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2008 SESSION
080284216Be it enacted by the General Assembly of Virginia:
1. That § 9.1-501 of the Code of Virginia is amended and reenacted as follows:
§ 9.1-501. Conduct of investigation.
The provisions of this section shall apply whenever an investigation by an agency focuses on matters which could lead to an adverse personnel action, limited to the dismissal, demotion, suspension, written reprimand, or transfer for punitive reasons of a law-enforcement officer:
1. Any questioning of the officer shall take place at a reasonable time and place as designated by the investigating officer, preferably when the officer under investigation is on duty and at the office of the command of the investigating officer or at the office of the local precinct or police unit of the officer being investigated, unless matters being investigated are of such a nature that immediate action is required.
2. Any officer under investigation shall be entitled to counsel by an attorney or any other person of the officer's choice, such as an employee representative, as long as the employee representative is not a party to the action being investigated, immediately prior to and during the entire period of any questioning session unless the officer consents in writing to being questioned outside the presence of counsel or representative. The officer under investigation shall pay the cost of any attorney or other representation.
2 Prior to the officer being questioned, he shall be
informed of (i) 3. An officer under investigation shall be notified at
least 24 hours prior to the commencement of questioning or otherwise being
required to provide information to the investigating agency. Such notice shall
include the nature and scope of the investigation, a detailed description of
any allegation contained in the written complaint, a description of each violation
alleged in the complaint for which suspicion exists that the officer may have
engaged in conduct that would be subject to disciplinary action, and the
name and, rank, and command of the investigating officer
and of any or individual to be present during the questioning and
(ii) the nature of who will be conducting the investigation. In
the event that the chief law-enforcement officer, or his designee, determines
that the preservation of public safety requires immediate disclosure of
information from a law-enforcement officer following a particular incident,
then such officer shall be provided his rights against self-incrimination,
including that anything he says may be used against him in a criminal
proceeding, that he has the right to refuse to answer if the disclosure would
tend to incriminate him, and the failure to answer shall not be used as a
reason to remove him from his law-enforcement position and the 24-hour notice
period in this subdivision shall be waived. The complainant shall not conduct
or supervise the investigation or serve as an investigator.
34. When a blood or urine specimen is taken from
a law-enforcement officer for the purpose of determining whether the officer
has used drugs or alcohol, the specimen shall be divided and placed into two
separate containers. One specimen shall be tested while the other is held in a
proper manner to preserve the specimen by the facility collecting or testing
the specimen. Should the first specimen test positive, the law-enforcement
officer shall have the right to require the second specimen be sent to a
laboratory of his choice for independent testing in accordance generally with
the procedures set forth in §§ 18.2-268.1 through 18.2-268.12. The officer
shall notify the chief of his agency in writing of his request within 10 days
of being notified of positive specimen results. The laboratory chosen by the
officer shall be accredited or certified by one or more of the following
bodies: the American Society of Crime Laboratory Directors/Laboratory Accreditation
Board (ASCLD/LAB), the College of American Pathologists (CAP), the United
States Department of Health and Human Services Substance Abuse and Mental
Health Services Administration (SAMHSA), or the American Board of Forensic
Toxicology (ABFT).
5. At the conclusion of the investigation, the officer under investigation shall have the opportunity to review the file prepared by the investigating officer, including, but not limited to, transcripts of interviews by the officer, witnesses, and the complainant. The name and other identifying information of any witness or the complainant may be redacted prior to the review of the file by the officer under investigation.
6. This section shall not apply to any investigation identified as a criminal investigation.