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1998 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 18.2-119, 18.2-308.1:4, 19.2-81.3, 19.2-152.8, 19.2-152.9, and 19.2-152.10 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 6 of Chapter 4 of Title 18.2 a section numbered 18.2-60.4 as follows:
§ 18.2-60.4. Violation of stalking protective orders; penalty.
Any person who violates any provision of a protective order issued pursuant to §§ 19.2-152.8, 19.2-152.9 or § 19.2-152.10 is guilty of a Class 1 misdemeanor. Conviction hereunder shall bar a finding of contempt for the same act.
§ 18.2-119. Trespass after having been forbidden to do so; penalties.
If any person without authority of law goes upon or remains upon the lands,
buildings or premises of another, or any portion or area thereof, after having
been forbidden to do so, either orally or in writing, by the owner, lessee,
custodian or other person lawfully in charge thereof, or after having been
forbidden to do so by a sign or signs posted by such persons or by the holder
of any easement or other right-of-way authorized by the instrument creating
such interest to post such signs on such lands, structures, premises or portion
or area thereof at a place or places where it or they may be reasonably seen,
or if any person, whether he is the owner, tenant or otherwise entitled to the
use of such land, building or premises, goes upon, or remains upon such land,
building or premises after having been prohibited from doing so by a court of
competent jurisdiction by an order issued pursuant to §§ 16.1-253,
16.1-253.1, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14,
16.1-278.15, or § 16.1-279.1, 19.2-152.8, 19.2-152.9, or
§ 19.2-152.10 or an ex parte order issued pursuant to § 20-103,
and after having been served with such order, he shall be guilty of a Class 1
misdemeanor. This section shall not be construed to affect in any way the
provisions of §§ 18.2-132 through 18.2-136.
§ 18.2-308.1:4. Purchase or transportation of firearm by persons subject to protective orders; penalty.
A. It shall be unlawful for any person who is subject to (i) a protective order
entered pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, or
§ 16.1-279.1, 19.2-152.8, 19.2-152.9, or § 19.2-152.10;
(ii) an order issued pursuant to subsection b of §
20-103; or (iii) an order entered pursuant to subsection E of §
18.2-60.3 to purchase or transport any firearm while the order is in effect. A
violation of this subsection shall be punishable as a Class 1 misdemeanor.
B. Any firearm purchased or transported in violation of this section shall be forfeited to the Commonwealth and disposed of as provided in § 18.2-310.
§ 19.2-81.3. Arrest without a warrant authorized in cases of assault and battery against a family or household member and stalking and for violations of protective orders; procedure, etc.
A. Any law-enforcement officer, as defined in § 19.2-81, may arrest without a warrant for an alleged violation of §§ 18.2-57.2, 18.2-60.4 or § 16.1-253.2 regardless of whether such violation was committed in his presence, if such arrest is based on probable cause or upon personal observations or the reasonable complaint of a person who observed the alleged offense or upon personal investigation.
B. A law-enforcement officer having probable cause to believe that a violation
of § 18.2-57.2 or a violation of § 16.1-253.2 has occurred
shall arrest and take into custody the person he has probable cause to believe,
based on the totality of the circumstances, was the primary physical aggressor
unless there are special circumstances which would dictate a course of action
other than an arrest.
C. Regardless of whether an arrest is made, the officer shall file a written report with his department of any incident in which he has probable cause to believe family abuse has occurred, including, where required, a statement in writing that there are special circumstances which would dictate a course of action other than an arrest. Upon request of the allegedly abused person, the department shall make a summary of the report available to the allegedly abused person. The officer shall also provide the allegedly abused person, both orally and in writing, information regarding the legal and community resources available to the allegedly abused person.
D. In every case in which a law-enforcement officer makes an arrest under this section, he shall petition for an emergency protective order as authorized in § 16.1-253.4 when the person arrested and taken into custody is brought before the magistrate. Regardless of whether an arrest is made, if the officer has probable cause to believe that a danger of acts of family abuse exists, the law-enforcement officer shall seek an emergency protective order under § 16.1-253.4.
E. A law-enforcement officer investigating any complaint of family abuse, including but not limited to assault and battery against a family or household member may, upon request, transport, or arrange for the transportation of an abused person to a hospital, safe shelter, or magistrate. Any local law-enforcement agency may adopt a policy requiring an officer to transport or arrange for transportation of an abused person as provided in this subsection.
F. As used in this section, "family or household member" means (i) the person's
spouse, whether or not he or she resides in the same home with the
person,; (ii) the person's former spouse, whether or not
he or she resides in the same home with the person,;
(iii) the person's parents, stepparents, children, stepchildren, brothers and
sisters, grandparents and grandchildren who reside in the same home with the
person,; (iv) the person's mother-in-law, father-in-law,
sons-in-law, daughters-in-law, brothers-in-law and sisters-in-law who reside in
the same home with the person,; (v) any person who has a
child in common with the defendant, whether or not the person and that person
have been married or have resided together at any time,;
or (vi) any individual who cohabits or who, within the previous twelve months,
cohabited with the person, and any children of either of them then residing in
the same home with the defendant.
G. As used in this section, a "law-enforcement officer" means (i) any full-time
or part-time employee of a police department or sheriff's office which is part
of or administered by the Commonwealth or any political subdivision thereof and
who is responsible for the prevention and detection of crime and the
enforcement of the penal, traffic or highway laws of this Commonwealth and (ii)
any member of an auxiliary police force established pursuant to subsection B of
§ 15.1-159.2 15.2-1731. Part-time employees are
compensated officers who are not full-time employees as defined by the
employing police department or sheriff's office.
§ 19.2-152.8. Emergency protective orders authorized in cases of stalking.
A. Any judge of a circuit court, general district court, juvenile and domestic relations district court or magistrate may issue a written or oral ex parte emergency protective order pursuant to this section in order to protect the health or safety of any person.
B. When a law-enforcement officer or an allegedly stalked person asserts under
oath to a judge or magistrate that such person is being or has been subjected
to stalking and on that assertion or other evidence the judge or magistrate
finds that (i) there is probable danger of a further such offense being
committed by the respondent against the petitioner allegedly
stalked person, and (ii) a warrant for the arrest of the respondent has
been issued, the judge or magistrate shall issue an ex parte emergency
protective order imposing one or more of the following conditions on the
respondent:
1. Prohibiting acts of stalking in violation of § 18.2-60.3;
2. Prohibiting such contacts by the respondent with the petitioner
allegedly stalked person or the petitioner's
such person's family or household members as the judge or magistrate
deems necessary to protect the safety of such persons; and
3. Such other conditions as the judge or magistrate deems necessary to prevent further acts of stalking, communication or other contact by the respondent.
C. An emergency protective order issued pursuant to this section shall expire
at 5 p.m. on the next business day that the court is in session or
seventy-two hours after issuance, whichever is later. If
the expiration of the seventy-two-hour period occurs at a time that the court
is not in session, the emergency protective order shall be extended until 5
p.m. of the next business day that the court which issued the order is in
session. The respondent may at any time file a motion with the court
requesting a hearing to dissolve or modify the order. The hearing on the motion
shall be given precedence on the docket of the court.
D. A law-enforcement officer may request an emergency protective order pursuant to this section orally, in person or by electronic means, and the judge of a circuit court, general district court, or juvenile and domestic relations district court or a magistrate may issue an oral emergency protective order. An oral emergency protective order issued pursuant to this section shall be reduced to writing, by the law-enforcement officer requesting the order or the magistrate, on a preprinted form approved and provided by the Supreme Court of Virginia. The completed form shall include a statement of the grounds for the order asserted by the officer or the allegedly stalked person.
E. As soon as practicable after receipt of the order by a local law-enforcement
agency for service, the agency shall enter the name of the person subject to
the order and other appropriate information required by the Department of State
Police into the Virginia crime criminal information
network system established and maintained by the Department pursuant to Chapter
2 (§ 52-12 et seq.) of Title 52. A copy of an emergency protective order
issued pursuant to this section shall be served upon the respondent as soon as
possible, and upon service, the agency making service shall enter the date and
time of service into the Virginia crime criminal
information network system. One copy of the order shall be given to the
allegedly stalked person when it is issued. The original copy shall
be forwarded for verification to verified by the judge or
magistrate who issued the order and then filed with the clerk of the
general appropriate district court within five business
days of the issuance of the order. If the order is later dissolved or modified,
a copy of the dissolution or modification order shall also be attested,
forwarded and entered in the system as described above. Upon request, the clerk
shall provide the allegedly stalked person with information regarding the date
and time of service.
F. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
G. As used in this section, a "law-enforcement officer" means any (i) person who is a full-time or part-time employee of a police department or sheriff's office which is part of or administered by the Commonwealth or any political subdivision thereof and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth and (ii) member of an auxiliary police force established pursuant to subsection B of § 15.2-1731. Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office.
H. As used in this section, "copy" includes a facsimile copy.
H. I. No fee shall be charged for filing or serving any
petition pursuant to this section.
§ 19.2-152.9. Preliminary protective orders in cases of stalking.
A. Upon the filing of a petition alleging that (i) the petitioner is or has been, within a reasonable period of time, subjected to stalking and (ii) a warrant has been issued for the arrest of the alleged stalker, the court may issue a preliminary protective order against the alleged stalker in order to protect the health and safety of the petitioner or any family or household member of the petitioner. The order may be issued in an ex parte proceeding upon good cause shown when the petition is supported by an affidavit or sworn testimony before the judge or intake officer. Immediate and present danger of stalking or evidence sufficient to establish probable cause that stalking has recently occurred shall constitute good cause.
A preliminary protective order may include any one or more of the following conditions to be imposed on the respondent:
1. Prohibiting acts of stalking in violation of § 18.2-60.3;
2. Prohibiting such other contacts by the respondent with the petitioner or the petitioner's family or household members as the court deems necessary for the health and safety of such persons; and
3. Such other conditions as the court deems necessary to prevent further acts of stalking, communication or other contact by the respondent.
B. As soon as practicable after receipt of the order by a local law-enforcement
agency for service, the agency shall enter the name of the person subject to
the order and other appropriate information required by the Department of State
Police into the Virginia crime criminal information
network system established and maintained by the Department pursuant to Chapter
2 (§ 52-12 et seq.) of Title 52. Where feasible and practical, the
court may transfer information electronically to the Virginia criminal
information network system. A copy of a preliminary protective order
shall be served as soon as possible on the alleged stalker in person as
provided in § 16.1-264, and upon service, the agency making service shall
enter the date and time of service into the Virginia crime
criminal information network system. The preliminary order shall
specify a date for the full hearing. The hearing shall be held within fifteen
days of the issuance of the preliminary order. Upon request after the order is
issued, the clerk shall provide the petitioner with a copy of the order and
information regarding the date and time of service. The order shall further
specify that the person served either party may at any
time file a motion with the court requesting a hearing to dissolve or modify
the order. The hearing on the motion shall be given precedence on the docket of
the court.
Upon receipt of the return of service or other proof of service pursuant to
subsection C of § 16.1-264, the clerk shall forward forthwith
an attested copy of the preliminary protective order to the local police
department or sheriff's office which shall, on the date of receipt, enter into
the Virginia crime criminal information network system
any other information required by the State Police which was not previously
entered. If the order is later dissolved or modified, a copy of the dissolution
or modification order shall also be attested, forwarded and entered into the
Virginia crime criminal information network system as
described above.
C. The preliminary order is effective upon personal service on the alleged stalker. Except as otherwise provided in § 16.1-253.2, a violation of the order shall constitute contempt of court.
D. At a full hearing on the petition, the court may issue a protective order pursuant to § 19.2-152.10 if the court finds that the petitioner has proven the allegation of stalking by a preponderance of the evidence.
E. No fees shall be charged for filing or serving petitions pursuant to this section.
F. As used in this section, "copy" includes a facsimile copy.
§ 19.2-152.10. Protective order in cases of stalking.
A. The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a warrant for a violation of § 18.2-60.3, (ii) a hearing held pursuant to subsection D of § 19.2-152.9, or (iii) a conviction for a violation of § 18.2-60.3. A protective order issued under this section may include any one or more of the following conditions to be imposed on the respondent:
1. Prohibiting further acts of stalking in violation of § 18.2-60.3;
2. Prohibiting such contacts by the respondent with the petitioner or family or household members of the petitioner as the court deems necessary for the health or safety of such persons;
3. Any other relief necessary to prevent further acts of stalking, communication or other contact by the respondent.
B. The protective order may be issued for a specified period; however, unless
otherwise authorized by law, a protective order may not be issued under this
section for a period longer than two years. A copy of the protective order
shall be served on the respondent and provided to the petitioner as soon as
possible. The clerk shall forward forthwith an attested copy of the
order to the local police department or sheriff's office which shall, on the
date of receipt, enter the name of the person subject to the order and other
appropriate information required by the Department of State Police into the
Virginia crime criminal information network system
established and maintained by the Department pursuant to Chapter 2 (§
52-12 et seq.) of Title 52. Where feasible and practical, the court may
transfer information electronically to the Virginia criminal information
network system. If the order is later dissolved or modified, a copy of
the dissolution or modification order shall also be attested, forwarded and
entered into the system as described above.
C. Except as otherwise provided, a violation of a protective order issued under this section shall constitute contempt of court.
D. The court may assess costs and attorneys' fees against either party regardless of whether an order of protection has been issued as a result of a full hearing.
E. Any judgment, order or decree, whether permanent or temporary, issued by a
court of appropriate jurisdiction in another state, the United States or any of
its territories, possessions or Commonwealths, the District of Columbia or by
any tribal court of appropriate jurisdiction for the purpose of preventing
violent or threatening acts or harassment against or contact or communication
with or physical proximity to another person, including any of the conditions
specified in subsection A, shall be accorded full faith and credit and enforced
in the Commonwealth as if it were an order of the Commonwealth, provided
reasonable notice and opportunity to be heard were given by the issuing
jurisdiction to the person against whom the order is sought to be enforced
sufficient to protect such person's due process rights and consistent with
federal law. A person entitled to protection under such a foreign order may
file the order in any appropriate district court by filing with the court, an
attested or exemplified copy of the order. Upon such a filing, the clerk shall
forward forthwith an attested copy of the order to the local police department
or sheriff's office which shall, on the date of receipt, enter the name of the
person subject to the order and other appropriate information required by the
Department of State Police into the Virginia crime
criminal information network system established and maintained by the
Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52.
Upon inquiry by any law-enforcement agency of the Commonwealth, the clerk shall make a copy available of any foreign order filed with that court. A law-enforcement officer may, in the performance of his duties, rely upon a copy of a foreign protective order or other suitable evidence which has been provided to him by any source and may also rely upon the statement of any person protected by the order that the order remains in effect.
F. Either party may at any time file a written motion with the court requesting a hearing to dissolve or modify the order. Proceedings to modify or dissolve a protective order shall be given precedence on the docket of the court.
G. No fees shall be charged for filing or serving petitions pursuant to this section.
H. As used in this section, "copy" includes a facsimile copy.