VIRGINIA
The Virginia General Assembly adjourned on March 16. For more information on legislation, please see http://legis.state.va.us/ Child Kidnapping: HB 214 clarifies that the initial decision to make a local or regional Amber Alert is at the discretion of the local or regional law-enforcement officials, but the local or regional lawenforcement officials must provide information regarding the abducted child to the State Police prior to issuing the alert. The initial decision to make a statewide Amber Alert is at the discretion of the State Police. College and University Police: HB 1392 allows private institutions of higher learning to enter into certain reciprocal agreements to the same extent as state-supported schools. Concealed Weapons: HB 215 requires that all applicants for a concealed handgun permit demonstrate “competence with a handgun” before a permit can be issued of renewed. Previously, all concealed handgun permit holders were registered in a central database with the state police before the license to carry was issued. However, there was no requirement in the law that permit applicants have any knowledge of how to use a gun prior to being granted permission to carry a handgun. The bill also expands the number of states whose concealed carry permits will be recognized in Virginia. It also allows the State Police to issue permits to non-Virginia residents who meet the same requirements as Virginia residents HB 402 provides that if an applicant for a concealed carry permit is not denied a permit and the permit has not been issued within 45 days of the application, then the clerk of the court must provide the applicant with a temporary permit for 90 days, pending issuance of a permanent permit. HB 444 clarifies that a resident of Virginia who moves from one jurisdiction to another is immediately considered a resident of the new jurisdiction for the purposes of receiving a concealed carry permit. Previously, some jurisdictions were requiring new residents to wait up to six months before applying for a permit. Under HB 167, machetes would be added to a list of weapons that may not be carried in a concealed manner. The law already prohibits a long list of items, including pistols and revolvers, as well as any dirk, bowie knife, switchblade knife, ballistic knife, razor, slingshot, spring stick, metal knucks or blackjack. Machetes have been used in several gang attacks in the state. SB 99 changes the law that governs which retired law enforcement officers are allowed to carry a concealed weapon without a permit. Previously, a retired law-enforcement officer qualified only if he/she had 15 years of service or retired with a law service-related disability. Under the new law, all retired officers 55 years or older qualify.
Domestic Violence: SB 550 changes the term “primary physical aggressor” to “predominant physical aggressor” in the law that requires arrest in most family abuse cases when the law-enforcement officer has probable cause to believe that family assault or violation of a protective order occurred. The officer is required to arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor, unless there are special circumstances that would dictate a course of action other than an arrest. The bill sets standards for determining who is the predominant physical aggressor. This bill is a recommendation of the Family Violence Subcommittee of the Virginia State Crime Commission. Under previous law, assault and battery against a family or household member was a Class 1 misdemeanor. If the offended has two previous convictions of assault and battery against a family or household member within the previous ten years, the offense was a Class 6 felony. HB 863 expands the list of previous offenses that raise the offense to a Class 6 felony. The result would be that assault and battery against a family or household member would be a Class 6 felony if the offender had been convicted twice within the previous ten years of any of the following offenses, in any combination, against a family or household member: assault and battery; malicious wounding; aggravated malicious wounding; or malicious bodily injury by means of a substance. HB 1233 / SB 236 increases the penalty for violation a protective order from a Class 1 misdemeanor to a Class 6 felony under certain circumstances. The felony offense would apply if the violator commits assault and battery upon the party protected by the order, or if the order is violated by furtively entering the home of the protected party. The bill also requires the Virginia Department of State Police and local law enforcement departments to establish arrest policies and procedures that provide guidance to law-enforcement officers on domestic violence incidents involving law-enforcement officers and repeat offenders. The bill will require that such policies and procedures include certain provisions relating to family abuse and domestic violence situations. It also requires the Department of Criminal Justice Services to establish training standards and publish a model policy for law-enforcement personnel in the handling of sexual assault and stalking cases and for local and regional sexual assault response teams. DNA: Under HB 776, arrests for attempts violent felonies will qualify for DNA sampling of the arrestee. Previously, attempts were not included. Drunk Driving: Lawmakers passed 25 new laws, some among the strictest in the nation, to reduce drunkendriving-related deaths and injuries on its roads. The bills largely target repeat offenders and drivers with a blood-alcohol content exceeding 0.15 percent, or nearly twice the legal limit of 0.08 percent. Among other changes, the new laws require at least a six-month jail sentence for three-time offenders; increase jail time for second- and third-time offenses and call for seizure of the vehicles of three-time offenders.
• •
• • •
•
• • •
•
• • •
HB 1130: Allow the state to seize the vehicle of people convicted three times of drunken driving. HB 1147 / SB 384: Increase jail time for second- and third-time DUI offenders. For a second offense within five years, the penalty would increase from at least five days in jail to at least 20 days. For a third conviction within five years, the current minimum of 30 days would be increased to six months. A third conviction within 10 years carries a minimum sentence of 90 days, up from 60. In addition, the bill also closes a loophole that allowed DUI charges to be dismissed upon conviction for reckless driving. HB 676: Call for permanent forfeiture of a driver's license after three DUIs. SB 442: People convicted of three DUI offenses within five years will be refused bail if they are charged with a new offense. SB 202: Establishes a zero-tolerance policy for people who already have been convicted of one DUI. If, within five years, a person is stopped again and has a blood-alcohol content as low as .02 percent, it would be punishable by a misdemeanor conviction, license suspension for at least one year and fines of up to $2,500. HB 127 / SB 202: Provide a three-year license suspension for a person with a prior DUI conviction who refuses to take a breath test. A repeat offender who refuses to take a bloodalcohol test at any time within 10 years after an initial conviction will be charged with a misdemeanor and face up to six months in jail and a $1,000 fine. If the individual has two or more previous convictions within 10 years, the maximum sentence is 12 months and a $2,500 fine. HB 557: Criminalizes driving on a DUI-restricted license. Anyone convicted of DUI who violates the requirements of a restricted driver’s license faces up to 12 months in jail, a $2,500 fine and loss of the license. HB 1138: Mandate ignition-locking systems in vehicles of those convicted of drunken driving with a blood-alcohol content of 0.15 percent or higher. Current law requires such installation only after a second or subsequent offense. HB 664: Allows a law-enforcement officer to arrest without a warrant a person who was involved in a motor vehicle accident within three hours of the occurrence of the accident at any location if the officer has probable cause to suspect that the person was driving or operating the motor vehicle while intoxicated. Under current law, the arrest must take place at the scene of the accident or at a hospital or medical facility to which the person has been transported. HB 667: People caught with a blood-alcohol level of .15 or greater face five days of mandatory jail time, even if they are first-time offenders. Those with a blood-alcohol level of .20 face a 10-day sentence. The thresholds for mandatory sentences under current law are .20 and .25, respectively. HB 1143 Repeat drunken drivers will be fined an additional $50. The money will be used to fund the state’s trauma centers. HB 1137: DUI offenders can be required to reimburse cities and counties up to $250 for firefighting, rescue and emergency services. Failure to pay reimbursement for a locality’s costs will result in a driver’s license suspension and vehicle registration cancellation. HB 1136: A convicted drunken driver’s license will be revoked for 30 days or until trial for a second alleged offense and 60 days or until trial for a third alleged offense. Current law requires a seven-day revocation in all cases.
•
HB 217: All first-time DUI convictions will now carry a minimum mandatory fine of $250. Previously, the fine applied only to people with an elevated blood alcohol content.
Evidence: SB 333 removes Virginia’s 21-day limit on convicted felons’ ability to introduce evidence of their innocence. State law prohibits judges from considering most claims of innocence if the evidence to support them surfaces more than three weeks after sentencing. A law passed in 2002 allowed convicts to present exculpatory DNA evidence that emerged after the three-week period. This bill will go further, ending the time limit for all new evidence. That would allow inmates to bring forward new information about fingerprints, witness statements or ballistics. Supporters of the measure called it sufficiently strict. The new evidence must have been available to the defendant or the defense attorney at the time of trial and could not by the "exercise of due diligence" have been uncovered before sentencing. The new evidence cannot simply corroborate other evidence presented during the trial. The bill applies only to those who pleaded not guilty, a relatively small portion of all pleas heard in the commonwealth each year. The only recourse now for a felon without DNA evidence to back up a claim of innocence is to seek a pardon from the governor. Under the bill, however, new evidence will be allowed to be presented only once. Governor Warner asked the General Assembly to remove this provision. While the Senate approved the Governor’s proposed change, it was defeated by the House. Warner signed the bill into law without the proposed change. Explosives: Under current law, it is a Class 6 felony for a convicted felon to possess or transport a firearm. HB 414 expands the offense to include the possession or transportation of any explosive material. Fetal Homicide: HB 1 / SB 319 will make it a crime to kill a human fetus during an assault on a pregnant woman. Under the fetal homicide law, a fetus will be treated as a separate victim when a pregnant woman is assaulted. Any person convicted of killing a fetus faces a prison sentence of five to 40 years. Firearms: HB 79 provides that a person who is not a citizen and is not lawfully present in the United States will be subject to punishment as a Class 6 felon for possession of any firearm. Previously, the law only prohibited the possession of assault weapons. Under SB 660, gun owners will have to leave their firearms at home or in the car when picking up and dropping off people at the airport. The bill prohibits everyone except law enforcement officers and approved airline employees from carrying a gun, ammunition or certain other weapons into an airport terminal, unless the item is checked with the passenger's luggage. The prohibition also would not apply to airline passengers retrieving the item from baggage claim or presenting the gun or ammunition to U.S. Customs agents in advance of an international flight. Violators would be charged with a Class 1 misdemeanor. Previous law allowed gun owners to
carry weapons into the terminal but not past the security checkpoint, although some airports already ban all guns on their property. SB 320 creates a state Racketeer Influenced and Corrupt Organization (RICO) Act, under which various violations of criminal statutes, including illegal gun trafficking, become racketeering crimes. Racketeering is punished as a felony with confinement of 5-40 years and a fine of not more than $1 million. A second or subsequent offense is a Class 2 felony and a fine of not more than $2 million. This will allow the state to target the assets and illegal profits of gun dealers and traffickers who conspire to illegally sell guns. Under HB 404, people with concealed weapons permits will no longer be subject to the state’s one-gun-a-month restriction. The bill also exempts purchases made by collectors for the purposes of improving their collection. HB 286 allows an off-duty law-enforcement officer to carry his handgun on school grounds. Previously, only a law-enforcement officer while engaged in his official duties could carry his weapon onto school grounds. The General Assembly also made several technical changes to the state’s firearms laws: • HB 1302 repeals Virginia’s law that only allows Virginia dealers to sell guns to nonresidents who live in contiguous states, and that only allows Virginia residents to make out of state purchases from dealers in contiguous states. • HB 484 eliminates the provision that allows counties with certain population densities to maintain records of handgun purchases. • HB 530 eliminates the grandfather clause in the state’s preemption statute. Previously any local ordinance passed prior to 1987 was still valid. Now, all regulation of firearms is under state control. • SB 227 eliminates the provision that allowed certain counties to require a permit to purchase a handgun, and requires that any records kept by the counties of these purchases be destroyed. Gangs: The General Assembly approved an anti-gang legislative package that increases the penalties for gang recruiting and gang-related crimes. SB 320 / HB 1123 creates a Virginia Racketeer Influenced and Corrupt Organization (RICO) Act. The new law allows law enforcement officials to target certain enterprises, such as street gangs, which are organized for the purpose of criminal activity. Under the Virginia RICO Act, participation in such a criminal enterprise is punishable as a felony in state courts, carrying a penalty of five to 40 years in prison and a fine of up to $1 million. Subsequent offenses are punishable as a Class 2 felony, which carries a penalty of 20 years to life in prison, plus a fine of up to $2 million. Gangs will also be subject to Virginia's asset forfeiture and seizure laws, so that authorities may confiscate property and proceeds from drug- or gun-running operations, or other criminal money-making ventures.
The bill also makes it a Class 1 misdemeanor for a person of any age to recruit another person into a criminal street gang. It makes it a Class 6 felony to force a person to become a gang member through the use or threat of force against that person or another person. In addition, the bill creates a “three-strikes” law for gang activity, dramatically increasing penalties for third gang-related offenses, and allows gang affiliation to be included in pre-sentencing reports in court. Gang-related crimes will also be included in the category of offenses for which there is a presumption against bail. HB 801 extends criminal liability to those who haze gang members. Currently, the law is limited to student victims. Immigration Enforcement: Under HB 570, state and local law enforcement will be allowed to arrest some illegal immigrants and detain them until federal agents arrive. The legislation arose from an anti-gang task force led by Attorney General Jerry Kilgore and is aimed at illegal immigrants who become involved in dangerous gangs that have taken root in parts of the state. The law will allow police only to arrest and hold illegal immigrants who have already been convicted of felonies and deported from the United States, only to return illegally. Police will be able to hold suspects as long as 72 hours without bond to allow federal immigration agents to pick them up. As originally introduced, the bill would have given state and local police much broader powers to enforce federal immigration laws. Juveniles: HB 1096 requires the taking of fingerprints and photographs of any juvenile who is taken into custody and charged with a delinquent act if the charge is one that has to be reported to the Central Criminal Records Exchange for an adult arrest (all felonies and most Class 1 and 2 misdemeanors except DUI, trespass and disorderly conduct). Under current law, this procedure is required only for juveniles 14 years of age or older who are charged with certain crimes classified as violent juvenile felonies. If the juvenile is found not guilty, the fingerprints and photographs are destroyed unless the charge was for a violent juvenile felony, in which case they are maintained in the Central Criminal Records Exchange and the juvenile court. Law Enforcement Privacy: HB 538 / SB 297 provides that records of the telephone numbers for cellular telephones, pagers, or comparable portable communication devices provided by a law-enforcement agency to its personnel for use in the performance of their official duties are exempt from the mandatory disclosure requirements of the Freedom of Information Act. Missing Children: SB 317 increases from 18 to 21 years the age of a person for whom a missing child report is filed when that person’s whereabouts is unknown and the person has been reported missing to a lawenforcement agency. The bill also requires the police or sheriff's office, upon receiving a missing child report, to enter the information into the Virginia Criminal Information Network, in addition to other data systems.
Retired Law Enforcement Officers: SB 648 requires law enforcement agencies, upon request, to provide retired officers with a photo identification card indicating that he/she is a retired law-enforcement officer. The bill also requires that such identification cards be provided upon request to law-enforcement officers who retired before July 1, 2004. School Safety: HB 1117 authorizes school boards to establish disciplinary policies prohibiting the possession of firearms on school property, school buses, and at school-sponsored activities by students, and authorizes schools to take disciplinary actions against students who violate such policies. SB 633 requires police to report all arrests made on school property directly to the school division superintendent, a move aimed at eliminating discrepancies between school and policereported crime data. Previous law required police to notify only the school principal of oncampus incidents. The bill requires direct notification of the superintendent as well. Theft: HB 592 increases the punishment for people who drive off without paying for gasoline to up to 12 months in jail and a $2,500 fine. The previous civil penalties of a maximum $100 fine and suspension of driver's license remain on the books. Traffic Safety: Under HB 257, people aged 80 or older will have to take a vision test at Department of Motor Vehicles offices or present the results of a private exam to renew their licenses. HB 87 prohibits the use of traffic signal preemption devices, which is used to change traffic signals from red to green. The bill also makes it illegal to sell these devices. The bill does not apply to law enforcement, fire-fighting, life-saving, or rescue vehicles or ambulances responding to an emergency call or operating in an emergency situation. HB 250 increases the penalty for reckless driving under certain circumstances. The bill will increase the penalty from a Class 1 misdemeanor to a Class 6 felony if the offender is driving with a suspended or revoked driver’s license, or if the reckless driving resulted in the death of another person. HB 593 increases the penalties for aggressive driving by allowing courts to suspend the driver’s license. Under HB 993, causing serious bodily injury to another person while racing a motor vehicle in a manner that shows a reckless disregard for human life is a Class 6 felony. The bill also requires the seizure and forfeiture of a convicted person’s vehicle and the surrender of his/her driver’s license for one to three years. SB 421 makes noncompliance with traffic light signals a traffic infraction punishable by a fine of no more than $350.
MEASURES CONSIDERED: Drugged Driving: The House passed a bill (HB 614) that would have made driving after ingesting any amount of illegally possessed Schedule I and Schedule II drugs a violation of the DUI statute and a Class 2 misdemeanor (jail time up to six months and a maximum fine of $1,000). In addition, people convicted of this offense would have had to forfeit their operators’ license for a period up to 12 months and be eligible for Virginia Alcohol Safety Action Programs. Firearms: The Senate defeated a bill (SB 48) that would have required unlicensed gun sellers to perform background checks at gun shows. The bill would have required hobbyists and any other unlicensed gun dealers to receive clearance from the Virginia State Police that a potential buyer is not barred from owning a firearm. Current law requires all licensed dealers to conduct background checks on interested buyers but does not apply to transactions between private individuals. The bill had been passed by two Senate committees. The Senate Courts of Justice Committee defeated two bills related to taking concealed guns into bars and restaurants where alcohol is served. Current law prohibits licensed concealed weapon owners from taking their weapons into any bar or restaurant that serves alcohol. Guns are permitted in restaurants in Virginia if they are in plain view. SB 522 would have banned all guns from bars and restaurants that have a license to sell alcohol. SB 579 would have permitted concealed weapons in bars and restaurants if the holder did not have a blood alcohol content greater than .02 percent. Impersonating a Law Enforcement Officer: The House Justice Committee passed a bill (HB 66) that would have increased the penalty for impersonating a police officer under certain circumstances. Currently, it is a Class 1 misdemeanor to impersonate a law enforcement officer. The bill would have increased the offense to a Class 6 felony if a person impersonated a law enforcement officer while committing any one of the following offenses: murder, mob or gang crimes, kidnapping, assault, robbery, extortion, and sexual assault. Motorcycle Safety: The House defeated a bill (HB 374) that would have let motorcyclists 21 and older ride without helmets. The bill, which was defeated 51-48, would have allowed motorcyclists to obtain a permit to ride without a helmet if they were 21 and older, paid a $150 fee, taken a motorcycle course and proved they have medical insurance. Traffic Safety: The Senate passed a bill (SB 92) that would have allowed cities and counties across the state to use cameras to catch drivers who run red lights. However, the bill was defeated by the House Militia, Police and Public Safety Committee. That committee also defeated legislation (HB 176) that would have lifted the July 1, 2005 sunset for the seven localities that currently use the cameras.
The Senate also passed a bill (SB 235) that would have allowed police officers to stop and ticket motorists for failing to use seat belts. Current law says such drivers can be ticketed only if they're pulled over for another traffic infraction. The bill also would have prohibited law enforcement officers from searching a motor vehicle, its contents, the driver or passengers solely because of a safety belt violation, unless supported by probable cause or concern. The bill was killed in the House Militia, Police and Public Safety Committee. The House Justice Committee and Transportation Committee approved a bill (HB 51) that would have increased the penalties for eluding police officers. Under current law, it is a Class 6 felony to attempt to elude police in such a way as to interfere with a law enforcement vehicle or to endanger another person. The bill would have raised the offense to a Class 5 felony if such attempt to elude police resulted in an injury or death. Underage Drinking: The House and a Senate committee passed a bill that would increase the penalties for minors caught with alcohol. It also makes it clear that it is illegal for a minor to consume, purchase or possess alcohol. Currently, the law does not specifically address the act of consumption of alcoholic beverages by a person under the age of 21. Anyone convicted of underage consumption of alcohol would be found guilty of a Class I misdemeanor. The bill will be considered in the next session.