2013 FBA DWI CLE - Virginia General Assembly Criminal Law Update
Content
2013 VIRGINIA GENERAL ASSEMBLY CRIMINAL LAW UPDATE
Fairfax Bar Association Annual DWI CLE March 20, 2013
By Delegate Scott A. Surovell
PASSED
(Not Amended or Signed by Governor Yet)
Criminal Procedure
HB1308 – Writ of Actual Innocence (Habeeb) Provides that juvenile adjudicated delinquent of felony offense may petition Supreme Court to issue writ of actual innocence on the basis of biological or non‐biological evidence regardless of plea or classification of felony. Currently, petitions are limited to (i) in the case of biological evidence, Class 1 or Class 2 Felonies or equivalent felony upon any plea or of any other felony upon a plea of not guilty or (ii) in the case of non‐biological evidence, of any felony upon a plea of not guilty. HB1432 – Writ of Actual Innocence (Albo) Clarifies that petition must allege that no rational trier of fact “would” have found defendant guilty instead of “could” have found guilty. HB1311/SB1118 – Appeal of Bond Decision (Hope/McDougle) Allows General District Court to stay execution of bond order pending expedited Circuit Court appeal by Commonwealth, but before release. HB1358/SB1128 – Impersonating Local Law Enforcement Officer (Cox/McDougle) Adds federal law‐enforcement officers and any local, city, county, and state law‐enforcement officers to the list of law‐enforcement officers for which it is a Class 1 misdemeanor to falsely assume or exercise the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or peace officer, or to falsely assume or pretend to be any such officer. HB1376 – Field Tests in Prison Drug Possessions Allows officer to testify about results of field tests in felony drug possessions committed by prisoners. HB1746/SB1214 – Definition of Violent Felony (Gilbert/Stuart) Enhances offenses that qualify as violent felonies for purposes of sentencing guidelines. HB2120/2122 & SB997/1006 – SANE Evidence from Incapacitated Victim (Herring) Authorizes a licensed physician, physician assistant, nurse practitioner, or registered nurse to take x‐ rays, other imaging, or perform a physical evidence recovery kit examination for a person who is
believed to be the victim of a sexual assault and who is incapable of making an informed decision regarding consent to such examination when there is a need to conduct the examination, no legally authorized representative is available to provide consent, and a capacity reviewer provides written certification that the person is incapable of providing informed consent and that the examination should be performed. HB2269/SB832 – Prohibits Concurrent Sentences for Child Sex Offenses (Bell/Stuart) Provides that the sentence of a person convicted of certain pornography offenses that carry a five‐year mandatory minimum term must serve that term consecutively with any other sentence imposed. The offenses include a second offense involving the reproduction, transmission, or distribution of child pornography or the solicitation of child pornography in order to gain entry into a group engaged in trading or sharing child pornography. HB2338 – Appeals on Erroneously Entered Evidence (Miller) Provides that when a criminal conviction is appealed based on a claim that the evidence to convict was insufficient because the trial court improperly admitted evidence, the reviewing court shall consider all evidence admitted at trial to determine whether there is sufficient evidence to sustain the conviction. If the reviewing court determines that evidence was erroneously admitted and that such error was not harmless, the case must be remanded for a new trial if the Commonwealth so elects. SB847 – Magistrate May Require Fingerprints Before Release Provides that a judicial officer may require as a condition of release on bail that the accused accompany the arresting officer to the jurisdiction's fingerprinting facility to have his photograph and fingerprints taken prior to his release. The bill also provides that the fingerprints and photograph may be taken wherever the magistrate is located, including at a regional jail, even though the accused is not committed to jail. SB870 – Contempt Appeal ‐ Allows Trial Without Jury (Stanley) Provides that a circuit judge shall, sitting without a jury, hear an appeal from a summary contempt judgment of the district court. (Constitutional?) SB1135 – Appearance of Parties for Continuance (Norment) Provides that when the court grants a continuance in advance of the date of a scheduled trial or hearing, if the defendant acknowledges in writing, on a form provided by the Office of the Executive Secretary of the Supreme Court, that he promises to appear in court on the date and time of the newly scheduled trial or hearing, the court shall not require counsel or the defendant to appear on the date when the trial or hearing was originally scheduled. However, if the defendant is in violation of the terms of his pretrial release or has failed to appear at any court proceeding, the court may require the defendant to appear on the date when the trial or hearing was originally scheduled as a condition of any continuance granted. 2
New Offenses
HB1907/SB1222 – Texting While Driving (Anderson, et al.) Makes texting while driving a primary offense. First offense has minimum fine of $250. Second offense $500. Clarifies that Reckless Driving can be charged concurrently. HB1682/SB706 – Financial Exploitation of Elderly (Bell/Stuart) Provides that it is unlawful for any person who knows or should know that another person suffers from mental incapacity to, through the use of that other person's mental incapacity, take, obtain, or convert money or other thing of value belonging to that other person with the intent to permanently deprive him thereof. A violation is punishable as larceny. HB1720 ‐ Selling Alcoholic Beverages to Minors (Head) Creates offense for not requesting ID – excludes student ID from acceptable ID. Exempts licensee from ABC violation. HB1745/SB1031 – Indecent Liberties With Child by Electronic Means (Gilbert) Creates new offense for adult to ask child to fondle themselves by electronic means. HB1806 – Possession of Methamphetamine Precursors (Garrett) Adds ammonium nitrate to list of prohibited substances and lithium. HB1816 – Prohibition of Children During Methamphetamine Manufacturing (Kilgore) Provides that any person 18 years of age or older who knowingly allows a child younger than 15 years of age or a mentally incapacitated or physically helpless person to be present in the same dwelling, apartment, unit of a hotel, garage, shed, or vehicle during the manufacture or attempted manufacture of methamphetamine is guilty of a felony punishable by imprisonment for not less than 10 nor more than 40 years. Currently, the prohibition applies only to a child in care or custody of the miscreant. HB1941/1843 (SB1083) – Adds Possession of Bath Salts as Synthetic Cannaboids (Garrett) Amends provisions added to the Code in previous years regarding the criminalization of synthetic cannabinoids and chemicals known as "research chemicals" (previously referred to as "bath salts") to add newly identified chemical compounds and structural classes. In addition to adding new chemical compounds as synthetic cannabinoids, the bill adds newly identified structural classes of synthetic cannabinoids so that new chemical compounds that fit within the structural class will nevertheless be considered synthetic cannabinoids without the precise chemical compound having to be added to the Code. HB1955 – Impersonating a Sheriff (Landes) Provides that any unauthorized person who wears a uniform identical to or substantially similar to a standard uniform used by an office of sheriff to impersonate the office of sheriff is guilty of a Class 1 misdemeanor (currently a Class 3 misdemeanor). The bill adds new punishment for a second or subsequent such offense: a Class 6 felony. The bill also adds the same new punishment for a second or
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subsequent offense of impersonating a law‐enforcement officer or other public safety personnel, currently a Class 1 misdemeanor for any such offense. HB1981 – Deceptive Installation of Electronic Tracking Devices (May) Provides that any person who installs or places an electronic tracking device through intentionally deceptive means and without consent and uses it to track the location of another person is guilty of a Class 3 misdemeanor. The bill includes exceptions. HB2294 – Carnal Knowledge of Defendant on Bond (Wilt) Provides that an accused is guilty of carnal knowledge of a pretrial defendant or posttrial offender if he (i) is an owner or employee of the bail bond company that posted the pretrial defendant's or posttrial offender's bond, (ii) has the authority to revoke the pretrial defendant's or posttrial offender's bond, and (iii) carnally knows, without use of force, threat, or intimidation, a pretrial defendant or posttrial offender. Such offense is a Class 1 misdemeanor.
Repealed Crimes
SB969 – Lewd & Lascivious Cohabitation (Ebbin) Eliminates 1887 law by repeal the crime of lewd and lascivious cohabitation by unmarried persons and the crime of open and gross lewdness and lasciviousness. SB1144 – Conversion of Leased Property (McEachin) Provides that failure to return leased property to the lessor within 30, as opposed to 10, days after written notice has been given that the rental period for the property has expired is prima facie evidence of the intent to defraud and provides that failure to return leased property within 30, as opposed to 10, days of the expiration of the lease is to be deemed larceny.
Enhanced Punishments
HB1559/SB1559 – DWI Fourth Offense Felony (Morris/Norment) Provides that any person convicted of a felony DUI offense (including DUI manslaughter and DUI maiming, by motor vehicle or watercraft) is guilty of a Class 6 felony for any subsequent DUI conviction, that punishment includes a mandatory minimum term of imprisonment of one year, and the person is subject to the same driver's license revocation provision as for a third or subsequent DUI conviction within 10 years, which means that the person can petition for reinstatement of his driver's license five years after the date of his last conviction. HB1684/SB1010 – Identity Theft Penalties (Bell/Stanley) Raises punishment for identity theft to a Class 4 Felony and/or Class 5 Felony. HB1751 – A&B of Sex Offender Guard (Miller) Adds employee of employee of sexually violent predator facility to definition of law enforcement officer.
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HB1850 – A&B of Local & Regional Correctional Facilities (Albo) Adds employees of local or regional correctional facilities to the enhanced penalty provision so that the assault and battery of such an officer who is engaged in the performance of his public duties is a Class 6 felony, with a six‐month mandatory minimum term of confinement. HB1927 – A&B of EMS Technician (Morris) Adds emergency medical services personnel members who are employed by or volunteers of an emergency medical services agency and engaged in the performance of their public duties to the list of individuals of whom assault and battery may be a Class 6 felony with a six‐month mandatory minimum sentence. SB853 – A&B of Magistrate (Petersen) Elevates the punishment for committing an assault and battery against a magistrate who is engaged in the performance of his public duties from a Class 1 misdemeanor to a Class 6 felony, with a six‐month mandatory minimum term of confinement. HB2211 – Stalking Repeated Offense (McClellan) Provides that, upon conviction of a second offense of stalking occurring within five years of a prior conviction of such an offense, if such person was also convicted within the five‐year period prior to the instant offense of a violation of (i) assault and battery and other crimes against the person when the victim of that crime was the same person who was the victim of the stalking activity in the instant conviction, (ii) domestic assault, or (iii) a protective order, such person is guilty of a Class 6 felony. HB1606/SB1015 – Solicitation of Prostitution From Minor (Hugo/Howell) Provides that, in addition to the current Class 1 misdemeanor punishment for solicitation of prostitution generally, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony. HB1847/SB1205 – Criminal Street Gang Predicate Offenses (Albo/McDougle) Expands offenses that can be consider predicate offenses associated with gang activity. SB1378 – Selling Firearms to Prohibited Person (Garrett) Provides that any person who sells, barters, gives, etc., any firearm to any person he knows is prohibited from possessing or transporting a firearm under Virginia law is guilty of a Class 4 felony. Under current law, the penalty for such offense is a Class 6 felony.
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Other Bills of Note to Criminal Law Practitioners
HB1642/SB908 – Parental Rights (Pogge/Reeves) Provides that a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child. The bill further provides that the provisions of the bill codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, issued on January 10, 2013, as it relates to parental rights. HB2291 – Proceeds from Commissary (Stolle) Allows stores in local correctional facilities to provide services as well as articles and provides that proceeds that are generated from a source other than inmate accounts may be used for the general operation of the sheriff's office. HB2308 – Electronic Visitation in Local Jails (Knight) Adds Voice‐over‐Internet Protocol technology and web‐based communication systems used for communication between prisoners and third parties to the types of communication systems for which sheriffs and jail superintendents may charge a fee, except in cases in which the prisoner and the third party are located in the correctional facility or appurtenance thereto operated or controlled by the sheriff or jail superintendent, in which case the sheriff or jail superintendent must provide the service free of charge. HB1892 – Child Sexual Abuse Statute of Limitations (Lemunyon) Clarifies that the discovery rule used to determine when a cause of action for childhood sexual abuse accrues upon the later of the removal of the disability of infancy or incapacity or when the fact of the injury and its causal connection to the abuse is first communicated to the injured person. SB1112 – Exemplary Damages for DWI (McDougle (Surovell)) Provides that in an action for personal injury or death arising from the operation of a motor vehicle, engine, or train, a defendant's conduct will be deemed so willful and wanton as to show a conscious disregard for the rights of others, thus entitling the plaintiff to an award of exemplary damages, if the defendant's blood alcohol concentration (BAC) was or exceeded 0.15 at the time of the incident or at the time the blood or breath test was performed. Currently, only the defendant's BAC at the time of the incident is considered. HB1451/SB979 – GDC Retention of Records (Northam) Permits the chief judge of a general district court to direct the clerk of that court to destroy documents related to civil and criminal cases that have been ended for a period of three years, provided that they have been microfilmed or converted to an electronic format. Currently, such documents must be retained for 10 years HB1643/SB1016 – Protective Orders Exempt From Stay Pending Appeal (Watts/Howell) Clarifies that a protective order entered due to a violation of an initial protective order shall remain in 6
effect upon petition for or the pendency of an appeal. The bill also includes family abuse protective orders issued in conjunction with a family abuse disposition among other protective orders that are not stayed upon appeal. This bill is a recommendation of the Committee on District Courts.
Notable Rejected Legislation
HB1766/SB1114 – Prior sex crimes admissible in child sex crime cases (Bell, Yost, et al.) Provides that in a criminal case in which the defendant is accused of an offense of sexual abuse, evidence of the defendant's conviction of another offense or offenses of sexual abuse is admissible and may be considered for its bearing on any matter to which it is relevant. The bill includes a second enactment requiring this new rule of evidence to be applied in conjunction with the Virginia rules of evidence HB1647 – Out‐of‐State DUI Ignition Interlock (Farrell) Requires that a Virginia resident who is convicted of a (substantially similar) DUI in another state comply with Virginia ignition interlock requirements. HB1911 – Judicial Council to Study Law Clerks (Surovell) Directs Judicial Council to report on the number of law clerks in use in Virginia Circuit Courts. HB1914 – Civil Action for Unauthorized sale, publication of expunged charges (Surovell) Provides that any person who sells, offers for sale, publicizes, or offers for publication the criminal history record information of another person pertaining to that other person's arrest or charge for a criminal offense more than 120 days after the State Police has confirmed to the person charged or arrested that such information has been expunged when the person selling, offering for sale, etc., knows or has reason to know that the information has been expunged shall be liable to the other person for actual damages or $500, whichever is greater, in addition to attorney fees and costs. HB2007 – Remote Testimony of Lab Technicians (Cline) Allows for the use of two‐way electronic video and audio communication to obtain the testimony of custodians of records, lab analysts, or certain other witnesses, upon motion of the attorney for the Commonwealth, if the defendant objects to the admission of an affidavit, certificate of analysis, or other similar document into evidence, if certain standards for the use of such technology are met. HB2008 – No Work Release for Mandatory Minimum Sentences (Cline) Clarifies that no person while serving that portion of a sentence that is a mandatory minimum is eligible for work release, unless such person is participating in a work or education program operated by or under contract with the Department of Juvenile Justice. SB740 – Increase Mandatory Retirement Age from 70 to 73 (Petersen) Increases the mandatory retirement age under the Judicial Retirement System from 70 years of age to 73 years of age.
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Fairfax Bar Association Annual DWI CLE March 20, 2013
By Delegate Scott A. Surovell
PASSED
(Not Amended or Signed by Governor Yet)
Criminal Procedure
HB1308 – Writ of Actual Innocence (Habeeb) Provides that juvenile adjudicated delinquent of felony offense may petition Supreme Court to issue writ of actual innocence on the basis of biological or non‐biological evidence regardless of plea or classification of felony. Currently, petitions are limited to (i) in the case of biological evidence, Class 1 or Class 2 Felonies or equivalent felony upon any plea or of any other felony upon a plea of not guilty or (ii) in the case of non‐biological evidence, of any felony upon a plea of not guilty. HB1432 – Writ of Actual Innocence (Albo) Clarifies that petition must allege that no rational trier of fact “would” have found defendant guilty instead of “could” have found guilty. HB1311/SB1118 – Appeal of Bond Decision (Hope/McDougle) Allows General District Court to stay execution of bond order pending expedited Circuit Court appeal by Commonwealth, but before release. HB1358/SB1128 – Impersonating Local Law Enforcement Officer (Cox/McDougle) Adds federal law‐enforcement officers and any local, city, county, and state law‐enforcement officers to the list of law‐enforcement officers for which it is a Class 1 misdemeanor to falsely assume or exercise the functions, powers, duties, and privileges incident to the office of sheriff, police officer, marshal, or peace officer, or to falsely assume or pretend to be any such officer. HB1376 – Field Tests in Prison Drug Possessions Allows officer to testify about results of field tests in felony drug possessions committed by prisoners. HB1746/SB1214 – Definition of Violent Felony (Gilbert/Stuart) Enhances offenses that qualify as violent felonies for purposes of sentencing guidelines. HB2120/2122 & SB997/1006 – SANE Evidence from Incapacitated Victim (Herring) Authorizes a licensed physician, physician assistant, nurse practitioner, or registered nurse to take x‐ rays, other imaging, or perform a physical evidence recovery kit examination for a person who is
believed to be the victim of a sexual assault and who is incapable of making an informed decision regarding consent to such examination when there is a need to conduct the examination, no legally authorized representative is available to provide consent, and a capacity reviewer provides written certification that the person is incapable of providing informed consent and that the examination should be performed. HB2269/SB832 – Prohibits Concurrent Sentences for Child Sex Offenses (Bell/Stuart) Provides that the sentence of a person convicted of certain pornography offenses that carry a five‐year mandatory minimum term must serve that term consecutively with any other sentence imposed. The offenses include a second offense involving the reproduction, transmission, or distribution of child pornography or the solicitation of child pornography in order to gain entry into a group engaged in trading or sharing child pornography. HB2338 – Appeals on Erroneously Entered Evidence (Miller) Provides that when a criminal conviction is appealed based on a claim that the evidence to convict was insufficient because the trial court improperly admitted evidence, the reviewing court shall consider all evidence admitted at trial to determine whether there is sufficient evidence to sustain the conviction. If the reviewing court determines that evidence was erroneously admitted and that such error was not harmless, the case must be remanded for a new trial if the Commonwealth so elects. SB847 – Magistrate May Require Fingerprints Before Release Provides that a judicial officer may require as a condition of release on bail that the accused accompany the arresting officer to the jurisdiction's fingerprinting facility to have his photograph and fingerprints taken prior to his release. The bill also provides that the fingerprints and photograph may be taken wherever the magistrate is located, including at a regional jail, even though the accused is not committed to jail. SB870 – Contempt Appeal ‐ Allows Trial Without Jury (Stanley) Provides that a circuit judge shall, sitting without a jury, hear an appeal from a summary contempt judgment of the district court. (Constitutional?) SB1135 – Appearance of Parties for Continuance (Norment) Provides that when the court grants a continuance in advance of the date of a scheduled trial or hearing, if the defendant acknowledges in writing, on a form provided by the Office of the Executive Secretary of the Supreme Court, that he promises to appear in court on the date and time of the newly scheduled trial or hearing, the court shall not require counsel or the defendant to appear on the date when the trial or hearing was originally scheduled. However, if the defendant is in violation of the terms of his pretrial release or has failed to appear at any court proceeding, the court may require the defendant to appear on the date when the trial or hearing was originally scheduled as a condition of any continuance granted. 2
New Offenses
HB1907/SB1222 – Texting While Driving (Anderson, et al.) Makes texting while driving a primary offense. First offense has minimum fine of $250. Second offense $500. Clarifies that Reckless Driving can be charged concurrently. HB1682/SB706 – Financial Exploitation of Elderly (Bell/Stuart) Provides that it is unlawful for any person who knows or should know that another person suffers from mental incapacity to, through the use of that other person's mental incapacity, take, obtain, or convert money or other thing of value belonging to that other person with the intent to permanently deprive him thereof. A violation is punishable as larceny. HB1720 ‐ Selling Alcoholic Beverages to Minors (Head) Creates offense for not requesting ID – excludes student ID from acceptable ID. Exempts licensee from ABC violation. HB1745/SB1031 – Indecent Liberties With Child by Electronic Means (Gilbert) Creates new offense for adult to ask child to fondle themselves by electronic means. HB1806 – Possession of Methamphetamine Precursors (Garrett) Adds ammonium nitrate to list of prohibited substances and lithium. HB1816 – Prohibition of Children During Methamphetamine Manufacturing (Kilgore) Provides that any person 18 years of age or older who knowingly allows a child younger than 15 years of age or a mentally incapacitated or physically helpless person to be present in the same dwelling, apartment, unit of a hotel, garage, shed, or vehicle during the manufacture or attempted manufacture of methamphetamine is guilty of a felony punishable by imprisonment for not less than 10 nor more than 40 years. Currently, the prohibition applies only to a child in care or custody of the miscreant. HB1941/1843 (SB1083) – Adds Possession of Bath Salts as Synthetic Cannaboids (Garrett) Amends provisions added to the Code in previous years regarding the criminalization of synthetic cannabinoids and chemicals known as "research chemicals" (previously referred to as "bath salts") to add newly identified chemical compounds and structural classes. In addition to adding new chemical compounds as synthetic cannabinoids, the bill adds newly identified structural classes of synthetic cannabinoids so that new chemical compounds that fit within the structural class will nevertheless be considered synthetic cannabinoids without the precise chemical compound having to be added to the Code. HB1955 – Impersonating a Sheriff (Landes) Provides that any unauthorized person who wears a uniform identical to or substantially similar to a standard uniform used by an office of sheriff to impersonate the office of sheriff is guilty of a Class 1 misdemeanor (currently a Class 3 misdemeanor). The bill adds new punishment for a second or subsequent such offense: a Class 6 felony. The bill also adds the same new punishment for a second or
3
subsequent offense of impersonating a law‐enforcement officer or other public safety personnel, currently a Class 1 misdemeanor for any such offense. HB1981 – Deceptive Installation of Electronic Tracking Devices (May) Provides that any person who installs or places an electronic tracking device through intentionally deceptive means and without consent and uses it to track the location of another person is guilty of a Class 3 misdemeanor. The bill includes exceptions. HB2294 – Carnal Knowledge of Defendant on Bond (Wilt) Provides that an accused is guilty of carnal knowledge of a pretrial defendant or posttrial offender if he (i) is an owner or employee of the bail bond company that posted the pretrial defendant's or posttrial offender's bond, (ii) has the authority to revoke the pretrial defendant's or posttrial offender's bond, and (iii) carnally knows, without use of force, threat, or intimidation, a pretrial defendant or posttrial offender. Such offense is a Class 1 misdemeanor.
Repealed Crimes
SB969 – Lewd & Lascivious Cohabitation (Ebbin) Eliminates 1887 law by repeal the crime of lewd and lascivious cohabitation by unmarried persons and the crime of open and gross lewdness and lasciviousness. SB1144 – Conversion of Leased Property (McEachin) Provides that failure to return leased property to the lessor within 30, as opposed to 10, days after written notice has been given that the rental period for the property has expired is prima facie evidence of the intent to defraud and provides that failure to return leased property within 30, as opposed to 10, days of the expiration of the lease is to be deemed larceny.
Enhanced Punishments
HB1559/SB1559 – DWI Fourth Offense Felony (Morris/Norment) Provides that any person convicted of a felony DUI offense (including DUI manslaughter and DUI maiming, by motor vehicle or watercraft) is guilty of a Class 6 felony for any subsequent DUI conviction, that punishment includes a mandatory minimum term of imprisonment of one year, and the person is subject to the same driver's license revocation provision as for a third or subsequent DUI conviction within 10 years, which means that the person can petition for reinstatement of his driver's license five years after the date of his last conviction. HB1684/SB1010 – Identity Theft Penalties (Bell/Stanley) Raises punishment for identity theft to a Class 4 Felony and/or Class 5 Felony. HB1751 – A&B of Sex Offender Guard (Miller) Adds employee of employee of sexually violent predator facility to definition of law enforcement officer.
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HB1850 – A&B of Local & Regional Correctional Facilities (Albo) Adds employees of local or regional correctional facilities to the enhanced penalty provision so that the assault and battery of such an officer who is engaged in the performance of his public duties is a Class 6 felony, with a six‐month mandatory minimum term of confinement. HB1927 – A&B of EMS Technician (Morris) Adds emergency medical services personnel members who are employed by or volunteers of an emergency medical services agency and engaged in the performance of their public duties to the list of individuals of whom assault and battery may be a Class 6 felony with a six‐month mandatory minimum sentence. SB853 – A&B of Magistrate (Petersen) Elevates the punishment for committing an assault and battery against a magistrate who is engaged in the performance of his public duties from a Class 1 misdemeanor to a Class 6 felony, with a six‐month mandatory minimum term of confinement. HB2211 – Stalking Repeated Offense (McClellan) Provides that, upon conviction of a second offense of stalking occurring within five years of a prior conviction of such an offense, if such person was also convicted within the five‐year period prior to the instant offense of a violation of (i) assault and battery and other crimes against the person when the victim of that crime was the same person who was the victim of the stalking activity in the instant conviction, (ii) domestic assault, or (iii) a protective order, such person is guilty of a Class 6 felony. HB1606/SB1015 – Solicitation of Prostitution From Minor (Hugo/Howell) Provides that, in addition to the current Class 1 misdemeanor punishment for solicitation of prostitution generally, any person who solicits prostitution from a minor (i) 16 years of age or older is guilty of a Class 6 felony or (ii) younger than 16 years of age is guilty of a Class 5 felony. HB1847/SB1205 – Criminal Street Gang Predicate Offenses (Albo/McDougle) Expands offenses that can be consider predicate offenses associated with gang activity. SB1378 – Selling Firearms to Prohibited Person (Garrett) Provides that any person who sells, barters, gives, etc., any firearm to any person he knows is prohibited from possessing or transporting a firearm under Virginia law is guilty of a Class 4 felony. Under current law, the penalty for such offense is a Class 6 felony.
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Other Bills of Note to Criminal Law Practitioners
HB1642/SB908 – Parental Rights (Pogge/Reeves) Provides that a parent has a fundamental right to make decisions concerning the upbringing, education, and care of the parent's child. The bill further provides that the provisions of the bill codify the opinion of the Supreme Court of Virginia in L.F. v. Breit, issued on January 10, 2013, as it relates to parental rights. HB2291 – Proceeds from Commissary (Stolle) Allows stores in local correctional facilities to provide services as well as articles and provides that proceeds that are generated from a source other than inmate accounts may be used for the general operation of the sheriff's office. HB2308 – Electronic Visitation in Local Jails (Knight) Adds Voice‐over‐Internet Protocol technology and web‐based communication systems used for communication between prisoners and third parties to the types of communication systems for which sheriffs and jail superintendents may charge a fee, except in cases in which the prisoner and the third party are located in the correctional facility or appurtenance thereto operated or controlled by the sheriff or jail superintendent, in which case the sheriff or jail superintendent must provide the service free of charge. HB1892 – Child Sexual Abuse Statute of Limitations (Lemunyon) Clarifies that the discovery rule used to determine when a cause of action for childhood sexual abuse accrues upon the later of the removal of the disability of infancy or incapacity or when the fact of the injury and its causal connection to the abuse is first communicated to the injured person. SB1112 – Exemplary Damages for DWI (McDougle (Surovell)) Provides that in an action for personal injury or death arising from the operation of a motor vehicle, engine, or train, a defendant's conduct will be deemed so willful and wanton as to show a conscious disregard for the rights of others, thus entitling the plaintiff to an award of exemplary damages, if the defendant's blood alcohol concentration (BAC) was or exceeded 0.15 at the time of the incident or at the time the blood or breath test was performed. Currently, only the defendant's BAC at the time of the incident is considered. HB1451/SB979 – GDC Retention of Records (Northam) Permits the chief judge of a general district court to direct the clerk of that court to destroy documents related to civil and criminal cases that have been ended for a period of three years, provided that they have been microfilmed or converted to an electronic format. Currently, such documents must be retained for 10 years HB1643/SB1016 – Protective Orders Exempt From Stay Pending Appeal (Watts/Howell) Clarifies that a protective order entered due to a violation of an initial protective order shall remain in 6
effect upon petition for or the pendency of an appeal. The bill also includes family abuse protective orders issued in conjunction with a family abuse disposition among other protective orders that are not stayed upon appeal. This bill is a recommendation of the Committee on District Courts.
Notable Rejected Legislation
HB1766/SB1114 – Prior sex crimes admissible in child sex crime cases (Bell, Yost, et al.) Provides that in a criminal case in which the defendant is accused of an offense of sexual abuse, evidence of the defendant's conviction of another offense or offenses of sexual abuse is admissible and may be considered for its bearing on any matter to which it is relevant. The bill includes a second enactment requiring this new rule of evidence to be applied in conjunction with the Virginia rules of evidence HB1647 – Out‐of‐State DUI Ignition Interlock (Farrell) Requires that a Virginia resident who is convicted of a (substantially similar) DUI in another state comply with Virginia ignition interlock requirements. HB1911 – Judicial Council to Study Law Clerks (Surovell) Directs Judicial Council to report on the number of law clerks in use in Virginia Circuit Courts. HB1914 – Civil Action for Unauthorized sale, publication of expunged charges (Surovell) Provides that any person who sells, offers for sale, publicizes, or offers for publication the criminal history record information of another person pertaining to that other person's arrest or charge for a criminal offense more than 120 days after the State Police has confirmed to the person charged or arrested that such information has been expunged when the person selling, offering for sale, etc., knows or has reason to know that the information has been expunged shall be liable to the other person for actual damages or $500, whichever is greater, in addition to attorney fees and costs. HB2007 – Remote Testimony of Lab Technicians (Cline) Allows for the use of two‐way electronic video and audio communication to obtain the testimony of custodians of records, lab analysts, or certain other witnesses, upon motion of the attorney for the Commonwealth, if the defendant objects to the admission of an affidavit, certificate of analysis, or other similar document into evidence, if certain standards for the use of such technology are met. HB2008 – No Work Release for Mandatory Minimum Sentences (Cline) Clarifies that no person while serving that portion of a sentence that is a mandatory minimum is eligible for work release, unless such person is participating in a work or education program operated by or under contract with the Department of Juvenile Justice. SB740 – Increase Mandatory Retirement Age from 70 to 73 (Petersen) Increases the mandatory retirement age under the Judicial Retirement System from 70 years of age to 73 years of age.
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