By Zachary Deubler
In Virginia, the 2020 legislative session brought about some of the largest criminal justice reform measures we have seen passed into law in the Commonwealth for decades. Indeed, these reforms were largely spurred on by criminal justice advocates who took issue with Virginia’s trial-by-ambush approach and the perceived over-criminalization of certain types of behaviors.
The Criminal Practice Group at DiMuroGinsberg has compiled a noncomprehensive list of some of the major legislative changes that may have the biggest impact on both Criminal Defendants and Criminal Practitioners throughout Virginia.
One of the most anticipated changes can be found in the reform of the criminal discovery process. Changes in Rules 3A:11 and 3A:12 were approved by the Supreme Court of Virginia in September 2018 with a 2019 effective date, but implementation was delayed for a year to allow for assessment of the impact of police body camera evidence.
Under the recent rule changes, defense attorneys are given access to witness statements and police reports; before the rule change, the procedure to obtain a copy—if one was given at all—varied by jurisdiction. The amendments also provide for reciprocal exchange of witness lists and include a recommendation that defense lawyers provide expert witness information, now required only of prosecutors.
Moreover, H.B. 813 further indicates that discovery shall be provided within a reasonable amount of time before trial, but that in no case shall it be provided later than (i) 14 days before trial for a misdemeanor in circuit court, (ii) 30 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of 30 years or less, or (iii) 90 days before trial for a felony or multiple felony counts punishable by confinement in a state correctional facility for an aggregate of more than 30 years. The bill also provides a mechanism for redaction of certain personal identifying information and creates a procedure for either party to move the court to enter a protection order with regard to discovery. Finally, the bill grants the court the ability to impose various remedies it deems just if a party fails to comply with any of the requirements.
In addition to changing discovery disclosure procedures, the Virginia legislature also took substantial steps in changing/modifying substantive criminal offenses—including changes in the direct and collateral consequences of some crimes. These changes range from the relatively small increase in the Reckless Driving speed limit, to the larger decriminalization of simple possession of marijuana. Of particular importance and a potential game changer, is the ability of defense counsel to inform prospective jurors, during the voir dire, of the range of punishment for a given offense if they should return a guilty verdict. This change in the law is an important first step towards eliminating the “trial penalty” in criminal cases within Virginia.1
- H.B. 618\ S.B. 179—Hate crimes; gender, disability, gender identity, or sexual orientation; penalty.
- Adds gender, disability, gender identity and sexual orientation to the categories of victims whose intentional selection for a hate crime involving assault, assault and battery, or trespass for the purpose of damaging another’s property results in a higher criminal penalty for the offense. The bill also eliminates the mandatory minimum terms of confinement for such hate crimes.
- H.B. 660\ S.B. 286—Deferred dispositions; property crimes; larceny and receiving stolen goods.
- Provides that a court upon such plea, if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him/her on probation subject to terms and conditions for a first offense misdemeanor larceny, provided such person has not previously been convicted of any felony or had a prior deferred disposition for the same offense.
- H.B. 885—Reckless driving; exceeding speed limit.
- Raises the threshold for per se reckless driving for speeding from driving in excess of 80 miles per hour to driving in excess of 85 miles per hour. The threshold for per se reckless driving for speeding for driving at or more than 20 miles per hour in excess of the speed limit remains unchanged.
- H.B. 972\ S.B.2—Possession and consumption of marijuana; penalty.
- Decriminalizes simple marijuana possession and provides a civil penalty of no more than $25. The bill provides that any violation of simple possession of marijuana shall be charged by a summons in form the same as the uniform summons for motor vehicle law violations and that no court costs shall be assessed for such violations. The bill also provides that a person’s criminal history record information shall not include records of any charges or judgments for such violations and records of such charges or judgements shall not be reported to the Central Criminal Records Exchange. The bill defines “marijuana” to include hashish oil and creates a rebuttable presumption that a person who possesses no more than one ounce of marijuana possesses it for personal use. The bill also (i) makes records relating to the arrest, criminal charge or conviction of possession of marijuana not open to public inspection and disclosure, except in certain circumstances; (ii) prohibits employers and educational institutions from requiring an applicant for employment or admission to disclose information related to such arrest, criminal charge, or conviction; and (iii) prohibits agencies, officials, and employees of the state and local governments from requiring an applicant for a license, permit, registration, or governmental service to disclose information concerning such arrest, criminal charge, or conviction. When there is an acquittal, a nolle prosequi is taken, or the charge is otherwise dismissed, the bill allows the person charged with the civil offense to file a petition requesting expungement of the police records and court records related to the charge.
- H.B. 995\ S.B. 788—Grand larceny; threshold.
- Increases from $500 to $1,000 the threshold amount of money or value of goods or chattel taken at which the crime rises from petit larceny to grand larceny. The bill increases the threshold by the same amount for the classification of certain property crimes.
- S.B. 64—Paramilitary activities; penalty.
- Provides that a person is guilty of unlawful paramilitary activity if such person brandishes a firearm or any air or gas operated weapon or any object similar in appearance while assembled with one or more persons for the purpose of and with the intent to intimidate any person or group of persons. Such unlawful paramilitary activity is punishable as a Class 5 felony.
- S.B. 144—Protective orders; issuance upon convictions for certain felonies; penalty.
- Authorizes a court to issue a protective order upon convicting a defendant for an act of violence and upon the request of the victim or the attorney for the Commonwealth on behalf of the victim. The bill provides that the duration of such protective order can be for any reasonable period of time, including up to the lifetime of the defendant, that the court deems necessary to protect the health and safety of the victim. The bill provides that a violation of a protective order issued upon a conviction for an act of violence is punishable as a Class 1 misdemeanor.
- H.B. 34—Refusal of tests; restricted license.
- Allows a person convicted of a first offense of unreasonable refusal to have samples of his breath or blood taken for chemical tests to determine the alcohol content of his blood to petition the court 30 days after conviction for a restricted driver’s license.
- H.B. 100\ S.B. 325—Voir dire examination of persons called as jurors; criminal case.
- Allows the court and counsel for either party in a criminal case to (i) ask potential jurors any relevant questions to ascertain whether the juror can sit impartially in either the guilt or sentencing phase of the case and (ii) inform any potential juror as to the potential range of punishments to ascertain if the person or juror can sit impartially in the sentencing phase of the case.
- H.B. 909\ S.B.513—Driver’s license suspensions for certain non-driving related offenses.
- Removes the existing provisions that allow a person’s driver’s license to be suspended (i) when he is convicted of or placed on deferred disposition for a drug offense, (ii) for non-payment of certain fees owed to a local correctional facility or regional jail, and (iii) for shoplifting motor fuel.
- H.B. 1196\ S.B. 1—Suspension of driver’s license for nonpayment of fines or costs.
- Removes the requirement that a court suspend the driver’s license of a person convicted of any violation of the law who fails or refuses to provide for immediate payment of fines or costs.
- H.B. 1462—Admission to bail; rebuttable presumptions against bail.
- Eliminates the provision prohibiting a judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court from admitting to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail without the concurrence of an attorney for the Commonwealth.
- H.B. 1522—Forfeiture of property used in connection with the commission of crimes; finding of guilt required.
- Requires that any action for the forfeiture of property used in connection with the commission of a crime be stayed until the person whose property is the subject of the forfeiture action has been found guilty of the crime authorizing the forfeiture, regardless of whether he has been sentenced.
- S.B. 439—Driving under the influence; remote alcohol monitoring; penalty.
- Provides that in the case of an adult offender’s first conviction of driving under the influence when the offender’s blood alcohol content was less than 0.15, upon motion of the offender, the sole restriction of the offender’s restricted driver’s license shall be the prohibition of the offender from operating any motor vehicle not equipped with a functioning, certified ignition interlock system for one year without any violation of the ignition interlock system requirements.
- S.B. 667—Arrest and prosecution when experiencing or reporting overdoses.
- Provides that no individual shall be subject to arrest or prosecution for the unlawful purchase, possession, or consumption of alcohol; possession of a controlled substance; possession of marijuana; intoxication in public; or possession of controlled paraphernalia if (i) such individual (a) seeks or obtains emergency medical attention for himself, if he is experiencing an overdose, or for another individual, if such other individual is experiencing an overdose, or (b) is experiencing an overdose and another individual seeks or obtains emergency medical attention for him; (ii) such individual remains at the scene of the overdose or at any location to which he or the individual requiring emergency medical attention has been transported; (iii) such individual identifies himself to the law-enforcement officer who responds; and (iv) the evidence for a prosecution of one of the enumerated offenses would have been obtained only as a result of an individual seeking or obtaining emergency medical attention.
- H.B. 744— Sentencing of juvenile tried as adult.
- Provides that a court, in the case of a juvenile tried as an adult and convicted of a felony, may depart from any mandatory minimum sentence required by law and suspend any portion of an otherwise applicable sentence.
- H.B. 2\ S.B. 70—Firearm sales; criminal history record information checks; penalty.
- Requires a background check for any firearm sale. A person who sells a firearm to another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill also provides that a purchaser who receives a firearm from another person without obtaining the required background check is guilty of a Class 1 misdemeanor. The bill removes the provision that makes background checks of prospective purchasers or transferees at firearms shows voluntary.
- H.B. 9—Reporting lost or stolen firearms; civil penalty.
- Requires that, if a firearm is lost or stolen from a person who lawfully possessed it, such person shall report the loss or theft of the firearm to any local law-enforcement agency or the Department of State Police within 48 hours after such person discovers the loss or theft or is informed by a person with personal knowledge of the loss or theft.
- H.B. 674\ S.B. 240—Firearms; removal from persons posing substantial risk; penalties.
- Creates a procedure by which any attorney for the Commonwealth or law-enforcement officer may apply to a general district court, circuit court, or juvenile and domestic relations district court judge or magistrate for an emergency substantial risk order to prohibit a person who poses a substantial risk of injury to himself or others from purchasing, possessing, or transporting a firearm.
- H.B. 812\ S.B. 69—Purchase of handguns; limitation on handgun purchases; penalty.
- Prohibits any person who is not a licensed firearms dealer from purchasing more than one handgun in a 30-day period and establishes such an offense as a Class 1 misdemeanor.
1 See Generally The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, National Association of Criminal Defense Lawyers (July 10, 2018) available at: https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearExtinct