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2000 SESSION

009809684
HOUSE BILL NO. 931
Offered January 24, 2000
A BILL to amend and reenact §§ 16.1-305, 19.2-123, 19.2-130, 19.2-152.2, 19.2-152.3, 19.2-152.4, 19.2-152.6, 19.2-158, and 19.2-389.1 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 19.2-131.1 and 19.2-152.4:1, relating to bail procedures, bail arraignment, access to criminal history information and services provided pursuant to the Pretrial Services Act.
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Patron-- Cranwell
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Referred to Committee for Courts of Justice
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Be it enacted by the General Assembly of Virginia:

1. That §§ 16.1-305, 19.2-123, 19.2-130, 19.2-152.2, 19.2-152.3, 19.2-152.4, 19.2-152.6, 19.2-158, and 19.2-389.1 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding sections numbered 19.2-131.1 and 19.2-152.4:1 as follows:

§ 16.1-305. Confidentiality of court records.

A. Social, medical and psychiatric or psychological records, including reports or preliminary inquiries, predisposition studies and supervision records, of neglected and abused children, children in need of services, children in need of supervision and delinquent children shall be filed with the other papers in the juvenile's case file. All juvenile case files shall be filed separately from adult files and records of the court and shall be open for inspection only to the following:

1. The judge, probation officers and professional staff assigned to serve the juvenile and domestic relations district courts;

2. Representatives of a public or private agency or department providing supervision or having legal custody of the child or furnishing evaluation or treatment of the child ordered or requested by the court;

3. The attorney for any party, including the attorney for the Commonwealth;

4. Any other person, agency or institution, by order of the court, having a legitimate interest in the case or in the work of the court; however, for the purposes of preparation of a presentence report upon a finding of guilty in a circuit court, for the preparation of a pretrial investigation report, or for the preparation of a background report for the Parole Board, adult probation and parole officers, including United States Probation and Pretrial Services Officers any officer of a local pretrial services agency established or operated pursuant to Article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of Title 19.2, and any officer of a local community-based probation program, serving adult local-responsible offenders, established or operated pursuant to Article 2 (§ 53.1-180 et seq.) of Chapter 5 of Title 53.1, shall have access to an accused's or inmate's records in juvenile court and for the purpose of preparing the discretionary sentencing guidelines worksheets as directed by the court pursuant to subsection C of § 19.2-298.01, the attorney for the Commonwealth and the probation officer shall have access to the defendant's records in juvenile court.

A copy of the court order of disposition in a delinquency case shall be provided to a probation officer or attorney for the Commonwealth, when requested for the purpose of calculating sentencing guidelines. The copies shall remain confidential, but reports may be prepared using the information contained therein as provided in §§ 19.2-298.01 and 19.2-299.

B. All or any part of the records enumerated in subsection A, or information secured from such records, which is presented to the judge in court or otherwise in a proceeding under this law shall also be made available to the parties to the proceedings and their attorneys.

B1. If a juvenile fourteen years of age or older at the time of the offense is adjudicated delinquent on the basis of an act which would be a felony if committed by an adult, all court records regarding that adjudication and any subsequent adjudication of delinquency, other than those records specified in subsection A, shall be open to the public. However, if a hearing was closed, the judge may order that certain records or portions thereof remain confidential to the extent necessary to protect any juvenile victim or juvenile witness.

C. All other juvenile records, including the docket, petitions, motions and other papers filed with a case, transcripts of testimony, findings, verdicts, orders and decrees shall be open to inspection only by those persons and agencies designated in subsections A and B of this section.

D. Attested copies of papers filed in connection with an adjudication of guilty for an offense for which the clerk is required by § 46.2-383 to furnish an abstract to the Department of Motor Vehicles, which shows the charge, finding, disposition, name of the attorney for the juvenile, or waiver of attorney shall be furnished to an attorney for the Commonwealth upon certification by the prosecuting attorney that such papers are needed as evidence in a pending criminal, traffic, or habitual offender proceeding and that such papers will be only used for such evidentiary purpose.

E. Upon request, a copy of the court order of disposition in a delinquency case shall be provided to the Virginia Workers' Compensation Commission solely for purposes of determining whether to make an award to the victim of a crime, and such information shall not be disseminated or used by the Commission for any other purpose including but not limited to actions pursuant to § 19.2-368.15.

F. Staff of the court services unit or the attorney for the Commonwealth shall provide notice of the disposition in a case involving a juvenile who is committed to state care after being adjudicated for a criminal sexual assault as specified in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 to the victim or a parent of a minor victim, upon request. Additionally, if the victim or parent submits a written request, the Department of Juvenile Justice shall provide advance notice of such juvenile offender's anticipated date of release from commitment.

G. Any record in a juvenile case file which is open for inspection by the professional staff of the Department of Juvenile Justice pursuant to subsection A and is maintained in an electronic format by the court, may be transmitted electronically to the Department of Juvenile Justice. Any record so transmitted shall be subject to the provisions of § 16.1-300.

§ 19.2-123. Release of accused on unsecured bond or promise to appear; terms and conditions of release.

A. Any judicial officer shall, after having determined that the person is eligible for bail or when reconsidering bail, impose the least restrictive terms and conditions of bail that will reasonably assure the appearance of the person, the safety of the public or the person. A judicial officer may impose or require any one or any combination of the following conditions of release terms of bail:

1. Place the person in the custody and supervision of a designated person, organization or pretrial services agency which, for the purposes of this section, shall not include a court services unit established pursuant to § 16.1-233 A promise to appear;

2. Place restrictions on the travel, association or place of abode of the person during the period of release and restrict contacts with household members for a period not to exceed seventy-two hours;

2a. Require the execution of an unsecured bond;

2. A signed agreement to be released to the custody and under the supervision of a designated person or organization;

3. Require the execution of a secure bond which at the option of the accused shall be satisfied with sufficient solvent sureties, or the deposit of cash in lieu thereof. Only the actual value of any interest in real estate or personal property owned by the proposed surety shall be considered in determining solvency and solvency shall be found if the value of the proposed surety's equity in the real estate or personal property equals or exceeds the amount of the bond;

3. A signed agreement to be released to the custody and under the supervision of pretrial services agency established or operated pursuant to Article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of this title which, for the purposes of this section, shall not include a court services unit established pursuant to § 16.1-233. This term of bail may only be combined with a secured bond when the person informs the court that the bond will be satisfied by a deposit of cash in lieu thereof or by a person who acts as a surety without compensation and shall be combined with a secured bond when the surety is provided by a professional or corporate bondsman;

3a. Require that the person do any or all of the following: (i) maintain employment or, if unemployed, actively seek employment; (ii) maintain or commence an educational program; (iii) avoid all contact with an alleged victim of the crime and with any potential witness who may testify concerning the offense; (iv) comply with a specified curfew; (v) refrain from possessing a firearm, destructive device, or other dangerous weapon; (vi) refrain from excessive use of alcohol, or use of any illegal drug or any controlled substance not prescribed by a health care provider; and (vii) submit to testing for drugs and alcohol until the final disposition of his case; or

4. Impose any other condition deemed reasonably necessary to assure appearance as required, and to assure his good behavior pending trial, including a condition requiring that the person return to custody after specified hours or be placed on home electronic incarceration pursuant to § 53.1-131.2.

Upon satisfaction of the terms of recognizance, the accused shall be released forthwith.

In addition, where the accused is a resident of a state training center for the mentally retarded, the judicial officer may place the person in the custody of the director of the state facility, if the director agrees to accept custody. Such director is hereby authorized to take custody of such person and to maintain him at the training center prior to a trial or hearing under such circumstances as will reasonably assure the appearance of the accused for the trial or hearing.

4. The execution of an unsecured bond;

5. The execution of a secured bond, which at the option of the person shall be satisfied by a signed agreement by the person to deposit with the court an amount of cash to equal ten percent of the total secure bond imposed, but in no event shall the deposit be less than $25. The person shall be informed that when the terms and conditions of bail have been satisfied and the person has been discharged from all obligations, the court shall, (i) if the person is found not guilty, the case is dismissed, or nol-prossed, return to said person 85 percent of the sum which has been deposited and shall retain 15 percent, or not less than $5 nor more than $200, of the amount deposited as management and administration costs or (ii) if there is a plea or finding of guilt and the person is convicted and sentenced, or if the court defers proceedings without entering a judgment where the facts would justify a finding of guilt, apply the amount deposited with the court to defray or cover any fines, costs, or fees imposed as the result of the conviction and sentencing, or a deferred proceeding as required by law. When a person fails to perform the condition of appearance, the court shall proceed pursuant to § 19.2-143 relative to the deposit of cash bonds;

6. The execution of a secure bond, which at the option of the person shall be satisfied with solvent sureties, or the deposit of cash in lieu thereof. Only the actual value of any interest in real estate or personal property owned by the proposed surety shall be considered in determining solvency and solvency shall be found if the value of the proposed surety's equity in the real estate or personal property equals or exceeds the amount of the bond.

Upon satisfaction of the terms of bail, the person shall be released forthwith from confinement.

B. In any jurisdiction served by a pretrial services agency which offers a drug testing program approved for the purposes of this subsection by the chief general district court judge, any such person charged with a crime may be requested by such agency to give voluntarily a urine sample. This sample may be analyzed for the presence of phencyclidine (PCP), barbiturates, cocaine, opiates or such other drugs as the agency may deem appropriate prior to any hearing to establish bail. The judicial officer and agency shall inform the accused or juvenile being tested that test results shall be used by a judicial officer only at a bail hearing and only to determine appropriate conditions of release or to reconsider the conditions of bail at a subsequent hearing. All test results shall be confidential with access thereto limited to judicial officers, the attorney for the Commonwealth, defense counsel and, in cases where a juvenile is tested, the parents or legal guardian or custodian of such juvenile. However, in no event shall the judicial officer have access to any test result prior to making a bail release determination or to determining the amount of bond, if any. Following this determination, the judicial officer shall consider the test results and the testing agency's report and accompanying recommendations, if any, in setting appropriate conditions of release. In no event shall a decision regarding a release determination be subject to reversal on the sole basis of such test results. Any accused or juvenile whose urine sample has tested positive for such drugs and who is admitted to bail may, as a condition of release, be ordered to refrain from use of alcohol or illegal drugs and may be required to be tested on a periodic basis until final disposition of his case to ensure his compliance with the order. Sanctions for a violation of any condition of release, which violations shall include subsequent positive drug test results or failure to report as ordered for testing, may be imposed in the discretion of the judicial officer and may include imposition of more stringent conditions of release, contempt of court proceedings or revocation of release. Any test given under the provisions of this subsection which yields a positive drug test result shall be reconfirmed by a second test if the person tested denies or contests the initial drug test positive result. The results of any drug test conducted pursuant to this subsection shall not be admissible in any judicial proceeding other than for the imposition of sanctions for a violation of a condition of release.

B. In addition to setting the terms of bail as in subsection A the judicial officer may require that the person do any or all of the following, as conditions of release on bail: (i) maintain employment or, if unemployed, actively seek employment; (ii) maintain or commence an educational program; (iii) avoid all contact with an alleged victim of the crime and with any potential witness who may testify concerning the offense; (iv) comply with a specified curfew; (v) refrain from possessing a firearm, destructive device, or other dangerous weapon; (vi) refrain from excessive use of alcohol, over the counter medication, or a controlled substance prescribed by a health care provider, or use of any illegal drug or any controlled substance not prescribed by a health care provider; (vii) submit to screening, assessment or testing for drugs and alcohol until the final disposition of his case; (viii) abide by any conditions of restricted travel, association or place of abode during the period of release; (ix) avoid contacts with household members for a period not to exceed seventy-two hours or abide by the conditions of a protective order; (x) abide by the requirements of supervision established by a pretrial service agency; or (xi) abide by any other condition deemed reasonably necessary to assure appearance as required and to assure his good behavior pending trial, including a condition requiring that the person return to custody or confinement after specified hours, or be placed on home electronic incarceration pursuant to § 53.1-131.2.

C. [Repealed.] In addition, where the person is a resident of a state training center for the mentally retarded, the judicial officer may place the person in the custody of the director of the state facility, if the director agrees to accept custody. The director is hereby authorized to take custody of such person and maintain him at the training center prior to trial or hearing under such circumstances as will reasonably assure the appearance of the person for trial or any subsequent hearing.

D. Nothing in this section shall be construed to prevent an officer taking a juvenile into custody from releasing that juvenile pursuant to § 16.1-247. If any condition of release imposed under the provisions of this section is violated, a judicial officer may issue a capias or order to show cause why the recognizance should not be revoked.

D. In any jurisdiction served by a pretrial services agency which offers a drug or alcohol screening or testing program, any such person charged with a crime may be requested by such agency to voluntarily submit to a drug or alcohol screening, to take a breath test for presence of alcohol, or give a urine sample. This sample may be analyzed for the presence of alcohol, phencyclidene (PCP), barbiturates, cocaine opiates or such other drugs as the agency may deem appropriate prior to any hearing to establish or reconsider the terms and conditions of bail. The judicial officer and agency shall inform the person being screened or tested that screening or test results shall be used by a judicial officer at a bail hearing only to determine appropriate conditions of release, or to reconsider the terms and conditions of bail or supervision at any subsequent hearing. All screening or test results, and any pretrial investigation report containing the screening or test results shall at all times be kept confidential by each recipient with access thereto limited to judicial officers, the attorney for the Commonwealth, defense counsel, other pretrial service agencies, any criminal justice agency as defined in § 9-169 and, in cases where a juvenile is screened or tested, the parents or legal guardian or custodian of such juvenile. However, in no event shall the judicial officer have access to the results of any screening or test result prior to making a bail release determination. Following this determination, the judicial officer shall consider the screening or test results and the pretrial services agency report and any accompanying recommendations in setting the appropriate terms of bail and in imposing additional conditions of release as set forth in subsection B. In no event shall a decision regarding determination be subject to reversal on the sole basis of such screening or test results.

E. Sanctions for a violation of any conditions of release while on bail, which violations shall include subsequent positive drug or alcohol test results or failure to report as ordered for testing may be imposed solely at the discretion of the judicial officer and may include imposition of more stringent conditions of release, contempt of court proceedings, or revocation of release on bail. Any test given under the provisions of this subsection which yields a positive drug or alcohol test shall be reconfirmed by a second test only if the person denies or contests the initial drug or alcohol test positive result. The results of any drug or alcohol test conducted pursuant to this subsection shall not be admissible in any judicial proceeding other than for the imposition of additional sanctions for a violation of a condition of release or for revocation of release on bail.

F. Nothing in this section shall be construed to prevent an officer taking a juvenile into custody from releasing that juvenile pursuant to § 16.1-247.

G. If the person violates any condition of release imposed under the provisions of this section, a judicial officer may issue a capias or order to show cause why more stringent conditions of release should not be imposed, why the person should not be held in contempt of court, or why bail should not be revoked. In addition, any officer of a pretrial services agency established or operated pursuant to the Pretrial Services Act (§ 19.2-152.2 et seq.) may also seek a warrant or capias from any judicial officer for the arrest of any person under its 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.

§ 19.2-130. Bail in subsequent proceeding arising out of initial arrest.

Any person admitted to bail by a judge or clerk of a district court or by a magistrate judicial officer shall not be required to be admitted to bail in any subsequent proceeding arising out of the initial arrest unless the court having jurisdiction of such subsequent proceeding deems the initial amount of bond or security taken inadequate, or the terms or conditions of bail to be excessive, unsuitable, unsatisfactory or insufficient. When the court having jurisdiction of the proceeding believes the amount of bond or security inadequate, or the terms or conditions of bail to be excessive, unsuitable, unsatisfactory or insufficient, it may at any subsequent hearing where bail can be reconsidered, with the person present increase the amount of such bond or security or, require new and additional sureties, or otherwise amend the terms and conditions of bail as prescribed in § 19.2-123.

§ 19.2-131.1. Initial appearance and arraignment for persons confined awaiting trial permitted by any court within a judicial district and circuit served by a regional jail.

Any judge of any court located in any county, city or town which is served by a regional jail, as defined by §§ 53.1-81, 53.1-82, and Article 3.1 (§ 53.1-95.1 et seq.) of Chapter 3 of Title 53.1, may conduct, for persons charged with an offense who are held in lieu of a secure bond or not free on bail or otherwise, a subsequent bail review hearing at the initial appearance or arraignment pursuant to § 19.2-158, for any of the localities served by the regional jail provided that the localities are part of the same judicial district and circuit.

§ 19.2-152.2. Purpose; establishment of program.

A. It is the purpose of this article to provide more effective protection of society by establishing programs which will assist judicial officers in discharging their duties pursuant to Articles 1 (§ 19.2-119 et seq.) and 2 (§ 19.2-135 et seq.) of Chapter 9, and Article 3 (§ 19.2-157 et seq.) of Chapter 10 of this title. Such programs are intended to provide better information and services for use by judicial officers in determining the risk to public safety and the assurance of appearance of persons held in custody and charged with an offense, other than an offense punishable by death, who are pending trial or hearing.

B. Any city, county or combination thereof may establish a pretrial services program and any city, county or combination thereof required to submit a community-based corrections plan pursuant to § 53.1-82.1 shall establish a pretrial services program. Any city, county or combination thereof establishing a pretrial services program shall participate by ordinance or resolution of its governing authority. In cases of multi-jurisdictional participation, each ordinance or resolution shall identify the chosen administrator and fiscal agent as set forth in § 53.1-185.3. Such ordinances and resolutions shall be provided to the Director of the Department of Criminal Justice Services, regardless of the funding source for the established programs.

§ 19.2-152.3. Department of Criminal Justice Services to prescribe standards; criminal justice plan.

A. The Department of Criminal Justice Services shall prescribe standards for the development, implementation, operation and evaluation of programs authorized by this article. The Department of Criminal Justice Services shall develop risk assessment and other instruments to be used by pretrial services programs in assisting judicial officers in discharging their duties pursuant to Articles 1 (§ 19.2-119 et seq.) and 2 (§ 19.2-135 et seq.) of Chapter 9, and Article 3 (§ 19.2-157 et seq.) of Chapter 10 of this title. Any pretrial investigation report submitted to any judicial officer by a pretrial services agency established or operated pursuant to § 19.2-152.2 shall at all times be kept confidential by each recipient and shall be filed as part of the record in each case. Any report so filed shall be sealed upon entry by the court and made available only by court order, except that such reports or copies thereof shall be made available by the pretrial services agency at any time to any criminal justice agency as defined in § 9-169 or to counsel for the defense.

B. Any city, county or combination thereof which establishes a pretrial services program pursuant to this article shall submit a biennial criminal justice plan to the Department of Criminal Justice Services for review and approval.

§ 19.2-152.4. Mandated services.

Any city, county or combination thereof which elects or is required to establish a pretrial services program shall provide all information and services for use by judicial officers as set forth in Articles 1 (§ 19.2-119 et seq.), and 2 (§ 19.2-135 et seq.) of Chapter 9, and Article 3 (§ 19.2-157 et seq.) of Chapter 10 of this title.

§ 19.2-152.4:1. Form of oath of office for local pretrial services officer.

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 Chapter 9 (§ 19.2-152.2 et seq.) of this title, shall take an oath of office as prescribed in § 49-1 and to provide services pursuant to the requirements of the Pretrial Services Act 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 which has established services for judicial officers pursuant to this chapter.

§ 19.2-152.6. 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 multi-jurisdictional programs, the other member jurisdictions of its intention to withdraw from the pretrial services program. Such withdrawal shall be effective as of the last day of the quarter in which such notice is given.

§ 19.2-158. When person not free on bail shall be informed of right to counsel and the terms and conditions of bail.

Every person charged with an offense described in § 19.2-157, who is not free on bail or otherwise, shall be brought before the judge of a any court not of record, unless the circuit court issues process commanding the presence of the person, in which case the person shall be brought before the circuit court, on the first day on which such court sits after the person is charged, at which time the judge shall inform the accused of the amount of his. If any court not of record sits on any day prior to the scheduled sitting of court which issued the process, the person shall be brought before the court not of record. The judge of any court shall inform the person of the charges brought against him, of the terms and conditions of bail, and his right to counsel. The court shall also hear and consider on its own motion, or based on information presented in a pretrial investigation report prepared by a pretrial services agency established or operated pursuant to Article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of this title, or motions by the person or Commonwealth relating to bail or conditions of release pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. If the court not of record sits on a day prior to the scheduled sitting of the court which issued process, the person shall be brought before the court not of record.

No hearing on the charges against the accused person shall be had until the foregoing conditions have been complied with, and the accused person shall be allowed a reasonable opportunity to employ counsel of his own choice, or, if appropriate, the statement of indigence provided for in § 19.2-159 may be executed.

§ 19.2-389.1. Dissemination of juvenile record information.

Record information maintained in the Central Criminal Records Exchange pursuant to the provisions of § 16.1-299 shall be disseminated only (i) to make the determination as provided in §§ 18.2-308.2 and 18.2-308.2:2 of eligibility to possess or purchase a firearm, (ii) to aid in the preparation of a pretrial investigation report prepared by a local pretrial services agency established or operated pursuant to Article 5 (§ 19.2-152.2 et seq.) of Chapter 9 of this title, a presentence or postsentence investigation report pursuant to § 19.2-264.5 or § 19.2-299 or in the preparation of the discretionary sentencing guidelines worksheets pursuant to subsection C of § 19.2-298.01, (iii) to aid local community-based probation programs established or operated pursuant to Article 2 (§ 53.1-180 et seq.) of Chapter 5 of Title 53.1, serving adult local responsible offenders, and all court service units serving juvenile delinquent offenders, (iv) for fingerprint comparison utilizing the fingerprints maintained in the Automated Fingerprint Information System (AFIS) computer, and (v) to attorneys for the Commonwealth to secure information incidental to sentencing and to attorneys for the Commonwealth and probation officers to prepare the discretionary sentencing guidelines worksheets pursuant to subsection C of § 19.2-298.01.