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2003 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 9.1-177.1 and 19.2-299 of the Code of Virginia are amended and reenacted as follows:
§ 9.1-177.1. Confidentiality of records of and reports on adult persons under investigation by or placed on probation supervision with a local community-based probation program.
A. Any investigation report prepared by a local probation officer is
confidential and is exempt from the Virginia Freedom of Information Act (§
2.2-3700 et seq.). Such reports shall be filed as a part of the case record. Such
reports shall be sealed upon receipt by the court and made available only by
court order and shall be sealed upon final order by the court; except that such
reports shall be available upon request to (i) any criminal justice agency, as
defined in § 9.1-101, of this or any other state or of the United States; (ii)
any agency where the accused is referred for assessment or treatment; or (iii)
counsel for the person who is the subject of the report.
B. Any report on the progress of an offender under the supervision or of a local community-based probation agency and any information relative to the identity of or inferring personal characteristics of an accused, including demographic information, diagnostic summaries, records of office visits, medical, substance abuse, psychiatric or psychological records or information, substance abuse screening, assessment and testing information, and other sensitive information not explicitly classified as criminal history record information, is exempt from the Virginia Freedom of Information Act (§ 2.2-3700 et seq.). However, such information may be disseminated to criminal justice agencies as defined in § 9.1-101 in the discretion of the custodian of these records.
§ 19.2-299. Investigations and reports by probation officers in certain cases.
A. When a person is tried in a circuit court (i) upon a charge of assault and
battery in violation of § 18.2-57 or § 18.2-57.2, stalking in violation of §
18.2-60.3, sexual battery in violation of § 18.2-67.4, attempted sexual battery
in violation of § 18.2-67.5, or driving while intoxicated in violation of §
18.2-266, and is adjudged guilty of such charge, the court may, or on motion of the
defendant shall, or (ii) upon a felony charge not set forth in subdivision
(iii) below, the court may when there is a plea agreement between the defendant
and the Commonwealth and shall when the defendant pleads guilty without a plea
agreement or is found guilty by the court after a plea of not guilty, or (iii)
the court shall when a person is charged and adjudged guilty of a felony
violation, or conspiracy to commit or attempt to commit a felony violation, of
§§ 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2,
18.2-67.2:1, 18.2-67.3, 18.2-67.4:1, 18.2-67.5:1, 18.2-355, 18.2-356, 18.2-357,
18.2-358, 18.2-361, 18.2-362, 18.2-366, 18.2-367, 18.2-368, 18.2-370, 18.2-370.1, or
§ 18.2-370.2, or any attempt to commit or conspiracy to commit any felony
violation of §§ 18.2-67.5, 18.2-67.5:2, or § 18.2-67.5:3, direct a probation
officer of such court to thoroughly investigate and report upon the history of the accused,
including a report of the accused's criminal record as an adult and available juvenile court
records, and all other relevant facts, to fully advise the court so the court
may determine the appropriate sentence to be imposed. The probation officer,
after having furnished a copy of this report at least five days prior to
sentencing to counsel for the accused and the attorney for the Commonwealth for
their permanent use, shall submit his report in advance of the sentencing
hearing to the judge in chambers, who shall keep such report confidential. The
probation officer shall be available to testify from this report in open court
in the presence of the accused, who shall have been advised of its contents and
be given the right to cross-examine the investigating officer as to any matter
contained therein and to present any additional facts bearing upon the matter.
The report of the investigating officer shall at all times be kept confidential
by each recipient, and shall be filed as a part of the record in the case. Any
report so filed shall be sealed upon the entry of the sentencing order by the
court and made available only by court order and shall be sealed upon final
order by the court, except that such reports or copies thereof shall be
available at any time to any criminal justice agency, as defined in § 9.1-101,
of this or any other state or of the United States; to any agency where the
accused is referred for treatment by the court or by probation and parole
services; and to counsel for any person who has been indicted jointly for the
same felony as the person subject to the report. Any report prepared pursuant
to the provisions hereof shall without court order be made available to counsel
for the person who is the subject of the report if that person is charged with
a felony subsequent to the time of the preparation of the report. The
presentence report shall be in a form prescribed by the Department of
Corrections. In all cases where such report is not ordered, a simplified report
shall be prepared on a form prescribed by the Department of Corrections.
B. As a part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony, the court probation officer shall advise any victim of such offense in writing that he may submit to the Virginia Parole Board a written request (i) to be given the opportunity to submit to the Board a written statement in advance of any parole hearing describing the impact of the offense upon him and his opinion regarding the defendant's release and (ii) to receive copies of such other notifications pertaining to the defendant as the Board may provide pursuant to subsection B of § 53.1-155.
C. As part of any presentence investigation conducted pursuant to subsection A when the offense for which the defendant was convicted was a felony drug offense set forth in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, the presentence report shall include any known association of the defendant with illicit drug operations or markets.
D. As a part of any presentence investigation conducted pursuant to subsection A, when the offense for which the defendant was convicted was a felony, not a capital offense, committed on or after January 1, 2000, the defendant shall be required to undergo a substance abuse screening pursuant to § 18.2-251.01.