TITLE 19.2. CRIMINAL PROCEDURE.

§ 19.2-10.1. See § 18.2-511; HB 1123/SB 320.

§ 19.2-12 amended.
Criminal procedure; conservators of the peace. Adds special agents of the Department of Homeland Security to the list of those who are conservators of the peace. SB 298; CH. 1009 (effective 4/21/04).

§ 19.2-13 amended.
Conservators of the peace. Provides that all conservator of the peace appointments are void on September 15, 2004, unless the conservator has obtained a valid registration issued by the Department of Criminal Justice Services. In addition, each conservator must provide a temporary registration letter issued by the Department of Criminal Justice Services prior to seeking appointment by the circuit court. A circuit court appointment letter must be filed with the Department of Criminal Justice Services in order to receive a special conservator of the peace photo registration card. SB 390; CH. 401.

§§ 16.1-69.9, 16.1-69.9:1, 16.1-69.9:4, 17.1-303, 17.1-400, 17.1-501, 17.1-509, 17.1-512, and 19.2-35 amended.
Criminal history records search; justices; judges and substitute judges; magistrates. Requires criminal history records checks of all persons elected by the General Assembly as justices of the Supreme Court, judges of the Court of Appeals, and judges of the circuit and district courts, and of all persons appointed by the circuit courts as magistrates or substitute judges. The bill also prohibits the appointment of substitute judges and magistrates with certain criminal backgrounds in the same manner as the prohibitions for appointment of special conservators of the peace. HB 916; CH. 452.

§§ 19.2-35, 19.2-36, and 19.2-38 amended.
Appointment of magistrates. Provides that the authority of the chief circuit court judge to appoint magistrates and chief magistrates is to be exercised in consultation with the chief general district and juvenile court judges and that all appointments of magistrates are for four-year terms even if the appointment is to fill a vacancy. HB 1139; CH. 370.

§ 19.2-37 amended.
Criminal procedure; magistrates. Eliminates the prohibition of appointing a person as a magistrate if such person's spouse is a law-enforcement officer or an employee of the clerk of a district court. SB 669; CH. 830.

§ 19.2-42 repealed.
Duties of the attorney for the Commonwealth; magistrates. Repeals the provision requiring attorneys for the Commonwealth to provide legal advice and training to magistrates due to the potential conflict raised by the prosecutor advising a judicial officer. Magistrates receive training from the Supreme Court's Executive Secretary's Office, as provided by law. SB 162; CH. 327.

§ 19.2-62 amended.
Crimes; wiretaps. Corrects an oversight in the wording of the current provision making it a crime to intentionally use, or endeavor to use, the contents of any electronic communication, knowing or having reason to know that the information was obtained through the interception of an electronic communication. HB 650; CH. 149.

§ 19.2-66 amended.
Attorney General; wiretap orders. Expands the list of crimes for which the Attorney General may seek a wiretap order to include crimes by mobs and crimes by gangs. Criminal sexual assault is included only for felony offenses that are not Class 6. HB 118; CH. 122.

§ 19.2-81 amended.
Arrest for drunk driving. 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 664; CH. 949.

§§ 9.1-102, 19.2-81.3, and 19.2-81.4 amended.
Family abuse. Changes the term primary physical aggressor to predominant physical aggressor in section 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 primary (now 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. SB 550; CH. 1016.

§ 19.2-81.4. See § 16.1-253.2; HB 1233/SB 236.

§§ 19.2-82 and 19.2-120 amended; § 19.2-81.6 added.
Arrest and detention; illegal aliens. Provides that all law-enforcement officers have the authority to enforce immigration laws and that a law-enforcement officer may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement that the individual is an illegal alien, and has previously been convicted of a felony in the United States and deported or left the United States after such conviction. A magistrate may issue a warrant and the person may be detained for not more than 72 hours or until taken into federal custody, whichever occurs first. The bill creates a presumption that an individual shall not be admitted to bail if he is detained pursuant to this provision. HB 570; CH. 360/SB 493; CH. 412.

§§ 16.1-260, 19.2-83.1, and 22.1-279.3:1 amended.
Report of arrest of adult school students to school superintendent for certain offenses. Requires that a public school student who is 18 or over and arrested for certain offenses be reported to the division superintendent. The offenses are the same as those for which a juvenile student would be reported (e.g., firearms; homicide, felonious assault, sexual assault; drug offenses; arson; burglary; robbery). The bill extends this list to include criminal street gang related activity. SB 633; CH. 517.

§ 19.2-120 amended.
Presumption against bail; repeat DUI offenders. Provides a rebuttable presumption against bail for a person charged with a DUI-related offense if the person has been convicted of three such offenses within the past five years on different dates and has been at liberty between each conviction. HB 889; CH. 954/HB 1132; CH. 959.

§ 19.2-120. See § 18.2-36.1; HB 1059.

§§ 19.2-120 and 19.2-299 amended.
Criminal procedure; admission to bail. Creates a rebuttable presumption against bail for any person who is held in custody when such person is charged with participating in a criminal street gang or the soliciting of a juvenile to participate in a criminal street gang. The bill adds the participation in and the recruitment for a criminal street gang to the list of felonies for which there must be a presentence report unless waived by the court and the defendant and the attorney for the Commonwealth. The bill specifies information regarding gang membership that may be included in the presentence report. HB 1012; CH. 308/SB 492; CH. 819.

§§ 19.2-120 and 19.2-390 amended.
Admission to bail: DUI. Creates a rebuttable presumption that bail shall be denied to a person arrested for DUI if he has three previous convictions within the past five years for any combination of the following: DUI, DUI manslaughter or DUI maiming. The bill also includes DUI as a reportable offense to the Central Criminal Records Exchange (CCRE) by law-enforcement officers upon arrest. Currently, it is specifically excluded. SB 442; CH. 406.
§§ 19.2-149 and 19.2-152.1 through 19.2-152.1:7. See § 9.1-102; HB 1057.

§ 19.2-152.1 amended.
Property bail bondsmen. Provides that a property bail bondsman needs to obtain a certificate from only one circuit court judge in order to operate statewide, rather than from a circuit court judge in each jurisdiction in which he intends to write bonds. This bill is a recommendation of the Judicial Council. HB 71; CH. 264.

§§ 19.2-152.2, 53.1-95.8, and 53.1-109 amended.
Pretrial programs. Clarifies that pretrial service programs are for adults and juveniles transferred for trial as adults. The bill also repeals cross-references that are no longer necessary. HB 1308; CH. 378.

§§ 16.1-266, 19.2-159, 19.2-163.7, 19.2-163.8 and 53.1-124 amended; §§ 19.2-163.01 through 19.2-163.04, and 19.2-163.4:1 added; §§ 19.2-163.1, 19.2-163.2, and 19.2-163.6 repealed.
Indigent Defense Commission. Establishes the Indigent Defense Commission, which will establish criteria for court-appointed lawyers as well as assume the duties of the existing Public Defender Commission, which is abolished by this bill. All of the existing public defender offices are retained and no new ones are added. HB 1056; CH. 921 (effective 7/1/05)/ SB 330; CH. 884 (effective 7/1/05).
§ 19.2-163.2. See Budget Bill; HB 5001.

§ 19.2-163.7 amended.
Appointed counsel in capital cases. Provides that at least two attorneys shall be appointed in a capital case (2002 legislation requires that as of July 1, 2004, an attorney from a capital defense unit of the Public Defender Commission be appointed). The bill allows the capital defense unit attorney to make a motion to the circuit court to withdraw as counsel if prior to the indictment the Commonwealth declares in writing that it will not seek the death penalty. The court is to allow the capital attorney to withdraw and to appoint a regular court-appointed attorney. SB 177; CH. 329.

§ 19.2-194 amended.
Summoning of grand jurors. Allows the judge or judges of the circuit court who sit in a county or city to prepare the list of grand jurors. Current law seems to require that all the judges of a circuit participate in the selection and the signing of the court orders, etc. HB 942; CH. 306.

§ 19.2-215.1. See § 18.2-46.1; HB 569/ SB 321.

§ 19.2-264.5 amended.
Capital murder sentencing order. Provides that when a court sets aside a sentence of death and imposes a sentence of imprisonment for life, it shall include in the sentencing order an explanation for the reduction in sentence. HB 755; CH. 298.

§ 19.2-265.1 amended.
Exclusion of witnesses in criminal trials. Provides that any victim who is to be called as a witness in a criminal trial shall be exempt from the rule authorizing the exclusion of all witnesses unless, in accordance with the provisions of § 19.2-265.01 (presence of victim would cause impairment of conduct of a fair trial), his exclusion is specifically required. HB 1095; CH. 311.

§ 19.2-265.4 amended.
Discovery in misdemeanor cases in circuit court. Provides that in any criminal prosecution for a misdemeanor by trial de novo in circuit court, the attorney for the Commonwealth shall have a duty to adequately and fully provide discovery as provided under Rule 7C:5 (district court criminal discovery rule) of the Rules of the Supreme Court. Currently, by law or rule, no discovery is available on appeal of misdemeanor convictions to circuit court. HB 120; CH. 348.

§§ 18.2-270, 19.2-294.1, 46.2-391, and 46.2-391.2 amended.
Enhanced punishment for third DUI, etc. Increases the mandatory minimum sentence for a second DUI within five years from five to 20 days, establishes a mandatory minimum for a second within 10 years to 10 days, a third within 10 years from 60 to 90 days and a third within five years from 30 to 180 days. The blood alcohol level required for additional mandatory minimum penalties is lowered by .05 percent. The bill also extends the seven-day administrative operator's license suspension for a DUI arrest to 60 days for a second alleged offense, and until trial for a third alleged offense. In addition, the sentence of a person convicted of DUI while driving on a revoked license who has previously been convicted of DUI is to run concurrently with any other sentence. SB 384; CH. 937.

§ 19.2-295.3 amended.
Admission of victim impact testimony. Clarifies that victim impact testimony is to be heard by the trier of fact whether the defendant is found guilty after trial or upon a guilty plea. HB 1083; CH. 310.

§ 19.2-299. See § 18.2-124; HB 1055.

§ 19.2-310.2:1 amended.
Attempted violent felonies. Provides that persons arrested for attempted violent felonies and burglary must have a DNA sample taken. Currently, attempts are not included. HB 776; CH. 445.

§ 19.2-310.3. See § 18.2-268.5; HB 654.

§§ 19.2-327.10 through 19.2-327.14 added.
Issuance of writ of actual innocence for nonbiological evidence. Establishes a one-opportunity procedure for a convicted felon to petition the Court of Appeals for a writ of actual innocence based on nonbiological previously unknown or unavailable evidence. The Court of Appeals may summarily dismiss the petition but if it determines that a resolution of the case requires further development of the facts, it may order the circuit court to conduct a hearing to certify findings of fact on certain issues. After considering the petition and the Commonwealth's response, the previous records of the case and the record of any hearing, the Court may dismiss the case or grant relief. A petitioner whose writ is not summarily dismissed by the Court of Appeals is entitled to court-appointed counsel in the same manner as an indigent defendant in a criminal case. The bill establishes a process similar to the one that already exists in the Code for previously unknown or untested biological evidence. SB 333; CH. 1024.

§§ 18.2-246.13, 18.2-246.14, 18.2-283.1, 18.2-287.4, 18.2-308, 18.2-308.1:2, 18.2-308.1:3, 18.2-308.1:4, 18.2-308.2, 18.2-308.2:01, 18.2-308.2:1, 18.2-308.4, 18.2-308.5, 18.2-308.7, 18.2-374.1:1, 19.2-386.1 through 19.2-386.5, and 59.1-148.4 amended; §§ 19.2-386.15 through 19.2-386.31 added; §§ 18.2-46.9, 18.2-110, 18.2-152.16, 18.2-190.7, 18.2-246.4, 18.2-249, 18.2-253, 18.2-253.1, 18.2-253.2, 18.2-265.4, 18.2-310, 18.2-336, and 18.2-374.2 repealed.
Transfer of forfeiture statutes to the criminal procedure code. Moves forfeiture provisions from Title 18.2 (criminal law) to Title 19.2 (criminal procedure) without substantive change. HB 1058; CH. 995.

§ 19.2-390 amended.
Reports to be made by local law-enforcement officers to the Central Criminal Records Exchange (CCRE). Includes DUI as a reportable offense to CCRE by law-enforcement officers upon arrest. Currently, DUI is specifically excluded. HB 594; CH. 284.