General Assembly>Division of Legislative Services>Publications>Session Summaries>2005>Criminal Procedure

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Criminal Procedure

Passed

P HB1542

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.
Patron - Black

P HB1666

Conservators of the peace. Provides that attorneys for the Commonwealth are conservators of the peace.
Patron - Lingamfelter

P HB1676

Free criminal history check for a Crime Stoppers, Crime Solvers or a Crime Line program board member. Provides that any board member or any person who has been offered membership on the board of a Crime Stoppers, Crime Solvers or Crime Line program shall not be required to pay for a criminal history records check for appointment to such a board.
Patron - Cosgrove

P HB1812

Execution of pregnant inmate. Requires the Department of Corrections to promulgate regulations assuring that no inmate will be executed while she is pregnant.
Patron - Marshall, R.G.

P HB1977

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. This bill is identical to SB 1177 and incorporates HB 2778 and HB 2813.
Patron - Janis

P HB2006

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. This bill is identical to SB 695.
Patron - Armstrong

P HB2114

Detention center incarceration. Provides that a sentence to a Detention Center Incarceration Program shall not be in addition to an active sentence to a state correctional facility. This bill is identical to SB 1168.
Patron - Kilgore

P HB2118

Blood alcohol tests in civil cases; admissibility of written reports or records. Makes the written reports or records of blood alcohol tests conducted upon persons receiving medical treatment in a hospital or emergency room admissible in evidence in any civil proceeding as a business records exception to the hearsay rule. The reports or records may be disclosed in accordance with federal regulations, without consent or authorization. The protections against civil liability for those taking blood and conducting tests now applicable in criminal proceedings are extended to civil proceedings. This bill incorporates HB 2319.
Patron - Ware, O.

P HB2301

Criminal history record information. Allows a person, who has applied to be a volunteer with the council of the Girl Scouts of the USA or the Boy Scouts of America serving troops in Virginia, to receive his own criminal history information at no charge. The bill will not become effective unless an appropriation of funds effectuating the purposes of the bill is included in the general appropriation act.
Patron - Fralin

P HB2305

Indigent Defense Commission; membership and dual office holding. Provides that if the chairman of the Virginia State Crime Commission is (i) 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 or (ii) 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.
Patron - McDougle

P HB2315

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.
Patron - Griffith

P HB2628

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.
Patron - Albo

P HB2632

Criminal procedure; 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. This bill is identical to SB 1164.
Patron - Moran

P HB2647

Availability of presentence report to defendant. Allows counsel for the accused to provide the accused with his presentence report. This bill is identical to SB 910.
Patron - Hurt

P HB2649

Virginia Criminal Sentencing Commission; membership. Requires that the current composition of the Commission include the chairmen of the Committees for Courts of Justice or their designees.
Patron - Hurt

P HB2663

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.
Patron - McDonnell

P HB2678

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.
Patron - Lingamfelter

P HB2808

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.
Patron - Scott, E.T.

P HB2869

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.
Patron - Weatherholtz

P HB2920

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.
Patron - Kilgore

P SB695

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. This bill is identical to HB 2006.
Patron - Reynolds

P SB895

Criminal procedure; national criminal background checks by businesses and organizations providing care to children, the elderly and disabled. Provides that only one set of fingerprints needs to be provided by the prospective employee of a business or organization providing care to children, the elderly or disabled as part of such entity's request for a national criminal background check on the prospective employee. Currently, two sets are required; however, electronic reproduction eliminates the need for two sets.
Patron - Ticer

P SB910

Availability of presentence report to defendant. Allows counsel for the accused to provide the accused with his presentence report. This bill is identical to HB 2647.
Patron - Norment

P SB1013

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.
Patron - Hanger

P SB1084

Criminal procedure; fee for fingerprints. Increases fingerprint fees for noncriminal prints from $5 per card to $10 for the first card and $5 for each successive card. This bill incorporates SB 1101.
Patron - Ticer

P SB1131

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.
Patron - Howell

P SB1164

Criminal procedure; 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. This bill is identical to HB 2632.
Patron - Stolle

P SB1165

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.
Patron - Stolle

P SB1168

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. This bill is identical to HB 2114.
Patron - Stolle

P SB1177

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.
Patron - Obenshain

Failed

F HB1511

Admission into evidence of affidavit of chain of custody. Provides that in any hearing or trial of any criminal offense or drug forfeiture proceeding, an affidavit of any law-enforcement officer attesting to chain of custody of any physical evidence taken into possession by him and delivered to the possession of another shall, without objection by counsel of record for the accused, be admissible in evidence as evidence of the facts therein stated.
Patron - Cosgrove

F HB1516

Criminal procedure; compensation for court-appointed counsel. Increases by approximately 20 percent the compensation allowed to court-appointed counsel (i) in district court and (ii) in circuit court for noncapital felonies. This bill has been incorporated into HB 1596.
Patron - Reese

F HB1584

Accused to pay no costs for certain expungements. Provides that the petitioner shall incur no costs when an expungement of an accused's criminal record is ordered pursuant to an acquittal or an absolute pardon for the commission of a crime for which the accused was unjustly convicted or when the charge is dismissed with prejudice or the Commonwealth takes a nolle prosequi.
Patron - Reese

F HB1596

Criminal procedure; compensation for court-appointed counsel. Increases by 50 percent the compensation allowed to court-appointed counsel in the district court and circuit court. The changes shall become effective only if sufficient funds are appropriated by the 2005 General Assembly. This bill incorporates HB 1516.
Patron - Black

F HB1619

Multijurisdiction grand jury may investigate robbery. Includes robbery within the ambit of the multijurisdiction grand jury's investigative functions.
Patron - Janis

F HB1639

DNA analysis after arrest for solicitation of prostitution. Requires that a person arrested for solicitation of prostitution or a drug offense have his DNA analyzed.
Patron - Miles

F HB1799

Dissemination of criminal history record information. Provides that a person may request a copy of his criminal history record information be sent to another, at the cost of the requester.
Patron - Albo

F HB1805

The Freedom Restoration Act; post-conviction relief. Amends provisions added to the Code during the 2004 General Assembly Session regarding writs of actual innocence based on non-biological evidence by removing the provision that the petitioner must have pled not guilty, the limit of one writ per conviction and the requirement that the evidence was previously unknown or unavailable to the petitioner or his trial attorney at the time the conviction became final. The bill allows the writ if the reason the evidence was not obtained was because of the failure of trial counsel to exercise due diligence, and changes the standard for issuance of the writ to substantial doubt about the petitioner's guilt. The circuit court may order an evidentiary hearing if necessary for the petitioner to develop additional facts.
Patron - Marshall, R.G.

F HB1837

Criminal procedure; authority of law-enforcement officers to arrest illegal aliens. Makes it easier for a law-enforcement officer to arrest an illegal alien by eliminating the requirement that the officer confirm, prior to such arrest, whether the alien has previously been deported or left the United States after the conviction of a felony.
Patron - Parrish

F HB1858

Speedy trial deadline extended. Provides that the time limitation for a speedy trial is tolled during the period when the accused is inextricably involved in a trial in another jurisdiction. This bill has been incorporated into HB 2663.
Patron - Shannon

F HB1869

Criminal procedure; fee for fingerprints. Increases fingerprint fees for noncriminal prints from $5 per card to $10 for the first card and $5 for each successive card.
Patron - Brink

F HB1873

Graffiti; multijurisdiction grand jury. Allows for the use of multijurisdiction grand jury to investigate graffiti violations.
Patron - McDougle

F HB1976

What constitutes arrest for purposes of compliance with speedy trial act. For the purposes of speedy trial determination, an arrest of the accused to be tried on an indictment, warrant, information or presentment is deemed to have occurred only when the summons or capias to answer such process is actually served and executed upon the accused, and the lodging of a detainer or its equivalent shall not constitute an arrest. This bill has been incorporated into HB 2663.
Patron - Janis

F HB1986

Who may conduct mental evaluation of a person convicted of a sexually abnormal offense. Provides that a judge may order a defendant who is charged with a sexually abnormal offense to be examined by at least one psychiatrist or clinical psychologist or other duly licensed mental health professional who is qualified by specialized training and experience to perform such evaluations. Currently, the evaluation would have to be performed by a psychiatrist or psychologist only.
Patron - Griffith

F HB1987

Presentence interviews by probation officers. Provides that if, during the course of and as a part of a presentence investigation of a convicted defendant, the probation officer or his agent conducts an interview of the defendant, the defendant shall have the right to have his attorney present.
Patron - Griffith

F HB2046

Criminal history record information for employment in proximity to minors; penalty. Disqualifies from employment in proximity to minors any person who has a criminal history relating to crimes against minors or crimes that could endanger minors.
Patron - Hamilton

F HB2089

Procedures upon a sex offender's failure to register or reregister. Provides that the State Police and any local law-enforcement agency may enter into a cooperative agreement whereby the agencies may together conduct investigations of violations of a sex offender's duty to register. The State Police and the local law-enforcement agency may, as a part of this agreement, provide that the local agency may seek an arrest warrant for an individual believed to be in violation of this section.
Patron - Shannon

F HB2117

Bail bondsmen; equity ratio of property and outstanding bonds; time within which to produce defendant. Allows a bail bondsman to write bonds up to four times the value of his financial holdings (current law requires a 1:1 ratio), and provides that no single bond shall represent more than 25 percent of his collateral. This bill incorporates HB 2314.
Patron - Ware, O.

F HB2126

High-speed pursuit policy. Provides that on and after January 1, 2006, every law-enforcement agency in the Commonwealth that is or may be engaged in emergency response and vehicle pursuits shall adopt a written policy that sets forth the manner in which such operations shall be conducted. Establishes as required components that (i) there exists a clear and present danger to the public, law-enforcement, and public safety officials; (ii) the fugitive must be suspected of having committed a violent felony, or having used a firearm in the commission of a crime; (iii) the pursuing law-enforcement officers shall have received training in high-speed pursuits; and (iv) the pursuing law-enforcement officers shall maintain constant contact with the radio dispatcher.
Patron - Eisenberg

F HB2201

Expungement following a deferred disposition. Specifically allows for expungement of a criminal record when a court defers disposition of a case upon a plea of not guilty and then dismisses the charges upon completion of terms and conditions imposed.
Patron - Marrs

F HB2258

Process for issuance of search and arrest warrants. Provides that a person who seeks an arrest or a search warrant may confer with the issuing officer by telephone or radio prior to appearing before the issuing officer for a preliminary determination from the officer as to the sufficiency of probable cause for the warrant.
Patron - Bell

F HB2264

Alternative means of introducing defendant's criminal history. Provides that the Commonwealth shall provide to the defendant 14 days prior to trial notice of its intention to introduce evidence of the defendant's prior criminal convictions and may, if the defendant does not object seven or more days prior to trial, present such notice at the trial as evidence of the defendant's prior convictions in lieu of certified, attested or exemplified copies of the record of convictions. Currently only the attested or exemplified copies of the record of convictions are admissible at the sentencing proceeding.
Patron - Bell

F HB2306

Speedy trial deadline extended. Provides that the time limitation for a speedy trial is tolled (i) during the period of a natural disaster, civil disorder, strike, or act of God requiring that the courthouse be closed or (ii) for good cause shown why trial should not go forward as scheduled. This bill has been incorporated into HB 2663.
Patron - McDougle

F HB2313

Release on bond while already on bond. Provides that any person arrested for a felony who is presently on secured bond for an unrelated arrest may be released only upon a secure bond in an amount equal to or greater than the existing bond. The bill also provides that this subsequent bond requirement may be waived with the approval of the judicial officer and with the concurrence of the attorney for the Commonwealth or the attorney for the county, city or town if, prior to the waiver, the judicial officer or his designee gives the bail bondsman, or other person who served as surety on any secure bond existing at the time of the felony arrest, actual notice of the waiver and an opportunity to arrest the person and revoke the original bond. Currently, because there is no requirement that the second bond be as much as the first or that the judicial officer give notice of waiver, the original bondsman may be at risk for the original secured bond when the arrestee faces his second charge and the judicial officer waives a secured bond.
Patron - Griffith

F HB2314

Maximum allowable bonds by property bail bondsman. Allows a property bail bondsman to issue bonds in an amount not to exceed four times his collateral in real estate. This bill has been incorporated into HB 2117.
Patron - Griffith

F HB2319

Admissibility of written results of blood alcohol tests in civil cases. Provides that the written results of blood alcohol tests conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence under the business records exception to the hearsay rule in any civil proceeding. This bill has been incorporated into HB 2118.
Patron - Griffith

F HB2328

Criminal procedure; reports by Chief Medical Examiner received as evidence. Allows certified reports and records of the Chief Medical Examiner to be received in preliminary hearings in criminal cases as evidence of the facts therein stated. This eliminates the need of a doctor from the Medical Examiner's office to attend the hearing and testify to what is included within the reports and records. This bill is intended to vitiate the ruling in Ward v. Commonwealth, 216 Va. 177 (1975), but only as it relates to preliminary hearings.
Patron - Athey

F HB2353

Facial recognition technology; court order. Prohibits a locality or law-enforcement agency from utilizing facial recognition technology absent a court order authorizing use of such technology. The bill sets forth the procedures for applying for an order, and the information that such an order must contain.
Patron - Griffith

F HB2528

Regional appellate public defender office. Includes a pilot regional appellate office within the Chesapeake Public Defender's Office.
Patron - Melvin

F HB2643

Bail; admission. Includes within the list of crimes for which there is a rebuttable presumption against bail, aggravated sexual battery and taking indecent liberties with a child. The bill also enumerates within the same provision certain sections that currently are included by reference.
Patron - Hurt

F HB2773

Capital murder cases; sentencing, motions and appeals. Removes the "default" life sentence in the event a jury cannot agree on the sentence in a capital case and provides for the empanelment of a different jury for ascertaining punishment, or for sentencing by the judge upon agreement of all parties. The bill also requires defense objections on speedy trial or double jeopardy grounds be filed in writing at least seven days before trial and that all parties, not just the accused as under current law, must agree in order to waive the provision that a hearing on defense objections be held at least three days before trial. The bill provides that the Commonwealth may appeal on speedy trial or double jeopardy grounds. Currently, such appeal must be on the ground that a statute upon which the dismissal was based is unconstitutional.
Patron - Bell

F HB2778

Appeal by the Commonwealth. The bill provides that the Commonwealth may appeal on speedy trial grounds. Currently, such appeal must be on the ground that a statute upon which the dismissal was based is unconstitutional. This bill has been incorporated into HB 1977.
Patron - Moran

F HB2813

Speedy trial and double jeopardy; motions and appeals. Requires defense pretrial suppression motions and objections on speedy trial or double jeopardy grounds to be filed in writing at least seven days before trial. The bill also provides that the Commonwealth may file a pre-trial appeal on a dismissal of a criminal case on speedy trial or double jeopardy grounds. Currently such appeal must be on the ground that a statute upon which the dismissal was based is unconstitutional. This bill has been incorporated into HB 1977.
Patron - McDonnell

F HB2814

Compensation of court-appointed counsel. Provides that a court, for good cause shown, may increase the compensation of court-appointed counsel defending (i) a juvenile charged with an offense that if committed by an adult would carry a punishment of more than 20 years, or (ii) a person charged with a felony that carries a punishment of more than 20 years.
Patron - McDonnell

F SB714

Mentally ill defendants; technical changes. Provides that a defendant in a criminal matter may be hospitalized if so seriously mentally ill as to be unable to care for himself. Under current law the standard is "imminently dangerous to himself or others."
Patron - Edwards

F SB808

Human biological evidence. Requires the Division of Forensic Science to store, preserve, and retain all biological evidence that is in its possession on July 1, 2005, and to develop an inventory of the evidence.
Patron - Marsh

F SB834

Appointment of magistrates. Provides that a retired magistrate is eligible to serve as a substitute magistrate.
Patron - Mims

F SB863

Forfeiture of property. Allows alternative property to be seized in cases where a defendant's property is to be seized because of terrorism, money laundering or drug trafficking and the property originally designated for seizure is no longer available because of certain acts or omissions of the defendant.
Patron - Howell

F SB908

Chain of custody form. Provides that a chain of custody form attested to by the employee of a law-enforcement agency responsible for the custody of physical evidence is prima facie evidence of the chain of custody.
Patron - Norment

F SB914

Post-conviction relief. Amends provisions added to the Code during the 2004 General Assembly Session regarding writs of actual innocence based on non-biological evidence by removing the limit of one writ per conviction.
Patron - Marsh

F SB915

Death penalty; moratorium on executions. Provides that the Commonwealth shall not conduct executions of prisoners sentenced to death. All other matters of law relating to the death penalty, such as bringing and trying capital charges, sentencing proceedings, appeals and habeas review are not affected by the bill.
Patron - Marsh

F SB986

Sentencing guideline point enhancements for certain firearm crimes in certain localities. Provides that when the discretionary guidelines worksheets are prepared for cases in which the primary offense is murder, robbery, or assault and any such offense is committed with or attempted with a firearm, the guidelines worksheets shall be amended to allow for additional punishment for any locality in which certain criteria are met.
Patron - Watkins

F SB1020

Arrest on summons. Expands circumstances under which a law-enforcement officer may transform an arrest on a summons to a full custodial arrest (including a search) to include a reasonable belief that the person will flee or attempt to flee, illegally possesses a firearm, or is illegally concealing a weapon.
Patron - Mims

F SB1021

Foreign orders; records from electronic communication service providers. Requires providers of electronic communication services or remote computing services in the Commonwealth to comply with search warrants issued in other states as if they were issued in Virginia.
Patron - Mims

F SB1022

Witnesses in criminal trial. Allows the attorney for the Commonwealth to designate, in felony cases, one investigative law-enforcement official who may remain in the courtroom, unless the court determines that his presence would impair the conduct of a fair trial.
Patron - Mims

F SB1101

F SB1155

Sentencing guidelines for revocation of suspension of sentence or probation in felony cases. Directs the use of sentencing guidelines in revocation hearings for revocation of sentence suspension or revocation of probation where the initial sentencing was for a felony violation.
Patron - Stolle

F SB1207

Suspected criminal behavior; penalty. Sets out circumstances under which a law-enforcement officer may detain a person suspected of criminal activity.
Patron - Mims

F SB1280

Child sex abuse crimes. Allows evidence of the defendant's prior conviction of child sexual abuse crimes in a case where he is accused of child sexual abuse.
Patron - Edwards

F SB1302

Expungement of police and court records. Provides that a convicted person who has had his civil rights restored, including his right to vote, has maintained exemplary citizenship for at least 15 years, has satisfied any and all terms and conditions of probation and parole, and has no other criminal conviction in any jurisdiction may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge.
Patron - Watkins

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General Assembly>Division of Legislative Services>Publications>Session Summaries>2005>Criminal Procedure

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