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2021 SESSION

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Senate Committee on Judiciary

Chair: John S. Edwards

Clerk: John Garrett, David Hessler
Staff: Kristen Walsh, C. Quagliato
Date of Meeting: February 1, 2021
Time and Place: 8 AM West Comm. Rm Science Museum Register to speak @ GA website
https://virginia-senate.granicus.com/ViewPublisher.php?view_id=3

S.B. 1105

Patron: Stanley


Post-conviction relief; previously admitted scientific evidence. Provides that a person who was convicted of certain offenses, upon a plea of not guilty or an Alford plea, or who was adjudicated delinquent, upon a plea of not guilty or an Alford plea, by a circuit court of an offense that would be a covered offense if committed by an adult may petition the Court of Appeals to have his conviction vacated. The petition shall allege (i) the covered offense for which the petitioner was convicted or adjudicated delinquent; (ii) that the petitioner did not commit the covered offense for which the petitioner was convicted or adjudicated delinquent, nor engage in conduct that would support a conviction for a lesser offense or any other crime arising from, or reasonably connected to, the facts supporting the indictment or information upon which he was convicted or adjudicated delinquent; (iii) an exact description of the forensic scientific evidence and its relevance in demonstrating that the petitioner did not commit the covered offense; (iv) specific facts indicating that relevant forensic scientific evidence was not available or could not have been obtained in the exercise of diligence before the expiration of 21 days following entry of the final order of conviction or adjudication of delinquency or that discredited forensic scientific evidence was admitted at the petitioner's trial or adjudication of delinquency; and (v) that the admission of the discredited forensic scientific evidence or the absence of the newly available forensic scientific evidence was not harmless. The bill provides that if the court finds by clear and convincing evidence that the admission of the discredited forensic scientific evidence or the absence of the newly available forensic scientific evidence was not harmless, the court may grant the petition and vacate the petitioner's conviction, subject to retrial in the discretion of the Commonwealth. The bill has a delayed effective date of July 1, 2022, and an expiration date of July 1, 2026.

S.B. 1107

Patron: Stanley

Medical malpractice; limitation on recovery. Eliminates the cap on the recovery in actions against health care providers for medical malpractice where the act or acts of malpractice occurred on or after July 1, 2021.

S.B. 1113

Patron: Spruill

Communicating threats of death or bodily injury to a person at any place of assembly, any building or other structure, or any means of transportation; penalties. Provides that any person 18 years of age or older who either (i) communicates to another by any means any threat to bomb, burn, destroy, shoot, stab, or in any other manner cause death or bodily injury to persons at any place of assembly, any building or other structure, or any means of mass transportation or (ii) communicates to another by any means information, knowing the same to be false, about any plan to bomb, burn, destroy, shoot, stab, or in any other manner cause death or bodily injury to persons at any place of assembly, any building or other structure, or any means of mass transportation and makes either such communication with the intent to (a) intimidate a civilian population at large, (b) influence the conduct or activities of the government of the United States or any state or local government through intimidation, (c) compel the emergency evacuation of any place of assembly, any building or other structure, or any means of mass transportation through intimidation, or (d) place any person in reasonable apprehension of death or bodily injury through intimidation is guilty of a Class 5 felony. The bill provides that any person younger than 18 years of age who commits such offense is guilty of a Class 6 felony.

S.B. 1129

Patron: Reeves

Veterans service organizations; paramilitary activities. Exempts members of a Congressionally chartered or officially recognized by the U.S. Department of Veterans Affairs veterans service organization when such member is participating in a public ceremony on behalf of such veterans service organization from the crimes of brandishing a firearm and unlawful paramilitary activity.

S.B. 1230

Patron: Chase

Criminal cases; transfer to general district court. Provides that any criminal proceeding pending in a juvenile and domestic relations district court may be transferred to the general district court in the same territorial jurisdiction for disposition, provided that the offender and the victim are both age 18 or older at the time of the offense, upon the petition of a victim and with consent of a juvenile and domestic relations district court judge.

S.B. 1231

Patron: Chase

Filing an order of disposition from a criminal case in general district courts. Provides that any adult criminal disposition for a misdemeanor or felony in a juvenile and domestic relations district court may be submitted to the general district court of the same territorial jurisdiction to be filed as a general district court record upon a petition filed by the victim of the offense and with the consent of the juvenile and domestic relations district court.

S.B. 1234

Patron: Petersen

Attorneys; granting certificates without examination. Provides that the Supreme Court of Virginia shall have the discretion to grant a certificate to practice law without examination to an attorney who has (i) been admitted to practice law before the court of last resort of any state or territory of the United States or the District of Columbia for at least two years; (ii) made at least six pro hac vice appearances in a court in the Commonwealth, whether state or federal; and (iii) obtained a juris doctor or LL.M. degree from an accredited law school in the United States that was approved by the American Bar Association.

S.B. 1264

Patron: Morrissey

Expungement of emergency and preliminary protective orders. Provides that a person against whom an emergency or preliminary protective order has been issued may petition to have police and court records relating to such order expunged if the order expires, is dissolved by the issuing court, or if a hearing for the issuance of a permanent protective order is scheduled or held and such permanent protective order is subsequently not issued.

S.B. 1283

Patron: Morrissey

Automatic expungement of criminal records. Establishes a process for the automatic expungement of criminal records for misdemeanors, certain felony convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed. The bill also provides a process for the automatic expungement of criminal records for charges arising from mistaken identity or the unauthorized use of identifying information. The bill has staggered delayed effective dates in order to develop systems for implementing the provisions of the bill.

S.B. 1294

Patron: DeSteph

Expungement of police and court records; fees. Provides that the fee for filing a petition for expungement is $25. The bill also eliminates the provision that requires the clerk of the court to refund a petitioner any filing costs paid if such petitioner's expungement petition is granted.

S.B. 1306

Patron: Morrissey

Assault and battery; penalty. Eliminates the mandatory minimum term of confinement of six months for an assault and battery committed against a judge, magistrate, law-enforcement officer, correctional officer, person directly involved in the care, treatment, or supervision of inmates, firefighter or volunteer firefighter, or emergency medical services personnel. The bill removes simple assault from enhanced punishment and provides that the enhanced punishment applies for assault and battery only when it results in bodily injury. The bill also provides that a jury or the court may find any person charged with such offense where the degree of culpability is slight, due to diminished physical or mental capacity or an autism spectrum disorder, not guilty of such offense but guilty of a simple assault or assault and battery, punishable as a Class 1 misdemeanor. The bill also provides that before any arrest, indictment, or service of a petition in the case of a juvenile is made for an alleged assault and battery against a law-enforcement officer, (i) such alleged assault and battery shall be investigated by another law-enforcement officer who was not the subject of such alleged assault and battery and (ii) the arrest, indictment, or service of a petition shall be approved by the attorney for the Commonwealth.

S.B. 1323

Patron: Dunnavant

Worker classification; independent contractors. Provides that in a proceeding involving allegations of worker misclassification an individual or business is not considered an employee with respect to a hiring party if the person qualifies as an independent contractor relative to the hiring party under the common law right-of control test as established by the Internal Revenue Service Revenue Ruling 87-41, by an applicable determination of the Internal Revenue Service, or if (i) the individual or business signs a written contract with the hiring party stating that the individual or business is self-employed or is being engaged as an independent contractor and containing certain acknowledgments, (ii) the individual or business has the right to control the manner and means by which the final result of the work is to be accomplished, and (iii) four or more additional criteria provided for in the bill are satisfied. The bill also provides that a hiring party alleging that a worker misclassification claim is frivolous or improper may file a motion to dismiss such claim. The bill provides that a contract or written agreement expressly stating that a claimant is not considered an employee is considered as prima facie evidence of a violation of frivolous pleading provisions.

S.B. 1339

Patron: Surovell


Expungement and sealing of police and court records; Expungement Fee Fund created; protection of public record information; penalties. Establishes a process for the sealing of police and court records, defined in the bill, of criminal records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed. The bill also allows a person to petition for the expungement of the police and court records relating to convictions of marijuana possession, underage alcohol or tobacco possession, and using a false ID to obtain alcohol and for deferred disposition dismissals for possession of controlled substances or marijuana, underage alcohol or tobacco possession, and using a false ID to obtain alcohol.

The bill creates the Expungement Fee Fund, which is funded by all collected expungement fees. The bill provides that expungement fees shall not be refundable, but persons who are indigent or represented by court-appointed counsel shall not be required to pay such fees. The Fund is administered by the Executive Secretary of the Supreme Court and used to fund the costs of court-appointed counsel.

The bill also requires a business that collects and sells or licenses the public record information of a consumer to implement security practices to protect the accuracy of a consumer's public record information, obtain express consent of a parent of a minor before selling the public record information of such minor, provide access to consumers to their own public record information that is held by the entity, refrain from maintaining or selling information that it knows to be inaccurate, and provide a means by which a consumer can opt out of the sale of his public record information. The bill provides that a violation could result in a civil penalty of up to $7,500 or damages to be awarded to a consumer. The bill also provides for the award of attorney fees and costs.

With the exception of the provisions regarding the Expungement Fee Fund, and the funding provisions of such fund, the bill has delayed effective date of July 1, 2022. The bill directs the Department of Criminal Justice Services to adopt emergency regulations to implement the provisions of the bill.

S.B. 1340

Patron: Hashmi

Statute of limitations to collect medical debt. Provides that the statute of limitations for an action on any contract, written or unwritten, to collect medical debt, including actions brought by the Commonwealth, is three years.

S.B. 1372

Patron: Lucas

Automatic expungement of criminal records. Establishes a process for the automatic expungement, defined in the bill, of criminal records for certain convictions, deferred dispositions, and acquittals and for offenses that have been nolle prossed or otherwise dismissed. The bill also provides a process for the automatic expungement of criminal records for charges arising from mistaken identity or the unauthorized use of identifying information. The bill has staggered delayed effective dates in order to develop systems for implementing the provisions of the bill.

S.B. 1406

Patrons: Ebbin, Lucas

Marijuana; legalization of simple possession; penalties. Eliminates criminal penalties for possession of marijuana for persons who are 21 years of age or older. The bill also modifies several other criminal penalties related to marijuana and provides for an automatic expungement process for those convicted of certain marijuana-related crimes. The bill establishes a regulatory scheme for the regulation of marijuana cultivation facilities, marijuana manufacturing facilities, marijuana testing facilities, marijuana wholesalers, and retail marijuana stores by the Virginia Alcoholic Beverage Control Authority, renamed as the Virginia Alcoholic Beverage and Cannabis Control Authority. The bill imposes a tax on retail marijuana, retail marijuana products, and marijuana paraphernalia sold by a retail marijuana store, as well as non-retail marijuana and non-retail marijuana products at a rate of 21 percent and provides that localities may by ordinance levy a three percent tax on any such marijuana or marijuana products. The bill provides that net profits attributable to regulatory activities of the Authority's Board of Directors pursuant to this bill shall be appropriated as follows: (i) 40 percent to pre-kindergarten programs for at-risk three and four year olds, (ii) 30 percent to the Cannabis Equity Reinvestment Fund, established in the bill, (iii) 25 percent to substance use disorder prevention and treatment programs, and (iv) five percent to public health programs. The bill creates the Cannabis Control Advisory Board, the Cannabis Equity Reinvestment Board, and the Cannabis Public Health Advisory Council. The bill has a delayed effective date of January 1, 2023, with provisions for the Authority's Board of Directors to promulgate regulations for the implementation of the bill and for implementation of the automatic expungement process to begin in due course. In addition, the bill establishes three work groups to begin their efforts in due course: one focused on public health and safety issues, one focused on providing resources for teachers in elementary and secondary schools, and one focused on college-aged individuals. See S. B. 1406 Rehabilitation Substitute PDF text:

https://lis.virginia.gov/000/cannabisbillsub.pdf

S.B. 1415

Patron: Stanley

Violations of protective orders; preliminary child protective order. Changes the punishment and sentencing requirements for a violation of a preliminary child protective order so that the maximum penalty is a Class 1 misdemeanor and the court is no longer required to enter a permanent family abuse protective order (i.e., a protective order with a maximum duration of two years) upon a conviction of a violation of a preliminary child protective order. The bill provides that a violation of a preliminary child protective order is punishable as contempt of court; however, if the violation involves an act or acts of commission or omission that endanger the child's life, health, or normal development or result in bodily injury to the child, it is punishable as a Class 1 misdemeanor. Under current law, violations of preliminary child protective orders constitute contempt of court and are also subject to the same penalties as violations of preliminary, emergency, and permanent family abuse protective orders, including enhanced penalties for certain violations. This bill is a recommendation of the Virginia Criminal Justice Conference.

S.B. 1426

Patron: Stanley


Orders of restitution; enforcement. Provides that an order of restitution shall be docketed in the name of the Commonwealth, or a locality if applicable, on behalf of a victim, unless the victim named in the order of restitution requests in writing that the order be docketed in the name of the victim. The bill provides that an order of restitution docketed in the name of the victim shall be enforced by the victim as a civil judgment. The bill also states that the clerk of such court shall record and disburse restitution payments in accordance with orders of restitution or judgments for restitution docketed in the name of the Commonwealth or a locality. The bill provides that at any time before a judgment for restitution docketed in the name of the Commonwealth or a locality is satisfied, the court shall, at the written request of the victim, order the circuit court clerk to execute and docket an assignment of the judgment to the victim and remove from its automated financial system the amount of unpaid restitution. Similarly, the bill provides that if a judge of the district court orders the circuit court clerk to execute and docket an assignment of the judgment to the victim, the district court clerk shall remove from its automated financial system the amount of unpaid restitution. Additionally, the bill states that if the victim requests that the order of restitution be docketed in the name of the victim or that a judgment for restitution previously docketed in the name of the Commonwealth or a locality be assigned to the victim, the victim shall provide to the court an address where the defendant can mail payment for the amount due and such address shall not be confidential.

S.B. 1440

Patron: Surovell

Civil action for unlawful acts of force or failure to intervene by a law-enforcement officer or correctional officer. Creates a civil action for the use of unlawful acts of force, including deadly force, or failure to intervene as required by law, by a law-enforcement officer or correctional officer while performing his duties for a public entity or private police department. The bill also provides that a public entity or private police department employing such officer is liable for any injuries sustained by the injured party as a result of the officer's actions if they occurred in the ordinary course of the employer's business. Sovereign immunity would not apply to such claims.

S.B. 1446

Patron: Surovell

Practice of medicine and other healing arts; provision of litigation assistance. Requires practitioners of medicine and other healing arts to provide litigation assistance to treated patients and their attorneys. Such litigation assistance includes providing a legal consult fee schedule upon request, scheduling and participating in meetings with a treated patient's attorney upon request, participating in trial or de bene esse depositions as needed, and providing a written estimate of the cost of the patient's medical services related to the litigation.

S.B. 1465

Patron: Reeves

Illegal gambling; skill games; civil penalty; enforcement by localities and Attorney General. Provides that any person who conducts, finances, manages, supervises, directs, or owns a gambling device that is located in an unregulated location is subject to a civil penalty of $25,000. The bill provides that the Attorney General, an attorney for the Commonwealth, or the attorney for any locality may cause an action in equity to be brought in the name of the Commonwealth or of the locality, as applicable, to enjoin the operation of a gambling device in violation of this section and may request attachment against all such devices and any moneys within such devices. The bill provides that any civil penalties brought in the name of the Commonwealth shall be paid into the Literary Fund and that any civil penalties brought in the name of a locality shall be paid into the general fund of the locality.

S.B. 1475

Patron: Stuart

Execution of search warrants. Provides that a search warrant may be executed at any time when prior to the issuance of the search warrant, a law enforcement officer has lawfully entered and secured the place to be searched and subsequently have remained at such place continuously or when the item to be searched already is in law enforcement possession or control. The bill also provides that any evidence obtained from a search warrant will not be excluded unless the search warrant is executed in bad faith or if it is proven that the rights of the defendant were substantially prejudiced. The bill also exempts search warrants served by means of electronic or telecommunication transmission from the no knock search warrant provisions.