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2010 SESSION
10100665DBe 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 services agency.
A. Any investigation report, including a presentencing
investigation report, prepared by a local community-based 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 [ , including sentencing guideline worksheets, ] shall be
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; or (iv) counsel who represents the person in pursuit
of a post-conviction remedy, subject to the limitations set forth in § 37.2-901.
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, unless waived
by the court and the defendant and the attorney for the Commonwealth, 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 § 18.2-46.2, 18.2-46.3, 18.2-48, clause (2) or (3) of §
18.2-49, § 18.2-61, 18.2-63, 18.2-64.1, 18.2-64.2, 18.2-67.1, 18.2-67.2,
18.2-67.3, 18.2-67.4:1, 18.2-67.5, 18.2-67.5:1, 18.2-355, 18.2-356, 18.2-357,
18.2-361, 18.2-362, 18.2-366, 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, any information regarding the accused's participation
or membership in a criminal street gang as defined in § 18.2-46.1, and all
other relevant facts, to fully advise the court so the court may determine the
appropriate sentence to be imposed. Unless the defendant or the attorney for
the Commonwealth objects, the court may order that the report contain no more
than the defendant's criminal history, any history of substance abuse, any
physical or health-related problems as may be pertinent, and any applicable
sentencing guideline worksheets. This expedited report shall be subject to all
the same procedures as all other sentencing reports and sentencing guidelines
worksheets. 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. Counsel for the accused may provide the accused with
a copy of the presentence report. The probation officer shall be available to
testify from this report in open court in the presence of the accused, who
shall have been provided with a copy of the presentence report by his counsel
or 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 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 Subject to the limitations set
forth in § 37.2-901, any report prepared pursuant to the provisions hereof
[ , including the sentencing guideline worksheets,
] shall without court order be made available to counsel for the person who is
the subject of the report if that person (i) is charged with a felony
subsequent to the time of the preparation of the report or (ii) has been
convicted of the crime or crimes for which the report was prepared and is
pursuing a post-conviction remedy. 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. For the purposes of this
subsection, information regarding the accused's participation or membership in
a criminal street gang may include the characteristics, specific rivalries,
common practices, social customs and behavior, terminology, and types of crimes
that are likely to be committed by that criminal street gang.
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.