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2000 SESSION


CHAPTER 1040
An Act to amend and reenact §§ 18.2-57.3, 18.2-64.2, 18.2-67.4, 19.2-299.2, 19.2-303.3, 53.1-82.1, 53.1-82.3, 53.1-150, 53.1-180, 53.1-181, 53.1-182, 53.1-182.1, 53.1-183, 53.1-184, 53.1-185, 53.1-185.1, 53.1-185.2, and 53.1-185.3 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 19.2-152.4:1 and 53.1-182.1:1, relating to the Comprehensive Community Corrections Act for Local-Responsible Offenders; bodily injury; persons charged with assault and battery against a family member; penalty.
[H 202]
Approved April 19, 2000

Be it enacted by the General Assembly of Virginia:

1. That §§ 18.2-57.3, 18.2-64.2, 18.2-67.4, 19.2-299.2, 19.2-303.3, 53.1-82.1, 53.1-82.3, 53.1-150, 53.1-180, 53.1-181, 53.1-182, 53.1-182.1, 53.1-183, 53.1-184, 53.1-185, 53.1-185.1, 53.1-185.2, and 53.1-185.3 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 19.2-152.4:1 and 53.1-182.1:1 as follows:

§ 18.2-57.3. Persons charged with first offense of assault and battery against a family or household member may be placed on probation; conditions; screening, evaluation, testing, education and treatment programs; costs and fees; violations; discharge.

When any a person who is no younger than eighteen years of age or who is considered an adult at the time of conviction has not previously been convicted of any offense under this article or under any statute of the United States or of any state or any ordinance of any local government relating to assault and battery against a family or household member or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to a violation of § 18.2-57.2, the 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 on probation upon terms and conditions.

As a term or condition, the court shall require the accused to be evaluated and, based on the results of screening, assessment, evaluation, and testing, to enter a an education or treatment and/or education program, if available, such as, in the opinion of the court, may be best suited to the needs of the accused. The program may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide.

The court shall require the person entering such a education or treatment program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, evaluation, testing, education and treatment, based upon the accused's ability to pay unless the person is determined by the court to be indigent.

As a condition of local probation, the court shall require the accused to successfully complete all treatment and/or education programs required and to be of good behavior for a period of not less than two years following the completion of local probation supervision.

The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting.

Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. As such, no charges dismissed pursuant to this section shall be eligible for expungement under § 19.2-392.2.

Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of § 18.2-308.

§ 18.2-64.2. Carnal knowledge of an inmate; parolee, probationer, or pretrial or posttrial offender; penalty.

An accused shall be guilty of carnal knowledge of an inmate, parolee, probationer, or pretrial or posttrial offender if he or she is an employee or contractual employee of, or a volunteer with, a state or local correctional facility or regional jail, the Department of Corrections, a local community-based probation corrections program or a pretrial services program; is in a position of authority over the inmate, probationer, parolee, or a pretrial or posttrial offender; knows that the inmate, probationer, parolee, or pretrial or posttrial offender is under the jurisdiction of the state or local correctional facility, a regional jail, the Department of Corrections, a local community-based probation corrections program, or a pretrial services program; and carnally knows, without the use of force, threat or intimidation (i) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail or (ii) a probationer, parolee, or a pretrial or posttrial offender under the jurisdiction of the Department of Corrections, a local community-based probation corrections program, a pretrial services program, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services program. Such offense is a Class 6 felony.

For the purposes of this section, "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse and animate or inanimate object sexual penetration.

§ 18.2-67.4. Sexual battery.

A. An accused shall be guilty of sexual battery if he or she sexually abuses (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation or ruse, or through the use of the complaining witness's mental incapacity or physical helplessness, or (ii) an inmate who has been committed to jail or convicted and sentenced to confinement in a state or local correctional facility or regional jail, and the accused is an employee or contractual employee of, or a volunteer with, the state or local correctional facility or regional jail; is in a position of authority over the inmate; and knows that the inmate is under the jurisdiction of the state or local correctional facility or regional jail, or (iii) a probationer, parolee, or a pretrial or posttrial offender under the jurisdiction of the Department of Corrections, a local community-based probation corrections program, a pretrial services program, a local or regional jail for the purposes of imprisonment, a work program or any other parole/probationary or pretrial services program and the accused is an employee or contractual employee of, or a volunteer with, the Department of Corrections, a local community-based probation corrections program, a pretrial services program or a local or regional jail; is in a position of authority over an offender; and knows that the offender is under the jurisdiction of the Department of Corrections, a local community-based probation corrections program, a pretrial services program or a local or regional jail.

B. Sexual battery is a Class 1 misdemeanor.

§ 19.2-152.4:1. Form of oath of office for local pretrial services officer; authorization to seek capias or warrant.

Every pretrial services officer who is an employee of a local pretrial services agency established by any city, county or combination thereof or operated pursuant to this article shall take an oath of office as prescribed in § 49-1 and to provide services pursuant to the requirements of this article before entering the duties of his office. The oath of office shall be taken before any general district or circuit court judge in any county or city which has established services for use by judicial officers pursuant to this article.

In addition, any officer of a pretrial services agency established or operated pursuant to this article may seek a warrant or capias from any judicial officer for the arrest of any person under the agency's custody and supervision for failure to comply with any conditions of release imposed by a judicial officer, for failure to comply with the conditions of pretrial supervision as established by a pretrial services agency, or when there is reason to believe that the person will fail to appear, will leave, or has left the jurisdiction to avoid prosecution.

§ 19.2-299.2. Alcohol and substance abuse screening and assessment for designated Class 1 misdemeanor convictions.

A. When a person is convicted of any offense committed on or after January 1, 2000, under Article 1 (§ 18.2-247 et seq.) or Article 1.1 (§ 18.2-265.1 et seq.) of Chapter 7 of Title 18.2, and such offense is punishable as a Class 1 misdemeanor, the court shall order the person to undergo a substance abuse screening as part of the sentence if the defendant's sentence includes probation supervision by a local community-based probation corrections program established pursuant to Article 2 (§ 53.1-180 et seq.) of Chapter 5 of Title 53.1 or participation in a local alcohol safety action program.

The court may order such screening upon conviction as part of the sentence of any other Class 1 misdemeanor if the defendant's sentence includes probation supervision by a local community-based probation corrections program established pursuant to Article 2 (§ 53.1-180 et seq.) of Chapter 5 of Title 53.1, participation in a local alcohol safety action program or any other sanction and the court has reason to believe the defendant has a substance abuse or dependence problem.

B. A substance abuse screening ordered pursuant to this section shall be conducted by the local alcohol safety action program. When an offender is ordered to enter programming under the local community-based probation corrections program established pursuant to Article 2 (§ 53.1-180 et seq.) of Chapter 5 of Title 53.1, rather than the local alcohol safety action program, the local community-based probation corrections program shall be responsible for the screening. However, if a local community-based probation corrections program has not been established for the locality, the local alcohol safety action program shall conduct the screening as part of the sentence.

C. If the screening indicates that the person has a substance abuse or dependence problem, an assessment shall be completed and if the assessment confirms that the person has a substance abuse or dependence problem, as a condition of a suspended sentence and probation, the court shall order the person to complete the substance abuse education and intervention component, or both as appropriate, of the local alcohol safety action program or such other treatment program, if available, such as in the opinion of the court would be best suited to the needs of the person. If the referral is to the local alcohol safety action program, the program may charge a fee for the education and intervention component, or both, not to exceed $300, based upon the defendant's ability to pay.

§ 19.2-303.3. Sentence to local community-based probation program; eligibility for participation; evaluation; sentencing; withdrawal or removal from program; payment for costs.

A. A Any defendant who is (i) convicted on or after July 1, 1995, of a misdemeanor or a nonviolent felony that is not a felony act of violence as defined in § 19.2-316.1 § 19.2-297.1, for and for which the court may impose imposes a jail sentence of twelve months of less, (ii) no younger than eighteen years of age or is considered an adult at the time of conviction,; and (iii) who meets other eligibility criteria pursuant to this section and § 53.1-180 may be sentenced to a local community-based probation corrections program established pursuant to § 53.1-181 by the local governing bodies within that judicial district or circuit.

B. Prior to or at the time of sentencing, the court may order the defendant placed in the a local community-based probation corrections program pursuant to § 53.1-181 upon a determination by the court that the defendant may benefit from the program and is capable of returning to society as a productive citizen with a reasonable amount of supervision and intervention including program components programs and services set forth in § 53.1-182.1. All or part of any sentence imposed may be that has been suspended, shall be conditioned upon the defendant's successful completion of any community-based corrections program established pursuant to § 53.1-181. The court may impose such other terms and conditions of supervision as it deems appropriate, including that the defendant abide by any additional requirements of supervision imposed or established by the program during the period of probation supervision.

C. Upon the defendant's Any officer of a local probation program established or operated pursuant to the Comprehensive Community Corrections Act for Local-Responsible Offenders (§ 53.1-180 et seq.) may seek a warrant or capias from any judicial officer for the arrest of any person on probation and under its supervision for removal from the program by the Comprehensive Community Corrections Act for Local Responsible Offenders Program (§ 53.1-180 et seq.) for (i) intractable behavior, or; (ii) refusal to comply with the terms and conditions imposed by the court,; (iii) refusal to comply with the requirements of local probation supervision established by the program; or (iv) the commission of a new offense while on local probation and under program supervision. Upon arrest, the defendant shall be brought before the court for a hearing. Upon finding that the defendant exhibited intractable behavior as defined herein, or refused to comply with terms and conditions imposed, the court may revoke all or part of the suspended sentence and supervision, and commit the defendant to serve whatever sentence was originally imposed or impose such other terms and conditions of supervision as it deems appropriate. "Intractable behavior" is that behavior which, in the determination of the court, indicates a defendant's unwillingness or inability to conform his behavior to that which is necessary for successful completion of the program or that the defendant's behavior is so disruptive as to threaten the successful completion of the program by other participants.

D. The court may order a defendant sentenced pursuant to this section to pay an amount to defray the cost of the services received in accordance with subsection D of § 53.1-185.2.

§ 53.1-82.1. Approval of jail projects by the Board; plan for community corrections.

The Board shall promulgate regulations requiring localities seeking approval of a jail project to (i) submit a plan for community-based corrections plan and (ii) demonstrate that the project can be completed and operated in a cost-efficient manner. Such regulations shall require, at a minimum, the following:

1. That the request include an analysis of staffing needs and a six-year operating budget for the proposed facility;

2. That the request include a plan for development and implementation of pre-trial detention alternatives and post-disposition punishment alternatives on a systematic local and regional basis, which plan shall be reviewed, modified and approved by the Board with assistance from the Department of Criminal Justice Services; and

3. That the project be based on a locality- or region-specific jail population forecast, which shall include an analysis of the impact on the jail population of the alternatives identified pursuant to subdivision 2 of this section, and which forecast shall be reviewed by the Department of Criminal Justice Services.

The Board shall approve no proposed jail project which does not conform to the regulations promulgated pursuant to this section.

The provisions of this section shall not apply to jail renovation projects which do not result in a net increase in available bed space.

§ 53.1-82.3. Budgeting schedule for jail projects.

A. Any city or county or any combination of cities or counties requesting state financial assistance pursuant to §§ 53.1-80, 53.1-81 or § 53.1-82 shall, on or before March 1 biennially in the odd-numbered years, submit to the Governor, in a format prescribed by the Department of Corrections for such purpose, a community-based corrections plans plan and specifications, including detailed cost estimates of any facility construction. On or before July 1 in the odd-numbered years, such localities shall also submit to the Governor, in a format prescribed for such purpose by the Department of the Treasury, the expected financing costs for any such facility construction in accordance with § 53.1-82.2. The Governor shall submit his recommendations for funding such projects as part of the budget bill on or before December 20 of the year immediately prior to the beginning of each regular session held in an even-numbered year of the General Assembly. Requests for appropriations of such funds shall be considered by the General Assembly only in even-numbered years.

B. In the event that the state share of reimbursable costs of the jail facility is estimated to be less than or equal to $1,000,000, such localities shall be exempt from submitting to the Governor, in a format prescribed for such purpose by the Department of the Treasury, the expected financing costs for any such facility construction in accordance with subsection A above, unless such localities seek reimbursement of financial costs associated with such facility construction.

§ 53.1-150. Contributions by persons on parole, probation, and work release.

A. Any person convicted of a felony, multiple felonies or a combination of felonies and misdemeanors shall be required to pay, as part of the fixed felony fee pursuant to § 17.1-275.1 or the fixed fee for felony reduced to misdemeanor assessed pursuant to § 17.1-275.2, a contribution towards the cost of his confinement, supervision or participation in a local community-based probation corrections program or home/electronic incarceration program as a condition of his sentence.

Any person convicted of a misdemeanor or multiple misdemeanors and who is sentenced to incarceration in a local correctional facility, or who is granted suspension of sentence and probation by a court of competent jurisdiction, or who is participating in a local community-based probation corrections program as provided in § 53.1-181, or who is participating in a home/electronic incarceration program as provided in § 53.1-131.2, shall be required to pay a fee of fifty dollars towards the cost of his confinement, supervision or participation as a condition of his sentence.

In the event of multiple convictions under any of the above provisions, the fees imposed herein shall be assessed on a pro rata basis. Such fees shall be in addition to any other costs or fees provided by law.

All fees assessed pursuant to this section for the cost of confinement, supervision or participation shall be paid to the clerk of the sentencing court. All such funds collected pursuant to this section shall be deposited in the general fund of the state treasury.

B. The sentencing court may exempt a defendant from the requirements of subsection A on the grounds of unreasonable hardship.

Any defendant who is exempted from the requirements of subsection A shall be required to perform community service as an alternative to the contribution toward the cost of his confinement, supervision or participation.

C. Any person (i) who is granted parole or (ii) who participates in a work release program pursuant to the provisions of §§ 53.1-60 and 53.1-131 shall be required to pay the fee required in subsection A as a condition of parole or work release.

§ 53.1-180. Purpose.

It is the purpose of this article to enable any city, county or combination thereof to develop, establish and maintain local community-based probation corrections programs to provide the judicial system with sentencing alternatives for certain misdemeanants or persons convicted of nonviolent felonies which are not felony acts of violence, as defined in § 19.2-316.1 § 19.2-297.1 and sentenced pursuant to § 19.2-303.3, for whom the court may impose imposes a jail sentence of twelve months or less and who may require less than institutional custody.

The article shall be interpreted and construed so as to effect the following purposes:

1. To allow individual cities, counties, or combinations thereof greater flexibility and involvement in responding to the problem of crime in their communities;

2. To provide more effective protection of society and to promote efficiency and economy in the delivery of correctional services;

3. To provide increased opportunities for offenders to make restitution to victims of crimes through financial reimbursement or community service;

4. To permit cities, counties or combinations thereof to operate and utilize local community-based probation programs and services specifically designed to meet the rehabilitative needs of selected offenders; and

5. To provide appropriate postsentencing alternatives in localities for certain offenders with the goal of reducing the incidence of repeat offenders.

§ 53.1-181. Establishment of program.

To facilitate local involvement and flexibility in responding to the problem of crime in their communities and to permit locally designed programs which will fit its needs, any city, county or combination thereof may, and any city, county or combination thereof which is required by § 53.1-82.1 to file a community-based corrections plan shall , establish a system of community-based services pursuant to this article. This system is to provide alternative programs for those defendants and offenders who, pursuant to § 19.2-303.3, are convicted, and sentenced by, or receive and placed on probation services through a court and who are considered suitable candidates for programs which require less than incarceration in a local correctional facility. Such programs and services may be provided by qualified public agencies or private agencies pursuant to appropriate contracts.

§ 53.1-182. Board to prescribe standards; criminal justice plan.

The Board of Criminal Justice Services shall approve standards as prescribed by the Department of Criminal Justice Services for the development, implementation, operation and evaluation of local community-based probation programs, services and facilities authorized by this article. Any city, county or combination thereof which establishes programs and provides services pursuant to this article shall submit a biennial criminal justice plan to the Department of Criminal Justice Services for review and approval.

§ 53.1-182.1. Mandated services; optional programs.

Any city, county or combination thereof which elects or is required to establish a local community-based probation corrections program pursuant to this article shall provide to the judicial system the following programs and services as components of local probation supervision: community service; home incarceration with or without electronic monitoring; electronic monitoring; probation supervision; and substance abuse screening, assessment, testing and treatment. Additional programs and services, including, but not limited to, local day reporting center programs and services, local halfway house programs and services for the temporary care of adults placed on probation, and law enforcement and public inebriate diversion into detoxification center programs, as defined in § 9-173.2, may be established by the city, county or combination thereof.

§ 53.1-182.1:1. Form of oath of office for local probation officers.

Every local probation officer who is an employee of a local community-based probation agency, established by any city, county or combination thereof, or operated pursuant to this article, that provides probation and related services pursuant to the requirements of this article, shall take an oath of office as prescribed in § 49-1 before entering the duties of his office. The oath of office shall be taken before any general district or circuit court judge in any city or county that has established services for the judicial system pursuant to this article.

§ 53.1-183. Community criminal justice boards.

Each county or city or combination thereof developing and establishing a community corrections local pretrial services or a community-based probation program pursuant to the provisions of this article shall establish a community criminal justice board. Each county and city participating in a community corrections local pretrial or community-based probation program shall be represented on the community criminal justice board. In the event that one county or city appropriates funds to the program as part of a multijurisdictional effort, any other participating county or city shall be considered to be participating in a program if such locality appropriates funds to the program. Appointments to the board shall be made by each local governing body. In cases of multijurisdictional participation, unless otherwise agreed upon, each participating city or county shall have an equal number of appointments. Boards shall be limited to fifteen members, except in cases of multijurisdictional boards which shall be limited to twenty members composed of the number of members established by resolution or ordinance of each participating jurisdiction. Each board shall include, at a minimum, the following mandatory members: a member from each governing body or a city or county manager, county administrator or executive, or assistant or deputy appointed by the governing body: a judge of the general district court; a circuit court judge; a juvenile and domestic relations district court judge; a chief magistrate; one chief of police or the sheriff in a jurisdiction not served by a police department to represent law enforcement; an attorney for the Commonwealth; a public defender, and/or an attorney who is experienced in the defense of criminal matters; a sheriff or the regional jail administrator responsible for jails serving those jurisdictions involved in the local pretrial services and community-based probation corrections program; a local educator; and a community services board administrator.

§ 53.1-184. Withdrawal from program.

Any participating city or county may, at the beginning of any calendar quarter, by ordinance or resolution of its governing authority, notify the Director of the Department of Criminal Justice Services and, in the case of multijurisdictional programs, the other member jurisdictions, of its intention to withdraw from the community corrections local community-based probation program. Such withdrawal shall be effective as of the last day of the quarter in which such notice is given.

§ 53.1-185. Responsibilities of community criminal justice boards.

On behalf of the counties, cities, or combinations thereof which they represent, the community criminal justice boards shall have the responsibility to:

1. Provide for the purchase, Advise on the development and operation of community local pretrial services and community-based probation programs, and services pursuant to § 19.2-152.2 and § 53.1-182.1, and facilities for use by the courts in diverting offenders from local correctional facility placements;

2. Assist community agencies and organizations in establishing and modifying programs and services for offenders on the basis of an objective assessment of the community's needs and resources;

3. Evaluate and monitor community programs, services and facilities to determine their impact on offenders;

4. Develop and amend the community corrections the criminal justice plan in accordance with guidelines and standards set forth by the Department of Criminal Justice Services and oversee the development and amendment of the community-based corrections plan as required by § 53.1-82.1 for approval by participating local governing bodies; and

5. Review the submission of all criminal justice grants regardless of the source of funding;

6. Facilitate local involvement and flexibility in responding to the problem of crime in their communities; and

5. 7. Do all things necessary or convenient to carry out the responsibilities expressly given in this article.

§ 53.1-185.1. Eligibility to participate.

A. Any city, county, or combination thereof, which elects to, or is required to establish programs shall participate in a local community-based probation program by ordinance or resolution of its governing authority. In cases of multijurisdictional participation, each ordinance or resolution shall identify the chosen administrator and fiscal agent as set forth in § 53.1-185.3. Such ordinances or resolutions shall be provided to the Director of the Department of Criminal Justice Services, regardless of funding source for the established programs.

B. Any community corrections local community-based probation program established pursuant to this article shall be available as a sentencing alternative for persons sentenced to incarceration in a local correctional facility or who otherwise would be sentenced to incarceration and who would have served their sentence in a local or regional correctional facility.

§ 53.1-185.2. Funding; failure to comply; prohibited use of funds.

A. Counties and cities shall be required to establish a local community-based probation corrections program under this article only to the extent funded by the Commonwealth through the general appropriation act.

B. The Department of Criminal Justice Services shall periodically review each program established under this article to determine compliance with the submitted plan and operating standards. If the Department of Criminal Justice Services determines that a program is not in substantial compliance with the submitted plan or standards, the Department of Criminal Justice Services may suspend all or any portion of financial aid made available to the locality for purposes of this article until there is compliance.

C. Funding shall be used for the provision of services and operation of programs and facilities but shall not be used for capital expenditures.

D. The Department of Criminal Justice Services, in conjunction with local boards, shall establish a statewide system of supervision and intervention fees to be paid by offenders participating in programs established under this article for reimbursement towards the costs of their supervision.

E. Any supervision or intervention fees collected by local programs established under this article shall be retained by the locality serving as fiscal agent and shall be utilized solely for program expansion and program development, or to supplant local costs of the program operation. Any program collecting such fees shall keep records of the collected fees, report the amounts to the locality serving as fiscal agent and make all records available to the community criminal justice board. Such fees shall be in addition to those any other imposed pursuant to § 53.1-150 on a defendant or offender as a condition of a deferred proceeding, conviction or sentencing by a court as required by general law.

§ 53.1-185.3. City or county to act as administrator and fiscal agent.

Each community criminal justice board Any single participating city or county shall act as the administrator and fiscal agent for the funds awarded for purposes of implementing a local pretrial services or community-based probation program. In cases of multijurisdictional participation, the governing authorities of the participating localities shall select a one of the participating city or county, cities or counties, with its consent, to act as administrator and fiscal agent for the funds awarded for purposes of implementing the community corrections local pretrial services or community-based probation program on behalf of the participating jurisdictions.

The participating city or county acting as administrator and fiscal agent pursuant to this section may be reimbursed for the actual costs associated with the implementation of the community corrections local pretrial services or community-based probation program, including fiscal administration, accounting, payroll services, financial reporting, and auditing. Any costs must be approved by the community criminal justice board and reimbursed from those funds received for the operation of the local community-based probation corrections program, and may not exceed one percent of those funds received in any single fiscal year.

2. That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010.