Clarifies that possession of two unauthorized credit cards is credit card theft and not forgery. CH. 157.
§ 18.2-196.1 added. Unlawful use of payment card scanning devices and re-encoders; penalty. Punishes as a Class 1 misdemeanor the malicious and unauthorized use of a scanner or re-encoder to unlawfully reproduce the information in the magnetic stripe of a payment card and as a Class 6 felony if the person sells or distributes such information to another or uses the information in the commission of another crime. CH. 166.
§ 18.2-216 amended. Crimes; untrue, deceptive or misleading advertising, inducements, writings, or documents. Provides that the words "untrue, deceptive and misleading" include the use of any writing or document that appears to be, but is not in fact a negotiable check, draft, or other instrument unless the writing or document clearly and conspicuously has printed on its face in at least 14-point bold type the phrase "THIS IS NOT A CHECK." Currently, the writing or document is considered "untrue, deceptive or misleading" even if it has written on it that it is nonnegotiable. CH. 150.
§ 18.2-248 amended. Possession of methamphetamine, methcathinone, or amphetamine precursors; penalty. Provides that any person who possesses any two or more of the following substances with the intent to manufacture methamphetamine, methcathinone or amphetamine is guilty of a Class 6 felony: liquified ammonia, ether, hypophosphorus acid solutions, hypophosphite salts, hydrochloric acid, iodine crystals or tincture of iodine, phenylacetone, phenylacetic acid, red phosphorus, methylamine, methyl formamide, lithium metal, sodium metal, sulfuric acid, sodium hydroxide, potassium dichromate, sodium dichromate, potassium permanganate, chromium trioxide, methylbenzene, methamphetamine precursor drugs, sodium hydroxide, trichlorethane, or 2-propanone. The bill also requires the Virginia Department of State Police, Department of Environmental Quality, Department of Health, and Division of Forensic Science to establish a multi-agency work group to develop a best-practices protocol for use by law-enforcement and emergency response agencies regarding the clean-up of abandoned and deactivated methamphetamine production sites. CH. 796, 759.
§ 18.2-248 amended. Controlled substances; penalties. Raises the penalty for manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance classified in Schedule III to a Class 5 felony from a Class 1 misdemeanor and a controlled substance classified in Schedule IV from a Class 1 misdemeanor to a Class 6 felony. If the violation involves an imitation controlled substance in Schedule III or IV, the penalty is raised from a Class 1 misdemeanor to a Class 6 felony. The bill also provides that an accommodation sale is a Class 1 misdemeanor. CH. 174.
§ 18.2-248 amended; § 18.2-248.02 added. Penalties for methamphetamine manufacture. Increases the penalty for manufacturing certain amounts of methamphetamine or less than 200 grams of a mixture containing methamphetamine from a range of five to 40 years to a range of 10 to 40 years. For a second conviction the range is increased from five years to life to 10 years to life, and for a third or subsequent conviction the range is established as 10 years to life with a mandatory minimum term of imprisonment of three years. There is a provision for the court to order restitution to an innocent property owner whose property is damaged, or rendered unusable, as a result of methamphetamine production. The bill makes it a felony punishable by imprisonment of 10 to 40 years for any person in a custodial relationship over a child under the age of 18 to knowingly allow that child to be present during the manufacture or attempted manufacture of methamphetamine. Certain state agencies are required to establish a multi-agency work group to create a best practices protocol for use by law-enforcement and emergency response agencies regarding the clean-up of abandoned and deactivated methamphetamine production sites. The Division of Forensic Science is required to create a best practices protocol regarding the retention and handling of the by-products of methamphetamine production after testing is conducted on behalf of law-enforcement officials. CH. 923, 941.
§ 18.2-254.1 amended. Drug Treatment Court. Establishes a drug treatment court in Chesapeake. CH. 602, 519.
§§ 18.2-266, 18.2-268.2, 18.2-268.10, 18.2-269, 29.1-738, 29.1-738.2, 29.1-738.3, 46.2-341.24, 46.2-341.26:2, 46.2-341.26:10, and 46.2-341.27 amended. Driving motor vehicle after ingesting certain illegal drugs; penalty. Makes it a violation of the DUI statute to drive with specified levels of the following illegal drugs in one's blood: cocaine, methamphetamine, phencyclidine (PCP), and 3,4-methylenedioxymethamphetamine (MDMA ecstasy). CH. 616.
§ 18.2-266 amended. Crimes; driving a motor vehicle while intoxicated. Provides that the defined term "motor vehicle," which includes mopeds while operated on the public highways of this Commonwealth, applies to all of the provisions of the article of the Code establishing the DUI laws. CH. 845.
§§ 18.2-267, 18.2-268.2 through 18.2-268.5, 18.2-268.8, 18.2-268.9, 18.2-268.10, 18.2-272, 46.2-391.2, and 46.2-391.4 amended. Driving under the influence. Clarifies provisions in the driving under the influence laws, particularly in the refusal statute. The bill states that a first offense of refusual is a civil offense and that subsequent offenses are criminal. Procedures for charging a person with refusal are specified. A law-enforcement officer will have to read the refusal form only to persons who refuse to take a blood or breath test. CH. 840, 757.
§ 18.2-285 amended. Hunting while intoxicated; penalty. Increases the penalty for hunting with a firearm while under the influence of alcohol or narcotic drug from a Class 2 to a Class 1 misdemeanor. The bill also includes within such prohibited hunting the hunting with bow and arrow or crossbow. CH. 507.
§ 18.2-287.4 amended. Carrying certain loaded weapons in public. Rewrites the prohibition against carrying certain loaded semi-automatic rifles or pistols and shotguns in public in certain localities to delete the definition of "firearm" and replace it with the existing substance of the definition. The bill also clarifies that the prohibition does not apply to a person who has a valid concealed handgun permit. CH. 160.
§ 18.2-308 amended. Concealed handgun permits; fees. Exempts special agents retired from the Alcoholic Beverage Control Board from paying a fee for issuance of a concealed handgun permit if the special agent retired after completing 15 years of service or after reaching age 55. CH. 420, 344.
§ 18.2-308 amended. Concealed weapons; retired law-enforcement officers. Allows retired local auxiliary police officers and animal control officers to carry concealed weapons, subject to certain conditions. CH. 424.
§ 18.2-308 amended. Concealed handgun permits; disqualifications. Amends the provision disqualifying a person from receiving a concealed handgun permit on the basis of a written statement of a sheriff, chief of police, or attorney for the Commonwealth alleging that the applicant is likely to use the weapon in an unlawful or negligent manner to provide that in order to disqualify the applicant, the court must find by a preponderance of the evidence, based on specific acts by the applicant, that the applicant is likely to use a weapon unlawfully or negligently to endanger others. CH. 441.
§ 18.2-308.1 amended. Possession of firearms on school property; concealed handgun permit exemption. Allows the holder of a valid concealed handgun permit to possess a concealed handgun 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. CH. 830.
§ 18.2-308.2 amended. Possession of explosive material. Provides that a person is prohibited from possessing, transporting or carrying explosive materials because of a felony conviction, such person may possess, transport or carry explosive materials if his right to do so has been restored pursuant to federal law. CH. 833.
§ 18.2-308.2 amended. Possession and transportation of firearms, etc.; juveniles adjudicated delinquent of certain crimes; penalty. Makes it unlawful for a person adjudicated delinquent on or after July 1, 2005, of murder, kidnapping, armed robbery, or rape who was 14 years of age or older at the time of the offense to possess or transport firearms, stun weapons, tasers, or concealed weapons for the rest of his life. Under current law, such a person would be able to possess these weapons at age 29. Possession or transport of these weapons is a Class 6 felony. The mandatory minimum sentence of two years for a possession of a gun by a person who has been convicted of a felony is removed for persons whose felony conviction was more than ten years ago. CH. 600.
§ 18.2-308.2:2 amended. Transfer of firearms; purchase of more than one handgun in a 30-day period; exemption. Exempts law-enforcement officers from the provision limiting a person from purchasing more than one handgun in a 30-day period. CH. 578.
§§ 18.2-308.2:2 and 54.1-4201 amended. Purchase of firearms. Eliminates the requirement that a person who wishes to purchase a firearm fill out duplicate information on the form required by the Department of State Police as is required on the federal firearm purchase application form. Instead, the applicant will be required to provide written consent for a background check on a state form, and provide certain specified information necessary for the Department of State Police to complete the required background check. In addition, the bill allows the chief law-enforcement officer of a locality, in the course of a criminal investigation, to examine both federal and state firearm transaction records maintained by a licensed firearms dealer in the Commonwealth. CH. 859.
§ 18.2-340.33 amended; §§ 18.2-340.34:1 added. Charitable gaming; Department of Charitable Gaming; registration of bingo manager and a caller; payment of remuneration. Authorizes the payment of remuneration to a bingo manager and a caller by a qualified organization, not to exceed $100 per session for a manager and $50 per session for a caller, provided the bingo manager and caller is registered with the Department. The bill sets forth the requirements for registration. The bill contains technical amendments. The bill also allows the Charitable Gaming Board to set the hours of operation of bingo games. CH. 826, 776.
§ 18.2-346.1 amended. Testing of persons convicted of certain crimes for hepatitis C. Requires hepatitis C testing of persons convicted under statutes prohibiting prostitution, crimes against nature and certain drug offenses indicating intravenous use. Under current law persons convicted of prostitution and crimes against nature must be tested for HIV. This bill adds drug crimes to that provision. The bill also contains provisions related to the sharing and confidentiality of hepatitis C test results. CH. 438.
§ 18.2-370 amended. Indecent liberties with children; penalties. Raises the age of the victim, for the purposes of committing the crime of taking indecent liberties with children, from 13 to 14. CH. 762.
§ 18.2-386.1 amended. Photographs of undergarments, etc., without consent; penalty. Provides that the knowing and intentional creation of a videotape, photograph, film or videographic or still image record created by placing the lens or image-gathering component of a recording device directly beneath or between a person's legs for the purpose of capturing an image of the person's undergarments or intimate parts, when the undergarments or intimate parts would not otherwise be visible to the general public, is punishable as a Class 1 misdemeanor. The offense is punishable as a Class 6 felony if the nonconsenting person is under the age of 18. CH. 375.
§ 18.2-387.1 added. What constitutes indecent exposure; penalty. Provides that a person who, while in a public place where others are present, intending that he be seen by others, intentionally and obscenely engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor. CH. 422.
§ 18.2-431.1 added. Illegal conveyance or possession of cellular telephone by prisoner; penalty. Creates a Class 6 felony for a person without authorization to provide or cause to be provided a cellular telephone to an incarcerated prisoner, or for an incarcerated prisoner without authorization to possess a cellular telephone during the period of his incarceration. CH. 171.
§ 18.2-434 amended; § 8.01-4.3 added. Unsworn declarations; perjury; penalty. Permits the use of unsworn declarations in lieu of sworn affidavits and provides that it is perjury for a person to willfully subscribe as true any material matter that he does not believe to be true in a written declaration, certificate, verification, or statement made under penalty of perjury. CH. 423.
§ 18.2-462 amended. Impeding a criminal investigation; penalty. Provides that any person with actual knowledge of the commission of a felony under Chapter 4 of Title 18.2 (Crimes Against the Person) by another, who willfully conceals, alters, dismembers, or destroys any item of physical evidence with the intent to delay, impede, obstruct, prevent, or hinder the investigation, apprehension, prosecution, conviction, or punishment of any person regarding such offense, is guilty of a Class 6 felony. This provision does not apply to the victim or the spouse, parent, grandparent, child, grandchild, or sibling of the offender. CH. 408.
§ 18.2-465.1 amended. Jury service by employed people. Replaces the provision scheduled to become effective July 1, 2005, permitting a person to be absent from work on any day he serves on a jury with a provision that no person who is summoned and appears for jury duty for four or more hours shall be required to start any work shift that begins on or after 5:00 p.m. on the day of jury service or begins before 3:00 a.m. on the day following the day of jury service. CH. 931.
§ 18.2-479 amended. Escape from custody without violence. Provides that if any person lawfully confined in jail or in the custody of any court or court officer or of any law-enforcement officer, for a probation or parole violation, escapes, other than by force or violence or by setting fire to the jail, he is guilty of a Class 1 misdemeanor. Currently, misdemeanor escape is punishable only when the person is being held on a misdemeanor charge or conviction. CH. 573.
§ 19.2-12 amended. Conservators of the peace. Provides that attorneys for the Commonwealth are conservators of the peace. CH. 372.
§ 19.2-13 amended. Special conservators of the peace. Clarifies that individuals who qualify as special conservators of the peace, who meet certain training requirements, and who are employed by an agency that meets the definition of a private corporate criminal justice agency are exempt from registration and bonding requirements for special conservators of the peace. The bill also permits one judge to approve for all jurisdictions wherein a corporate applicant holds title to real property the appointment of such individual as a special conservator of the peace. CH. 498.
§§ 19.2-61, 19.2-66, 19.2-68, and 19.2-70.2 amended. Location and jurisdiction of wiretaps. Redefines jurisdiction for the purposes of electronic or wire interceptions to provide that such communications shall be deemed to be intercepted in the jurisdiction where the order is entered, regardless of the physical location or the method by which the communication is captured or routed to the monitoring location. The bill also provides that an application for an ex parte order authorizing a pen register or trap and trace device may be filed in the jurisdiction where the person or persons who subscribe to the communication system live, work, or maintain an address and that such installation shall be deemed to occur in the jurisdiction where the order is entered, regardless of the physical location or the method by which the information is captured. CH. 934.
19.2-73 amended. Summons in lieu of warrant for DUI. Provides that if a person arrested for DUI has been taken to a medical facility for treatment or evaluation of his medical condition, the arresting officer at a medical facility may issue, on the premises of the medical facility, a summons for the DUI violation and for refusal of blood alcohol tests in lieu of securing a warrant. Currently, the summons is authorized only for a refusal. CH. 425.
§ 19.2-81 amended. Arrest upon a misdemeanor capias. Provides that when a law-enforcement officer makes an arrest upon a misdemeanor capias, it is not necessary that he have the capias in his possession. CH. 435.
§ 19.2-120 amended. Release of a sex offender on bail. Extends the presumption against bail to situations where a person is arrested for a sex offense enumerated in § 18.2-67.5:2 and the person had previously been convicted of an offense that is substantially similar to one listed in § 18.2-67.5:2 under the laws of another state or the United States. Current law does not specify that an offense in another jurisdiction creates the same presumption as an enumerated Virginia offense. CH. 132.
§ 19.2-143 amended. Remission of forfeited bond. Provides that if it is brought to the attention of the court that a defendant who has defaulted on his bond is incarcerated in another state or country within 48 months of the finding of default, thereby preventing his delivery or appearance within that period, the court shall remit any bond previously ordered forfeited. The current period is 12 months. CH. 585.
§ 19.2-163.01 amended. Virginia Indigent Defense Commission; powers and duties. Requires the Commission to report periodically to the Virginia State Crime Commission and the courts committees and money committees of the House and Senate on the caseload of each public defender office. CH. 230.
§ 19.2-163.02 amended. Indigent Defense Commission; membership and dual office holding. Provides that if the chairman of the Virginia State Crime Commission is the chairman of the House Committee for Courts of Justice, then the vice chairman of the Committee shall serve in the position designated for the Committee chairman. If the Crime Commission chairman is the chairman of the Senate Committee for Courts of Justice, then the Senate Committee on Rules, upon the recommendation of the chairman of the Committee, shall appoint a member of the Committee to serve in the position designated for the Committee chairman. CH. 176.
§ 19.2-169.5 amended. Criminal cases; mental health reports. Provides that in any felony criminal case where the defendant's sanity is in issue and defendant obtains his own expert to evaluate him, the expert shall prepare a full report and shall provide it to the attorney for the Commonwealth. CH. 428.
§ 19.2-243 amended. Speedy trial. Provides that an arrest on an indictment, warrant, information or presentment is deemed to have occurred only when the summons or capias to answer the indictment, warrant, or information is served and executed on the accused, and that the lodging of a detainer does not constitute an arrest. The bill also provides for tolling of the speedy trial statute upon the occurrence of a natural disaster, civil disorder, or act of God. CH. 650.
§§ 19.2-266.2 and 19.2-398 amended. Defense objections; criminal appeals by the Commonwealth. Requires defense objections on speedy trial or double jeopardy grounds be filed in writing at least seven days before trial or at such time prior to trial as the grounds for the motion or objection arose, whichever occurs last. The bill also provides that in a felony case, a pretrial appeal from a circuit court may be taken by the Commonwealth from an order of a circuit court dismissing a warrant, information or indictment or any count or charge thereof, on the ground that the speedy trial statute was violated or that the defendant was subjected to double jeopardy. CH. 622.
§§ 19.2-266.2 and 19.2-398 amended. Criminal procedure. Requires defense objections on speedy trial or double jeopardy grounds to be filed in writing at such time prior to trial as the grounds for motion or objection shall arise, whichever occurs last. The bill also provides that the Commonwealth may appeal from dismissal of a prosecution on speedy trial or double jeopardy grounds. Currently, such appeal must be on the ground that a statute upon which the dismissal was based was found to be unconstitutional. The bill also provides that an arrest on an indictment, warrant, information or presentment is deemed to occur only when the summons or capias is served and executed on the accused and that the lodging of a detainer does not constitute an arrest. CH. 694.
§ 19.2-299 amended. Availability of presentence report to defendant. Allows counsel for the accused to provide the accused with his presentence report. CH. 188, 219.
§ 19.2-305.1 amended. Crimes; restitution for cleanup of illegal lab. Requires the court to order a defendant to pay the costs associated with the removal and remediation of an illegal drug lab site. CH. 591.
§ 19.2-305.4 amended. Criminal procedure; when interest is paid on an award of restitution. Provides that interest on an award of restitution runs from the date of the loss or damage unless the court specifically orders interest to run from a different date. CH. 79, 14.
§ 19.2-316.2 amended. Detention center incarceration. Provides that a sentence to a Detention Center Incarceration Program shall not be imposed as an addition to an active sentence to a state correctional facility. CH. 580, 512.
§ 19.2-316.3 amended. Diversion center incarceration program. Provides that participation in a diversion center incarceration program shall not be imposed in addition to an active sentence to a state correctional facility. CH. 604.
§ 8.01-654 amended; §§ 19.2-321.1 and 19.2-321.2 added. Delayed criminal appeal. Sets out a procedure for a defendant to move for leave to pursue a delayed appeal from circuit court to the Court of Appeals and from the Court of Appeals to the Supreme Court when an appeal in a criminal case was never initiated or was dismissed for failure to adhere to proper form, procedures and time limits due to error, neglect, or fault of counsel representing the appellant, or of the court reporter, or of the court or an officer or employee of the court. The motion must be made within six months of dismissal or of the lower court judgment, whichever is later. CH. 836.
§ 19.2-390 amended; § 19.2-390.02 added. Criminal procedure; Central Criminal Records Exchange. Requires, as of January 1, 2006, the law-enforcement agency making a report to the Exchange to include within its report, along with the fingerprints, a photograph of the individual arrested. The State Police and local law enforcement are required to establish written procedures for conducting in-person and photographic lineups. CH. 187, 229.
Execution of pregnant inmate. Requires the Department of Corrections to promulgate regulations assuring that no inmate will be executed while she is pregnant. CH. 155.
§ 46.2-388 amended. Electronic summons may be used for reportable motor vehicle law violations; citations. Provides that an electronic summons may be used in lieu of a paper summons for reportable motor vehicle violations. CH. 589.
§ 46.2-393 amended. Reckless driving; restricted license. Allows a judge to issue a restricted license when he has suspended the license of someone convicted of certain reckless driving offenses. Under current law there is no provision for the issuance of a restricted license for the following reckless driving offenses: faulty brakes; passing on a crest, grade or curve; obstructed view; impaired control; passing two vehicles abreast; driving two abreast in a single lane; passing at a railroad crossing; passing a stopped school bus; failing to give a signal; driving too fast for conditions; exceeding the speed limit; failing to yield right-of-way; and reckless driving on parking lots. Although discretionary with the judge, the period of suspension for these offenses is not less than 60 days nor more than six months. Another statute (§ 46.2-392) provides for a period of suspension of not less than 10 days nor more than six months for reckless driving and allows restricted licenses. CH. 152.
§§ 18.2-268.4 and 46.2-398 amended. Surrendered driver's licenses. Clarifies when a driver's license is retained by the court, returned to the defendant, or submitted to DMV when a defendant is convicted of an offense that requires or permits the revocation or suspension of the license. CH. 943.
§ 46.2-1077 amended. Video displays in motor vehicles. Prohibits drivers of motor vehicles from viewing any motion picture or video display while driving. CH. 913.