Criminal

2019 Virginia Law Changes

The following laws took effect in Virginia on July 1, 2019:

Deferral of jury service for persons who have legal custody of and are responsible for the care of a child

Va. Code Ann. § 8.01-341.2 (2019): A court may defer or limit jury service of persons who have legal custody of and are responsible for a child or children 16 years of age or younger requiring continuous care by such person during normal court hours to the term of court next after such period of responsibility ends. Under current law, persons with such responsibility are exempt upon request, but no provision is given for the court to defer such person's jury service until after such period of responsibility ends.

Prostitution and sex trafficking

Va. Code Ann. §§ 18.2-347 through 18.2-350 (2019): Any adult who commits an act of aiding prostitution or illicit sexual intercourse or using a vehicle to promote prostitution or unlawful sexual intercourse, when such act involves a minor, is now guilty of a Class 6 felony.

Minimum age for purchase, possession, and sale of tobacco products, nicotine vapor products, and alternative nicotine products

Va. Code Ann. §§ 18.2-246.8, 18.2-246.10, and 18.2-371.2 (2019): Increases the minimum age for persons prohibited from purchasing or possessing tobacco products, nicotine vapor products, and alternative nicotine products, and the minimum age for persons such products can be sold to, from 18 years of age to 21 years of age with an exception for active duty military personnel. Tobacco products, nicotine vapor products, and alternative nicotine products may be sold from a vending machine if there is posted notice of the minimum age requirements and the machine is located in a place that is not open to the general public and not generally accessible to persons under 21 years of age.

Safe reporting of overdoses

Va. Code Ann. § 18.2-251.03 (2019): You are no longer required to substantially cooperate with law enforcement in any investigation of any criminal offense reasonably related to an overdose in order to qualify for an affirmative defense from 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.

Child abuse and neglect; mandatory reporters

Va. Code Ann. § 63.2-1509 (2019): Ministers, priests, rabbis, imams, and duly accredited practitioners of any religious organization or denomination usually referred to as a church are now required to report suspected child abuse or neglect. Clergy members are exempted from the mandatory reporting requirement when the information supporting the suspicion of child abuse or neglect (i) is required by the doctrine of the religious organization or denomination to be kept confidential or (ii) would be subject to the exemptions set forth in § 8.01-400 or 19.2-271.3 if offered as evidence in court.

Custody and visitation orders; exchange of child

Va. Code § 20-124.3 (2019): Provides that in custody and visitation cases, at the request of either party, the court may order that the exchange of a child take place at an appropriate meeting place.

Move over law

Va. Code Ann. § 46.2-861.1 (2019): Defines as reckless driving the failure to yield the right-of-way or reduce speed when approaching emergency vehicles or public utility vehicles on a highway with flashing, blinking or alternating blue, red or amber lights reckless driving. This offense is punishable as a Class 1 misdemeanor or, if the person’s license had been suspended or revoked due to a moving violation and the reckless driving was the sole and proximate cause of death of another, a Class 6 felony. The punishment for anyone convicted of reckless driving who, when he committed the offense, was texting while driving must include a mandatory minimum fine of $250.

2018 Virginia Law Changes

The following laws took effect in Virginia on July 1, 2018:

18.2-95/18.2-96 - Larceny:  the threshold dollar amount used to determine whether a larceny offense like shoplifting is a misdemeanor/petty offense or a serious felony, is now $500 instead of $200. 

8.01-341.2 - Juries:  a full-time student at an accredited public or private institution of higher education may be allowed to defer their jury service to another term, if attending classes at such institution when called for service.  

22.1-277.05 - Long-Term Suspension:  students may not be suspended from school for longer than 45 days unless (i) the offense [involves a weapon, drugs or serious bodily injury] or (ii) the school board or division superintendent or his designee finds that aggravating circumstances exist.  A student's disciplinary history shall be taken into consideration.  If subsections (i) or (ii) apply, a student's suspension may not be extended longer than 364 days.

Fairfax County Public School Board Reforms Disciplinary Procedures

On July 26, 2018, the Fairfax County School Board voted to adopt a new memorandum of understanding, ("MOU"), between Fairfax County Public Schools Superintendent Dr. Scott Brabrand and Fairfax County Police Chief Edwin Roessler Jr.   The new MOU requires school resource officers to (1) contact a student’s parents or guardian before questioning about any possible criminal activity and (2) inform both the student and their guardian of their Miranda rights prior to the interview.  In addition, the MOU limits interventions by school resources officers to incidents involving safety concerns that cannot be resolved by school security staff.  Parents and students in the Fairfax County Public Schools system should carefully review the MOU and 2018-2019 Student Rights and Responsibilities guide before the school year begins on August 28, 2018.

How Do I Get Dash and Body Camera Recordings?

Dash and body camera recordings have changed policing and criminal prosecutions.  The recordings can resolve credibility contests between officers and the public, while also creating new legal issues and evidentiary questions. Beginning December 15, 2016, the City of Fairfax police department will equip all patrol and motor officers with body cameras.  Video of police incidents will be stored on a cloud-based server, where officers will have read-only access.  

What does this mean for you?  In all traffic and criminal matters, case preparation should include issuing a written request and/or subpoena to law enforcement for any dash and body camera footage.  The same should be issued to county 911 call centers, the Virginia Department of Transportation and local businesses to obtain any audio and video recordings of your incident.  At the very least, a letter should be sent to the proper government agency immediately after an incident to ensure that relevant recordings are preserved in case of future prosecution.

What Is the Difference Between Speeding and Reckless Driving?

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In Virginia, driving 1 to 19 miles per hour over the speed limit is speeding.  The penalties for this traffic infraction are a fine and the application of negative points on your Virginia driving record:

  • 3 points for driving 1 to 9 miles per hour over the speed limit.
  • 4 points for driving 10 to 19 miles per hour over the speed limit.
  • 6 points for driving 20 or more miles per hour over the speed limit.

Reckless driving is a criminal misdemeanor that occurs when driving 20 miles per hour over the maximum speed limit, driving over 80 miles per hour or, irrespective of the maximum speed limit, driving in a manner that endangers the life, limb or property of any person (including the driver).  Reckless driving carries a maximum punishment of 12 months of incarceration, a $2,500 fine, and a 6-month license suspension.  6 negative points will also be applied to your Virginia driving record.  

In September, 2016, the Virginia Department of Motor Vehicles added signs along Interstates 95 and 81 to remind drivers of reckless driving laws and penalties.  

When driving this holiday season, keep these regulations in mind.  If you unfortunately receive a citation, contact Melinda VanLowe to discuss an effective defense.

 

 

 

 

Virginia's School to Prison Pipeline

It is critical for students and parents to become informed about the school disciplinary process and the unfortunate nexus between education and the criminal justice system.  For more information on this topic, please review the September 12, 2016 broadcast of "Inside Scoop," moderated by Catherine S. Read.  During her segment, (14:59), Melinda VanLowe discusses how parents and students should respond when school administrators and school resource/police officers request to question/investigate your student. 

48 Hours

Within 48 hours, police officers in two distinct jurisdictions – Louisiana and Minnesota – fatally shot two young black men in the context of routine investigative stops.  These incidents occurred within weeks of the United States Supreme Court’s opinion in Utah v. Strieff.  The Court upheld what all parties characterized as the illegal seizure of a man merely because an officer observed him leaving an apartment under surveillance for alleged drug activity.   Writing the opinion of the Court, Justice Clarence Thomas identified two “good-faith mistakes” made by the officer that led to the illegal seizure: (1) the officer lacked any basis to assume Mr. Strieff was present in the apartment for a drug transaction and (2) the officer illegally seized Mr. Strieff to investigate activity in the apartment.  While the Court condoned forgiveness of these “good-faith mistakes,” the shootings in Louisiana and Minnesota exemplify the critical importance of constitutional protections and what can occur when these rights are violated.  Justice Sonia Sotomayor’s dissent in Strieff  best discusses why constitutional violations by police should not be excused by courts as mere “good faith mistakes:”

 

[f]or generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. . . . By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. . . . They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.  579 U.S.  _____ (2016) (external citations omitted)

 

Investigations of both shootings will hopefully produce accurate and substantive details of what occurred before these shootings and lead to necessary reform.

The State of the Law: Key Supreme Court Rulings and Virginia Legislative Changes.

     The Supreme Court concluded the October 2014 term. Some notable cases  are:

  • Obergefell v. Hodges:  Strikes down state bans on same-sex marriage as unconstitutional and requires states to issue marriages licenses to same sex couples and recognize lawful out-of-state marriages between same sex couples.

  • Glossip v. Gross: The Court determined that Oklahoma's use of the sedative midazolam as the first part of the lethal injection protocol does violate the Eighth Amendment prohibition against cruel and unusual punishment.  

  • King v. Burwell:  Upholds section 36B of "Obama Care," or The Patient Protection and Affordable Care Act Section, which makes tax credits available to individuals who purchase health insurance on an exchange created by the federal government.

     Amendments to the Code of Virginia have also taken effect in 2015.

  • 18.2-250.1:  In prosecutions for possession of marijuana in the form of cannabidoil oil or THC-A, defendants can now assert as an affirmative defense that they possessed such oil pursuant to a valid written certification issued by a practitioner in the course of her/his professional practice pursuant to treatment or to alleviate the symptoms of (i) the individual's intractable epilepsy or (ii) if such individual is the parent or legal guardian of a minor, such minor's intractable epilepsy.  If the defendant files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification.

  • 18.2-50.3:   Makes it a separate and distinct class 6 felony for a person to entice, solicit, request, or otherwise cause another to enter a dwelling house if the person intends to commit certain specified crimes, including capital murder, first and second degree murder, murder of a pregnant woman, abduction with intent to extort money or for immoral purposes, aggravated malicious wounding, robbery, rape, forcible sodomy, or object sexual penetration, within the dwelling house.

  • 19.2-310.2:  Adults convicted of the following offenses must now give a sample of her/his blood, saliva or tissue for DNA analysis:  §§ 16.1-253.2 (violation of a protective order), 18.2-60.3 (stalking), 18.2-60.4 (violation of a stalking protective order), 18.2-67.4:1 (infected sexual battery), 18.2-102 (unauthorized use of animal, aircraft, vehicle, or boat valued at less than $200), 18.2-121 (entering the property of another for purpose of damaging it), 18.2-387 (indecent exposure), 18.2-387.1 (obscene sexual display), and 18.2-479.1 (resisting arrest).  The offenses are added to five misdemeanor sex offenses that already a DNA sample to be provided: (i) § 18.2-67.4 (sexual battery), (ii) § 18.2-67.4:2 (sexual abuse of a child 13 years of age or older but under 15), (iii) § 18.2-67.5 (attempted sexual battery), (iv) § 18.2-130 (peeping), and (v) § 18.2-370.6 (penetrating the mouth of a child under 13 with the tongue). 

  • 46.2-816:  Now cars shall not follow more closely than is reasonable behind bicycles, electric assistive mobility devices, electric power-assisted bicycles, and mopeds.

  • 20-124.2:  Courts may now order child support to be paid or continue to be paid for any child over the age of 18 who is (a) severely and permanently mentally or physically disabled, and such disability existed prior to the child reaching the age of 18 or the age of 19 (b) unable to live independently and support himself; and (c) resides in the home of the parent seeking or receiving child support.

Please consult The Law Office of Melinda L. VanLowe, PC, to discuss how these new laws may impact you.

 

 

 

 

Fairfax County Police Department Training: Mental Illness.

Training and policy allow police officers to arrest and charge people experiencing symptoms of severe mental illnesses.  The procedures, however, do not appear to incorporate effective methods to diffuse mental health incidents and seem to stem from the notion that criminal prosecution is an effective vehicle for mentally ill citizens to "get help."  This flawed process temporarily incarcerates individuals but often fails to deliver the desperately needed permanent treatment, care and community support.  At its worst, these procedures have led to police shootings of mentally ill citizens.  Fatal shootings in Quincy, Massachusetts and Dallas, Texas are well publicized recent examples.   

On June 8, 2015, the Fairfax County Criminal Justice Academy conducted training titled "Hearing Voices."  This sensitivity training initiative is part of a 40-hour Crisis Intervention Team training course.  The Fairfax Times detailed officer responses to the training, which consisted of listening to recordings that purportedly replicate the daily, invasive hallucinations heard by citizens suffering from schizophrenia.  

This training is a positive step toward implementation of severely needed substantial reforms to the treatment of Virginia citizens suffering from mental illness.