§ 19.2-1. Repealing clause.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(1975, c. 495.)

Editor's note. - At its special session of 1971 the General Assembly directed the Code Commission to make a thorough study of the criminal laws of the State and make recommendations for the review and recodification of all statutes of the State relating to crime and criminal procedure. In December of 1974 the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 19.2, which was published as House Document 20 of the 1975 session. This report contains revisor's notes and other explanatory matter, which, while valuable, are too lengthy for inclusion here. The Commission's draft of the revision of Title 19.2, as amended by the General Assembly, became Chapter 495 of the Acts of 1975. Effective October 1, 1975, it repeals Title 19.1 of the Code and enacts in lieu thereof a new Title 19.2. In addition to its revision by Chapter 495, former Title 19.1 was also amended by certain other acts passed at the 1975 session. As required by former statute (see § 30-152), the Code Commission has incorporated these amendments into new Title 19.2.

The cases prior to 1975 cited in the notes under the various sections of this title were decided under corresponding provisions of former Title 19.1.

Law review. - For survey of the Virginia law on criminal law for the year 1961-1962, see 48 Va. L. Rev. 1342 (1962); for the year 1963-1964, see 50 Va. L. Rev. 1287 (1964). For survey of Virginia law on criminal law and procedure for the year 1967-1968, see 54 Va. L. Rev. 1579 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1581 (1969). For survey of Virginia law on evidence for the year 1967-1968, see 54 Va. L. Rev. 1611 (1968).

For article, "Criminal Law and Procedure," see 26 U. Rich. L. Rev. 701 (1992).

Research References. - Criminal Constitutional Law (Matthew Bender). Rudstein, Erlinder, and Thomas.

Criminal Defense Techniques (Matthew Bender). Cipes, Bernstein, and Hall.

Criminal Law Deskbook (Matthew Bender). McCloskey and Schoenberg,

United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender). Erickson and George.

§ 19.2-2. Effect of repeal of Title 19.1 and enactment of this title.

The repeal of Title 19.1 effective as of October 1, 1975, shall not affect any act or offense done or committed, or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day. Except as herein otherwise provided, neither the repeal of Title 19.1 nor the enactment of this title shall apply to offenses committed prior to October 1, 1975, and prosecutions for such offenses shall be governed by the prior law, which is continued in effect for that purpose. For the purposes of this section, an offense was committed prior to October 1, 1975, if any of the essential elements of the offense occurred prior thereto.

(1975, c. 495.)

§ 19.2-3. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued before October 1, 1975, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.

(1975, c. 495.)

§ 19.2-3.1. Personal appearance by two-way electronic video and audio communication; standards.

1. Where an appearance is required or permitted before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by (i) personal appearance before the magistrate, intake officer, or judge or (ii) use of two-way electronic video and audio communication. With the consent of the court and all parties, an appearance in a court may be made by two-way electronic video and audio communication for the purpose of (a) entry of a plea of guilty or nolo contendere and the related sentencing of the defendant charged with a misdemeanor or felony, (b) entry of a nolle prosequi or dismissal, or (c) a revocation proceeding pursuant to § 19.2-306 . If two-way electronic video and audio communication is used, a magistrate, intake officer, or judge may exercise all powers conferred by law and all communications and proceedings shall be conducted in the same manner as if the appearance were in person. If two-way electronic video and audio communication is available for use by a district court for the conduct of a hearing to determine bail or to determine representation by counsel, the court shall use such communication in any such proceeding that would otherwise require the transportation of a person from outside the jurisdiction of the court in order to appear in person before the court. Any documents transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge may be transmitted by electronically transmitted facsimile process or other electronic method. The facsimile or other electronically generated document may be served or executed by the officer or person to whom sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures thereon shall be treated as original signatures.
2. Any two-way electronic video and audio communication system used for an appearance shall meet the following standards:
   1. The persons communicating must simultaneously see and speak to one another;
   2. The signal transmission must be live, real time;
   3. The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and
   4. Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.
3. Nothing in this section shall be construed as requiring a locality to purchase a two-way electronic video and audio communication system. Any decision to purchase such a system is at the discretion of the locality.

   (1991, c. 41; 1996, cc. 755, 914; 2006, c. 285; 2009, cc. 94, 623; 2010, c. 800; 2017, c. 669; 2021, Sp. Sess. I, c. 86.)

Cross references. - As to use of telephonic communication systems or electronic video and audio communication systems to conduct hearings, see §§ 16.1-93.1, 16.1-276.3, 17.1-513.2 .

As to the use of two-way electronic video and audio communication system used for an appearance by juvenile before an intake officer, see § 16.1-255.

Editor's note. - Acts 1996, cc. 755 and 914, cls. 7, provide: "[t]hat the provisions of this act shall apply to offenses committed and to records created and proceedings held with respect to those offenses on or after July 1, 1996."

The 2006 amendments. - The 2006 amendment by c. 285 substituted "transmitted between the magistrate, intake officer, or judge and the person appearing before the magistrate, intake officer, or judge" for "filed" in the second sentence of subsection A.

The 2009 amendments. - The 2009 amendments by cc. 94 and 623 are identical, and in subsection A, divided the former second sentence into the second and fourth sentences by deleting "and any" at the end of the second sentence and adding "Any" at the beginning of the fourth sentence, and inserted the third sentence.

The 2010 amendments. - The 2010 amendment by c. 800 inserted "or other electronic method" and "or other electronically generated document" in subsection A.

The 2017 amendments. - The 2017 amendment by c. 669 added subsection C.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 86 effective July 1, 2021, in subsection A, inserted the second sentence and created the second paragraph from the remainder of the subsection.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Appearances, § 11.

§ 19.2-4. References to former sections, articles or chapters of Titles 18.1 and 19.1.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Titles 18.1 and 19.1, as such titles existed prior to October 1, 1975, are transferred in the same or in modified form to a new section, article or chapter of this title or of Title 18.2, and whenever any such former section, article or chapter is given a new number in this title or in Title 18.2, all references to any such former section, article or chapter of Title 19.1 or of Title 18.1 appearing elsewhere in this Code than in this title or in Title 18.2, shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(1975, c. 495.)

§ 19.2-5. Meaning of certain terms.

As used in this title, unless otherwise clearly indicated by the context in which it appears:

"Court" means any court vested with appropriate jurisdiction under the Constitution and laws of the Commonwealth.

"Court not of record" and "district court" shall have the respective meanings assigned to them in Chapter 4.1 (§ 16.1-69.1 et seq.) of Title 16.1.

"Judge" means any judge, associate judge or substitute judge of any court or any magistrate.

(Code 1950, § 19.1-5; 1960, c. 366; 1975, c. 495; 2005, c. 839; 2008, cc. 551, 691.)

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, rewrote this section.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and substituted "judge of any court or any magistrate" for "judge, or magistrate, of any court" in the definition of "Judge."

§ 19.2-6. Appointive power of circuit courts.

Unless otherwise specifically provided, whenever an appointive power is given to the judge of a circuit court, that power shall be exercised by a majority of the judges of the circuit. In case of a tie, such fact shall be communicated to the Chief Justice of the Supreme Court, who shall appoint a circuit judge from another circuit who shall act as a tie breaker. Where the power of appointment is to be exercised by a majority of the judges of the Second Judicial Circuit and such appointment is to a local post, board or commission in Accomack or Northampton County, the resident judge or judges of the County of Accomack or Northampton shall exercise such appointment power as if he or they comprise the majority of the judges of the Circuit.

(1975, c. 495; 1977, c. 288; 1994, c. 407.)

§ 19.2-7. Rewards for arrest of persons convicted of or charged with offenses; rewards for conviction of unknown offenders.

The Governor may offer a reward for apprehending and securing any person convicted of an offense or charged therewith, who shall have escaped from lawful custody or confinement, or for apprehending and securing any person charged with an offense, who, there is reason to fear, cannot be arrested in the common course of proceeding. The Governor may also offer a reward for the detection and conviction of the person guilty of an offense when such offense has been committed but the person guilty thereof is unknown.

Any sheriff, deputy sheriff, sergeant, deputy sergeant or any other officer may claim and receive any reward which may be offered for the arrest and detention of any offender against the criminal laws of this or any other state or nation.

(Code 1950, §§ 19.1-6, 19.1-6.1; 1960, c. 366; 1962, c. 513; 1964, c. 171; 1975, c. 495.)

Cross references. - As to right of police officer to receive rewards, see § 15.2-1710 .

As to authority of localities to offer rewards, see § 15.2-1713 .

As to right of officers enforcing the motor vehicle laws to receive rewards, see § 46.2-218 .

As to right of State Police officers to receive rewards, see § 52-10 .

Law review. - For comment, "Effect of Public Policy upon Reward Offers," see 20 Wash. & Lee L. Rev. 395 (1963).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bounties or Rewards, § 2; 13B M.J. Municipal Corporations, § 80; 15 M.J. Public Officers, § 45; 16 M.J. Sheriffs, § 7.

§ 19.2-8. Limitation of prosecutions.

A prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor, except that a prosecution for petit larceny may be commenced within five years, and for an attempt to produce abortion, within two years after commission of the offense.

A prosecution for any misdemeanor violation of § 54.1-3904 shall be commenced within two years of the discovery of the offense.

A prosecution for violation of laws governing the placement of children for adoption without a license pursuant to § 63.2-1701 shall be commenced within one year from the date of the filing of the petition for adoption.

A prosecution for making a false statement or representation of a material fact knowing it to be false or knowingly failing to disclose a material fact, to obtain or increase any benefit or other payment under the Virginia Unemployment Compensation Act (§ 60.2-100 et seq.) shall be commenced within three years next after the commission of the offense.

A prosecution for any violation of § 10.1-1320 , 62.1-44.32 (b) , 62.1-194.1 , or Article 11 (§ 62.1-44.34:14 et seq.) of Chapter 3.1 of Title 62.1 that involves the discharge, dumping or emission of any toxic substance as defined in § 32.1-239 shall be commenced within three years next after the commission of the offense.

Prosecution of Building Code violations under § 36-106 shall commence within one year of discovery of the offense by the building official, provided that such discovery occurs within two years of the date of initial occupancy or use after construction of the building or structure, or the issuance of a certificate of use and occupancy for the building or structure, whichever is later. However, prosecutions under § 36-106 relating to the maintenance of existing buildings or structures as contained in the Uniform Statewide Building Code shall commence within one year of the issuance of a notice of violation for the offense by the building official.

Prosecution of any misdemeanor violation of § 54.1-111 shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.

Prosecution of any misdemeanor violation of any professional licensure requirement imposed by a locality shall commence within one year of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense.

Prosecution of nonfelonious offenses which constitute malfeasance in office shall commence within two years next after the commission of the offense.

Prosecution for a violation for which a penalty is provided for by § 55.1-1989 shall commence within three years next after the commission of the offense.

Prosecution of illegal sales or purchases of wild birds, wild animals and freshwater fish under § 29.1-553 shall commence within three years after commission of the offense.

Prosecution of violations under Title 58.1 for offenses involving false or fraudulent statements, documents or returns, or for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof, or for the offense of willfully failing to pay any tax, or willfully failing to make any return at the time or times required by law or regulations shall commence within three years next after the commission of the offense, unless a longer period is otherwise prescribed.

Prosecution of violations of subsection A or B of § 3.2-6570 shall commence within five years of the commission of the offense, except violations regarding agricultural animals shall commence within one year of the commission of the offense.

A prosecution for a violation of § 18.2-386.1 shall be commenced within five years of the commission of the offense.

A prosecution for any violation of the Campaign Finance Disclosure Act, Chapter 9.3 (§ 24.2-945 et seq.) of Title 24.2, shall commence within one year of the discovery of the offense but in no case more than three years after the date of the commission of the offense.

A prosecution of a crime that is punishable as a misdemeanor pursuant to the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) or pursuant to § 18.2-186.3 for identity theft shall be commenced before the earlier of (i) five years after the commission of the last act in the course of conduct constituting a violation of the article or (ii) one year after the existence of the illegal act and the identity of the offender are discovered by the Commonwealth, by the owner, or by anyone else who is damaged by such violation.

A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority, unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority.

A prosecution for a violation of § 18.2-260.1 shall be commenced within three years of the commission of the offense.

Nothing in this section shall be construed to apply to any person fleeing from justice or concealing himself within or without the Commonwealth to avoid arrest or be construed to limit the time within which any prosecution may be commenced for desertion of a spouse or child or for neglect or refusal or failure to provide for the support and maintenance of a spouse or child.

(Code 1950, § 19.1-8; 1960, c. 366; 1974, c. 466; 1975, c. 495; 1976, cc. 114, 620; 1977, c. 108; 1978, c. 730; 1979, c. 243; 1980, c. 496; 1981, c. 31; 1984, c. 601; 1987, c. 488; 1990, cc. 575, 976; 1992, cc. 177, 435, 650; 1996, c. 484; 1998, c. 566; 1999, c. 620; 2005, cc. 746, 761, 827; 2006, cc. 193, 787, 892; 2008, c. 769; 2011, cc. 118, 143, 494, 553; 2014, c. 169; 2015, c. 176; 2016, cc. 233, 253; 2017, c. 667; 2018, c. 549; 2020, cc. 277, 1122.)

Editor's note. - Acts 1976, c. 620, cl. 3 provides: "That the amended period of limitation for prosecutions provided for by this act shall apply only to offenses committed subsequent to the effective date of this act [April 9, 1976]."

Effective October 1, 2008, the reference to "subsection A or B of § 3.1-796.122" was changed to "subsection A or B of § 3.2-6570" to conform to Acts 2008, c. 860.

Acts 2005, c. 746, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2005, cc. 761 and 827, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2016, cc. 233 and 253, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 665 of the Acts of Assembly of 2015 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2018, c. 549, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 836 of the Acts of Assembly of 2017 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "Prosecution for a violation for which a penalty is provided for by § 55.1-1989 " for "Prosecution of any violation of § 55-79.87, 55-79.88, 55-79.89, 55-79.90, 55-79.93, 55-79.94, 55-79.95, 55-79.103, or any rule adopted under or order issued pursuant to § 55-79.98."

Acts 2020, cc. 277 and 1122, in cl. 2 provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "or B" in the tenth paragraph.

The 2005 amendments. - The 2005 amendments by cc. 746, 761 and 827 are identical, and substituted "that" for "which" preceding "involves the discharge" in the fourth paragraph; inserted the next to the last paragraph; substituted "the" for "this" preceding "Commonwealth" in the last paragraph; and made minor stylistic changes.

The 2006 amendments. - The 2006 amendment by c. 193 added the sixth paragraph.

The 2006 amendments by cc. 787 and 892 are identical, and substituted "Chapter 9.3 ( § 24.2-945 et seq.) of Title 24.2" for "( § 24.2-900 et seq.)" in the thirteenth paragraph.

The 2008 amendments. - The 2008 amendment by c. 769 inserted "or pursuant to § 18.2-186.3 for identity theft" in the fourteenth paragraph.

The 2011 amendments. - The 2011 amendments by cc. 118 and 143 are identical, and in the sixth paragraph, deleted "by the owner or" following "discovery of the offense" in the first sentence, and added "by the building official" in the last sentence.

The 2011 amendment by c. 494 added the eighth paragraph.

The 2011 amendment by c. 553 added the second paragraph.

The 2014 amendments. - The 2014 amendment by c. 169 added the second to last paragraph.

The 2015 amendments. - The 2015 amendment by c. 176 substituted "issuance of a notice of violation for" for "discovery of" in the sixth paragraph.

The 2016 amendments. - The 2016 amendments by cc. 233 and 253 are identical, and inserted "A prosecution of a misdemeanor under § 18.2-64.2 , 18.2-67.4 , 18.2-67.4:1 , 18.2-67.4:2 , 18.2-67.5 , or 18.2-370.6 where the victim is a minor at the time of the offense shall be commenced no later than one year after the victim reaches majority."

The 2017 amendments. - The 2017 amendment by c. 667 inserted "18.2-51.7" in the second-from-last paragraph.

The 2018 amendments. - The 2018 amendment by c. 549 deleted the reference to "18.2-51.7" in the seventeenth paragraph.

The 2020 amendments. - The 2020 amendments by cc. 277 and 1122 are identical, and added "unless the alleged offender of such offense was an adult and more than three years older than the victim at the time of the offense, in which instance such prosecution shall be commenced no later than five years after the victim reaches majority" in the third from last paragraph.

Law review. - For a discussion of statutory changes in child placement by the 1978 session of the General Assembly, see 12 U. Rich. L. Rev. 739 (1978).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adultery, Fornication and Lewdness, § 5; 2A M.J. Assault and Battery, § 10; 3A M.J. Banks and Banking, § 89; 12A M.J. Larceny, § 32; 12A M.J. Limitation of Actions, §§ 1, 21.

§ 19.2-8.1. Prosecution for murder or manslaughter; passage of time not a limitation.

A prosecution for murder or manslaughter, whether at common law or under the Code of Virginia, may be instituted regardless of the time elapsed between the act or omission causing the death of the victim and the death of the victim.

(2009, c. 278.)

§ 19.2-9. Prosecution of certain criminal cases removed from state to federal courts; costs.

When any person indicted in the courts of this Commonwealth for a violation of its laws, has his case removed to the district court of the United States under 28 U.S.C. § 1442, it shall be the duty of the attorney for the Commonwealth for the county or city in which any such indictment is found to prosecute any such case in the United States district court to which the same shall be so removed, and for his services in this behalf he shall be paid a fee of $100 for each case tried by him in such United States district court, and mileage at the rate now allowed by law to the members of the General Assembly for all necessary travel in going to and returning from such court, to be paid on his account when approved by the Attorney General.

A per diem of one dollar and fifty cents for each day of actual attendance upon such United States district court and mileage at a rate as provided by law for every mile of necessary travel in going to and returning from such court shall be paid out of the state treasury to each witness for the Commonwealth in every such case upon accounts therefor against the Commonwealth, certified by the attorney for the Commonwealth prosecuting such case and approved by the Attorney General.

It shall not be the duty of the Attorney General to appear for the Commonwealth in such cases unless he can do so without interfering with the efficient discharge of the duties imposed upon him by law; but he may appear with the attorney for the Commonwealth prosecuting such case in any case when the interests of the Commonwealth may in his judgment require his presence.

The Comptroller shall from time to time draw his warrants upon the state treasury in favor of the parties entitled to be paid the above compensation and expenses, or their assigns, upon bills certified and approved as above prescribed.

(Code 1950, § 19.1-14; 1960, c. 366; 1975, c. 495.)

§ 19.2-9.1. Written notice required for complaining witness who is requested to take polygraph test.

1. For offenses not specified in subsection B, if a complaining witness is requested to submit to a polygraph examination during the course of a criminal investigation, such witness shall be informed in writing prior to the examination that (i) the examination is voluntary, (ii) the results thereof are inadmissible as evidence and (iii) the agreement of the complaining witness to submit thereto shall not be the sole condition for initiating or continuing the criminal investigation.
2. No law-enforcement officer, attorney for the Commonwealth, or other government official shall ask or require a victim of an alleged sex offense to submit to a polygraph examination or other truth-telling device as a condition for proceeding with the investigation of such an offense. If a victim is requested to submit to a polygraph examination during the course of a criminal investigation, such victim shall be informed in writing of the provisions of subsection A and that the refusal of a victim to submit to such an examination shall not prevent the investigation, charging, or prosecution of the offense.
3. A "sex offense," for the purposes of this section, shall mean any offense set forth in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2. (1994, c. 336; 2008, cc. 512, 748.)

Cross references. - As to response policies and procedures in sexual assault cases, see § 9.1-1301 .

The 2008 amendments. - The 2008 amendments by cc. 512 and 748 are nearly identical, and designated the existing provisions of this section as subsection A; in subsection A, substituted "For offenses not specified in subsection B, if" for "If" at the beginning; and added subsections B and C.

§ 19.2-10. Outlawry abolished.

No proceeding of outlawry shall hereafter be instituted or prosecuted.

(Code 1950, § 19.1-15; 1960, c. 366; 1975, c. 495.)

§ 19.2-10.1. Subpoena duces tecum for obtaining records concerning banking and credit cards.

1. A financial institution as defined in § 6.2-604 , money transmitter as defined in § 6.2-1900 , or commercial businesses providing credit history or credit reports; or an issuer as defined in § 6.2-424 shall disclose a record or other information pertaining to a customer, to a law-enforcement officer pursuant to a subpoena duces tecum issued pursuant to this section.
   1. In order to obtain such records, the law-enforcement official shall provide a statement of the facts documenting the reasons that the records or other information sought are relevant to a legitimate law-enforcement inquiry, relating to a named person or persons, to the attorney for the Commonwealth. A court shall issue a subpoena duces tecum upon motion of the Commonwealth only if the court finds that there is probable cause to believe that a crime has been committed and to believe the records sought or other information sought, including electronic data and electronic communications, are relevant to a legitimate law-enforcement inquiry into that offense. The court may issue a subpoena duces tecum under this section regardless of whether any criminal charges have been filed.
   2. A court issuing an order pursuant to this section, on a motion made promptly by the financial institution or credit card issuer, or enterprise may quash or modify the subpoena duces tecum, if the information or records requested are unusually voluminous in nature or compliance with such subpoena duces tecum would otherwise cause an undue burden on such provider.
2. No cause of action shall lie in any court against a financial institution or credit card issuer, or enterprise, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a subpoena duces tecum under this section.
3. Upon issuance of a subpoena duces tecum under this section, the statement shall be temporarily sealed by the court upon application of the attorney for the Commonwealth for good cause shown in an ex parte proceeding. Any individual arrested and claiming to be aggrieved by the order may move the court for the unsealing of the statement, and the burden of proof with respect to continued sealing shall be upon the Commonwealth.
4. Any and all records received by law enforcement pursuant to this section shall be utilized only for a reasonable amount of time and only for a legitimate law-enforcement purpose. Upon the completion of the investigation the records shall be submitted to the court by the attorney for the Commonwealth along with a proposed order requiring the records to be sealed. Upon entry of such order, the court shall seal the records in accordance with the requirements contained in subsection C.

   (2003, cc. 223, 541, 549; 2004, cc. 883, 996; 2010, cc. 702, 794.)

Editor's note. - Acts 2003, cc. 541 and 549, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2004, cc. 883 and 995, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by cc. 883 and 996 are identical, and inserted "money transmitter as defined in § 6.1-370, or commercial businesses providing credit history or credit reports" in subsection A; and inserted "or enterprise" following "card issuer" in subdivision A 2 and subsection B.

The 2010 amendments. - The 2010 amendment by c. 702 inserted "including electronic data and electronic communications" in the second sentence of subdivision A 1.

The 2010 amendment by c. 794, effective October 1, 2010, in subsection A, substituted "6.2-604" for "6.1-125.1," "6.2-1900" for "6.1-370," and "an issuer as defined in § 6.2-424 " for "a credit card issuer as defined in § 11-30 ."

Law review. - For article summarizing published Virginia criminal law decisions between July 1, 2002 and July 1, 2003, see 38 U. Rich. L. Rev. 87 (2003).

Research References. - Virginia Forms (Matthew Bender). No. 7-130. Subpoena Duces Tecum for Financial Records.

§ 19.2-10.2. Administrative subpoena issued for record from provider of electronic communication service or remote computing service.

1. A provider of electronic communication service or remote computing service that is transacting or has transacted any business in the Commonwealth shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications as required by § 19.2-70.3 , to an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section.
   1. In order to obtain such records or other information, the attorney for the Commonwealth or the Attorney General shall certify on the face of the subpoena that there is reason to believe that the records or other information being sought are relevant to a legitimate law-enforcement investigation concerning violations of §§ 18.2-47 , 18.2-48 , 18.2-49 , 18.2-346 , 18.2-346.01 , 18.2-347 , 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-374.1 , and 18.2-374.1 :1, former § 18.2-374.1:2 , and § 18.2-374.3 .
   2. Upon written certification by the attorney for the Commonwealth or the Attorney General that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the subpoena shall include a provision ordering the service provider not to notify or disclose the existence of the subpoena to another person, other than an attorney to obtain legal advice, for a period of 30 days after the date on which the service provider responds to the subpoena.
   3. On a motion made promptly by the electronic communication service or remote computing service provider, a court of competent jurisdiction may quash or modify the administrative subpoena if the records or other information requested are unusually voluminous in nature or if compliance with the subpoena would otherwise cause an undue burden on the service provider.
2. All records or other information received by an attorney for the Commonwealth or the Attorney General pursuant to an administrative subpoena issued under this section shall be used only for a reasonable length of time not to exceed 30 days and only for a legitimate law-enforcement purpose. Upon completion of the investigation, the records or other information held by the attorney for the Commonwealth or the Attorney General shall be destroyed if no prosecution is initiated. The existence of such a subpoena shall be disclosed upon motion of an accused.
3. No cause of action shall lie in any court against an electronic communication service or remote computing service provider, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of an administrative subpoena issued under this section.
4. Records or other information pertaining to a subscriber to or customer of such service means name, address, local and long distance telephone connection records, or records of session times and durations, length of service, including start date, and types of service utilized, telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address, and means and source of payment for such service.
5. Nothing in this section shall require the disclosure of information in violation of any federal law.

   (2007, cc. 802, 814; 2014, c. 166; 2015, cc. 544, 625; 2019, c. 458; 2021, Sp. Sess. I, c. 188.)

The 2014 amendments. - The 2014 amendment by c. 166 in subdivision A 1 inserted "18.2-47, 18.2-48 , 18.2-49 , 18.2- 346, 18.2-347 , 18.2-348 , 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 " and made a minor stylistic change.

The 2015 amendments. - The 2015 amendments by cc. 544 and 625 are identical, and inserted "or the Attorney General" following "Commonwealth" in the first paragraph of subsection A, in subdivision A 1 and throughout subsection B; added subdivision A 2; redesignated former subdivision A 2 as subdivision A 3; and inserted the third sentence of subsection B.

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subdivision A 1.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, inserted "18.2-346.01" in subdivision A 1.

§ 19.2-10.3. Reasonable suspicion required to stop, board, or inspect a noncommercial vessel on navigable waters of the Commonwealth.

1. Notwithstanding any other provision of law, no law-enforcement officer charged with enforcing laws or regulations on the navigable waters of the Commonwealth shall stop, board, or inspect any noncommercial vessel on the navigable waters of the Commonwealth unless such officer has reasonable suspicion that a violation of law or regulation exists.
2. The provisions of subsection A shall not apply to lawful stops, boardings, or inspections conducted by conservation police officers, as defined in § 29.1-100 , or the Virginia Marine Police for the purposes of inspecting hunting, fishing, and trapping licenses pursuant to §§ 28.2-231 and 29.1-337 or creel and bag limit inspections pursuant to § 29.1-209 , nor shall it prohibit lawful boating safety checkpoints conducted by conservation police officers and Virginia Marine Police in accordance with established agency policy. (2015, c. 484.)

§ 19.2-10.4. Subpoena duces tecum; attorney-issued subpoena duces tecum.

In any criminal case a subpoena duces tecum may be issued by the attorney of record who is an active member of the Virginia State Bar at the time of issuance, as an officer of the court. Any such subpoena duces tecum shall be on a form approved by the Executive Secretary of the Supreme Court of Virginia, signed by the attorney of record as if a pleading, and shall include the attorney's address. A copy of the signed subpoena duces tecum, together with the attorney's certificate of service pursuant to Rule 1:12, shall be mailed or delivered to the adverse party and to the clerk's office of the court in which the case is pending on the day of issuance by the attorney. The law governing subpoenas duces tecum issued pursuant to Rule 3A:12(b) shall apply. A sheriff shall not be required to serve an attorney-issued subpoena duces tecum that is not issued at least five business days prior to the date production of evidence is desired. When an attorney transmits one or more subpoenas duces tecum to a sheriff to be served in his jurisdiction, the provisions in § 8.01-407 regarding such transmittals shall apply.

If the time for compliance with a subpoena duces tecum issued by an attorney is less than 14 days after service of the subpoena, the person to whom it is directed may serve upon the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection, or testing should not be required. If objection is made, the party on whose behalf the subpoena duces tecum was issued and served shall not be entitled to the requested production, inspection, or testing, except pursuant to an order of the court, but may, upon notice to the person to whom the subpoena was directed, move for an order to compel production, inspection, or testing. Upon such timely motion, the court may quash, modify, or sustain the subpoena duces tecum.

Subpoenas duces tecum for medical records issued by an attorney shall be subject to the provisions of §§ 8.01-413 and 32.1-127.1:03 , except that no separate fee for issuance shall be imposed.

(2020, c. 771.)

§ 19.2-11. Procedure in contempt cases.

No court or judge shall impose a fine upon a juror, witness or other person for disobedience of its process or any contempt, unless he either be present in court at the time, or shall have been served with a rule, returnable to a certain time, requiring him to show cause why the fine should not be imposed and shall have failed to appear and show cause.

(Code 1950, § 19.1-16; 1960, c. 366; 1968, c. 639; 1975, c. 495.)

Cross references. - For general provisions relating to contempt, see §§ 18.2-456 through 18.2-459 and notes thereto.

Research References. - Virginia Forms (Matthew Bender). No. 2-1414. Order Against a Witness to Show Cause Why a Fine for Contempt Should Not Be Imposed, et seq.

Michie's Jurisprudence. - For related discussion, see 4A M.J. Contempt, §§ 22, 29; 9A M.J. Grand Jury, § 16.

§ 19.2-11.01. Crime victim and witness rights.

1. In recognition of the Commonwealth's concern for the victims and witnesses of crime, it is the purpose of this chapter to ensure that the full impact of crime is brought to the attention of the courts of the Commonwealth; that crime victims and witnesses are treated with dignity, respect and sensitivity; and that their privacy is protected to the extent permissible under law. It is the further purpose of this chapter to ensure that victims and witnesses are informed of the rights provided to them under the laws of the Commonwealth; that they receive authorized services as appropriate; and that they have the opportunity to be heard by law-enforcement agencies, attorneys for the Commonwealth, corrections agencies and the judiciary at all critical stages of the criminal justice process to the extent permissible under law. Unless otherwise stated and subject to the provisions of § 19.2-11.1 , it shall be the responsibility of a locality's crime victim and witness assistance program to provide the information and assistance required by this chapter, including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim. As soon as practicable after identifying a victim of a crime, the investigating law-enforcement agency shall provide the victim with a standardized form listing the specific rights afforded to crime victims. The form shall include a telephone number by which the victim can receive further information and assistance in securing the rights afforded crime victims, the name, address and telephone number of the office of the attorney for the Commonwealth, the name, address and telephone number of the investigating law-enforcement agency, and a summary of the victim's rights under § 40.1-28.7:2 .
   1. Victim and witness protection and law-enforcement contacts.
      1. In order that victims and witnesses receive protection from harm and threats of harm arising out of their cooperation with law-enforcement, or prosecution efforts, they shall be provided with information as to the level of protection which may be available pursuant to § 52-35 or to any other federal, state or local program providing protection, and shall be assisted in obtaining this protection from the appropriate authorities.
      2. Victims and witnesses shall be provided, where available, a separate waiting area during court proceedings that affords them privacy and protection from intimidation, and that does not place the victim in close proximity to the defendant or the defendant's family.
   2. Financial assistance.
      1. Victims shall be informed of financial assistance and social services available to them as victims of a crime, including information on their possible right to file a claim for compensation from the Crime Victims' Compensation Fund pursuant to Chapter 21.1 (§ 19.2-368.1 et seq.) and on other available assistance and services.
      2. Victims shall be assisted in having any property held by law-enforcement agencies for evidentiary purposes returned promptly in accordance with §§ 19.2-270.1 and 19.2-270.2 .
      3. Victims shall be advised that restitution is available for damages or loss resulting from an offense and shall be assisted in seeking restitution in accordance with §§ 19.2-305 and 19.2-305.1 , Chapter 21.1 (§ 19.2-368.1 et seq.), Article 21 (§ 58.1-520 et seq.) of Chapter 3 of Title 58.1, and other applicable laws of the Commonwealth.
   3. Notices.
      1. Victims and witnesses shall be (i) provided with appropriate employer intercession services to ensure that employers of victims and witnesses will cooperate with the criminal justice process in order to minimize an employee's loss of pay and other benefits resulting from court appearances and (ii) advised that pursuant to § 18.2-465.1 it is unlawful for an employer to penalize an employee for appearing in court pursuant to a summons or subpoena.
      2. Victims shall receive advance notification when practicable from the attorney for the Commonwealth of judicial proceedings relating to their case and shall be notified when practicable of any change in court dates in accordance with § 19.2-265.01 if they have provided their names, current addresses and telephone numbers.
      3. Victims shall receive notification, if requested, subject to such reasonable procedures as the Attorney General may require pursuant to § 2.2-511 , from the Attorney General of the filing and disposition of any appeal or habeas corpus proceeding involving their case.
      4. Victims shall be notified by the Department of Corrections or a sheriff or jail superintendent (i) in whose custody an escape, change of name, transfer, release or discharge of a prisoner occurs pursuant to the provisions of §§ 53.1-133.02 and 53.1-160 or (ii) when an accused is released on bail, if they have provided their names, current addresses and telephone numbers in writing. Such notification may be provided through the Virginia Statewide VINE (Victim Information and Notification Everyday) System or other similar electronic or automated system.
      5. Victims shall be advised that, in order to protect their right to receive notices and offer input, all agencies and persons having such duties must have current victim addresses and telephone numbers given by the victims. Victims shall also be advised that any such information given shall be confidential as provided by § 19.2-11.2 .
      6. Victims of sexual assault, as defined in § 19.2-11.5 , shall be advised of their rights regarding physical evidence recovery kits as provided in Chapter 1.2 (§ 19.2-11.5 et seq.).
      7. Upon the victim's request, the victim shall be notified by the Commissioner of Behavioral Health and Developmental Services or his designee of the release of a defendant (i) who was found to be unrestorably incompetent and was committed pursuant to Article 5 (§ 37.2-814 et seq.) of Chapter 8 of Title 37.2, committed pursuant to Chapter 9 (§ 37.2-900 et seq.) of Title 37.2, or certified pursuant to § 37.2-806 or (ii) who was acquitted by reason of insanity and committed pursuant to § 19.2-182.3 .
   4. Victim input.
      1. Victims shall be given the opportunity, pursuant to § 19.2-299.1 , to prepare a written victim impact statement prior to sentencing of a defendant and may provide information to any individual or agency charged with investigating the social history of a person or preparing a victim impact statement under the provisions of §§ 16.1-273 and 53.1-155 or any other applicable law.
      2. Victims shall have the right to remain in the courtroom during a criminal trial or proceeding pursuant to the provisions of § 19.2-265.01 .
      3. On motion of the attorney for the Commonwealth, victims shall be given the opportunity, pursuant to § 19.2-295.3 , to testify prior to sentencing of a defendant regarding the impact of the offense.
      4. In a felony case, the attorney for the Commonwealth, upon the victim's written request, shall consult with the victim either verbally or in writing (i) to inform the victim of the contents of a proposed plea agreement and (ii) to obtain the victim's views about the disposition of the case, including the victim's views concerning dismissal, pleas, plea negotiations and sentencing. However, nothing in this section shall limit the ability of the attorney for the Commonwealth to exercise his discretion on behalf of the citizens of the Commonwealth in the disposition of any criminal case. The court shall not accept the plea agreement unless it finds that, except for good cause shown, the Commonwealth has complied with clauses (i) and (ii). Good cause shown shall include, but not be limited to, the unavailability of the victim due to incarceration, hospitalization, failure to appear at trial when subpoenaed, or change of address without notice. Upon the victim's written request, the victim shall be notified in accordance with subdivision A 3 b of any proceeding in which the plea agreement will be tendered to the court. The responsibility to consult with the victim under this subdivision shall not confer upon the defendant any substantive or procedural rights and shall not affect the validity of any plea entered by the defendant.
   5. Courtroom assistance.
      1. Victims and witnesses shall be informed that their addresses, any telephone numbers, and email addresses may not be disclosed, pursuant to the provisions of §§ 19.2-11.2 and 19.2-269.2 , except when necessary for the conduct of the criminal proceeding.
      2. Victims and witnesses shall be advised that they have the right to the services of an interpreter in accordance with §§ 19.2-164 and 19.2-164.1 .
      3. Victims and witnesses of certain sexual offenses shall be advised that there may be a closed preliminary hearing in accordance with § 18.2-67.8 and, if a victim was 14 years of age or younger on the date of the offense and is 16 or under at the time of the trial, or a witness to the offense is 14 years of age or younger at the time of the trial, that two-way closed-circuit television may be used in the taking of testimony in accordance with § 18.2-67.9 .
   6. Post trial assistance.
      1. Within 30 days of receipt of a victim's written request after the final trial court proceeding in the case, the attorney for the Commonwealth shall notify the victim in writing, of (i) the disposition of the case, (ii) the crimes of which the defendant was convicted, (iii) the defendant's right to appeal, if known, and (iv) the telephone number of offices to contact in the event of nonpayment of restitution by the defendant.
      2. If the defendant has been released on bail pending the outcome of an appeal, the agency that had custody of the defendant immediately prior to his release shall notify the victim as soon as practicable that the defendant has been released.
      3. If the defendant's conviction is overturned, and the attorney for the Commonwealth decides to retry the case or the case is remanded for a new trial, the victim shall be entitled to the same rights as if the first trial did not take place.
2. For purposes of this chapter, "victim" means (i) a person who has suffered physical, psychological, or economic harm as a direct result of the commission of (a) a felony, (b) assault and battery in violation of § 18.2-57 or 18.2-57.2 , stalking in violation of § 18.2-60.3 , a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4 , sexual battery in violation of § 18.2-67.4 , attempted sexual battery in violation of § 18.2-67.5 , or maiming or driving while intoxicated in violation of § 18.2-51.4 or 18.2-266 , or (c) a delinquent act that would be a felony or a misdemeanor violation of any offense enumerated in clause (b) if committed by an adult; (ii) a spouse or child of such a person; (iii) a parent or legal guardian of such a person who is a minor; (iv) for the purposes of subdivision A 4 only, a current or former foster parent or other person who has or has had physical custody of such a person who is a minor, for six months or more or for the majority of the minor's life; or (v) a spouse, parent, sibling, or legal guardian of such a person who is physically or mentally incapacitated or was the victim of a homicide; however, "victim" does not mean a parent, child, spouse, sibling, or legal guardian who commits a felony or other enumerated criminal offense against a victim as defined in clause (i).
3. Officials and employees of the judiciary, including court services units, law-enforcement agencies, the Department of Corrections, attorneys for the Commonwealth and public defenders, shall be provided with copies of this chapter by the Department of Criminal Justice Services or a crime victim and witness assistance program. Each agency, officer or employee who has a responsibility or responsibilities to victims under this chapter or other applicable law shall make reasonable efforts to become informed about these responsibilities and to ensure that victims and witnesses receive such information and services to which they may be entitled under applicable law, provided that no liability or cause of action shall arise from the failure to make such efforts or from the failure of such victims or witnesses to receive any such information or services.

   (1995, c. 687; 1996, c. 546; 1997, c. 691; 1998, c. 485; 1999, cc. 668, 702, 844; 2000, cc. 272, 827; 2001, cc. 410, 530, 549; 2002, cc. 310, 810, 818; 2003, cc. 103, 751, 764; 2006, c. 241; 2007, cc. 94, 109, 423; 2014, c. 230; 2017, c. 535; 2018, cc. 47, 83; 2019, c. 216; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to a victim of crime or a representative of a crime victims' organization serving as a member on the Criminal Justice Services Board, see § 9.1-108 .

Editor's note. - Acts 2001, c. 410, cl. 2, provides: "That the provisions of this act shall not be construed so as to require the installation of permanent two-way closed-circuit television equipment in any courtroom in the Commonwealth."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendment by c. 668, in subdivision 5 c, substituted "was fourteen" for "is twelve," and inserted "on the date of the offense and is sixteen or under at the time of the trial."

The 1999 amendment by c. 702 added the second paragraph in subsection A.

The 1999 amendment by c. 844, deleted "unless excluded by the court as a material witness" in subsection A 4 b, and substituted "clause" for "subdivision" near the end of subsection B.

The 2000 amendments. - The 2000 amendment by c. 272 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; and in subsection B, inserted "sibling" twice.

The 2000 amendment by c. 827 substituted "this title" for "title 19.2" in subdivisions A 2 a and A 2 c; added present subdivision A 3 c; and redesignated former subdivisions A 3 c and A 3 d as present subdivisions A 3 d and A 3 e, respectively.

The 2001 amendments. - The 2001 amendment by c. 410, in subdivision A 5 c, inserted "and witnesses," and inserted "or a witness to the offense is fourteen years of age or younger at the time of the trial, that."

The 2001 amendment by cc. 530 and 549 are virtually identical, and added subdivision A 4 d, and deleted "of this subsection" at the end of subsection B. Chapter 549 includes the phrase "failure to appear at trial when subpoenaed" near the end of the first paragraph of subdivision A 4 d, which phrase does not occur in c. 530.

The 2002 amendments. - The 2002 amendment by c. 310 substituted " § 18.2-57 " for " §§ 18.2-57 , 18.2-57.1 " in subsection B.

The 2002 amendments by cc. 810 and 818 are identical, and added "including verification that the standardized form listing the specific rights afforded to crime victims has been received by the victim" at the end of the first paragraph of subsection A; and added the second sentence in subdivision A 3 e.

The 2003 amendments. - The 2003 amendment by c. 103, in the second paragraph of subsection A, in the first sentence, substituted "As soon as practicable after identifying a victim of" for "Following," inserted "the investigating" preceding "law-enforcement" and substituted "agency" for "personnel" thereafter, and at the end of the last sentence, inserted "the name, address and telephone number of the office of the attorney for the Commonwealth, and the name, address and telephone number of the investigating law-enforcement agency"; inserted "and that does not place the victim in close proximity to the defendant or the defendant's family" at the end of subdivision A 1 b; in clause (ii) of the first sentence of paragraph A 4 d, inserted "about the disposition of the case, including the victim's views concerning dismissal, pleas," and inserted "and sentencing" at the end; in subdivision A 5 c, twice substituted "14" for "fourteen," and substituted "16" for "sixteen"; and added subdivision A 6.

The 2003 amendments by cc. 751 and 764 are virtually identical, and substituted "14" for "fourteen" twice and "16" for "sixteen" in subdivision A 5 c; and in subsection B, deleted "or" at the end of clause (iii), inserted present clause (iv), and redesignated former clause (iv) as present clause (v).

The 2006 amendments. - The 2006 amendment by c. 241, in subdivision A 3 d, inserted the clause (i) designation and "or (ii) when an accused is released on bail."

The 2007 amendments. - The 2007 amendments by cc. 94 and 109 are identical, and added the last sentence in subdivision A 3 d.

The 2007 amendment by c. 423 in the second paragraph of subsection A, deleted "and" preceding "the name," and inserted "and a summary of the victim's rights under § 40.1-28.7:2 " at the end.

The 2014 amendments. - The 2014 amendment by c. 230, in subsection B, inserted "(a)," substituted "(b)" for "or of," inserted "a violation of a protective order in violation of § 16.1-253.2 or 18.2-60.4 " and "or (c) a delinquent act that would be a felony or a misdemeanor violation of any offense enumerated in clause (b) if committed by an adult," deleted "of this section" following "subdivision A 4," and made minor stylistic changes.

The 2017 amendments. - The 2017 amendment by c. 535 added subdivision A 3 f.

The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "addresses, any telephone numbers, and email addresses" for "addresses and telephone numbers" in subdivision A 5 a.

The 2019 amendments. - The 2019 amendment by c. 216 added subdivision A 3 g; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted " § 19.2-295.3 " for " §§ 19.2-264.4 and 19.2-295.3 " in subdivision A 4 c.

Law review. - For 1995 survey of legal issues involving children, see 29 U. Rich. L. Rev. 1117 (1995).

For 2000 survey of Virginia criminal law and procedure, see 34 U. Rich. L. Rev. 749 (2000).

For article, "Criminal Law and Procedure," see 35 U. Rich. L. Rev. 537 (2001).

For article, "Legal Issues Involving Children," see 35 U. Rich. L. Rev. 741 (2001).

For annual survey article on legal issues involving children, see 38 U. Rich. L. Rev. 161 (2003).

For annual survey of Virginia labor and employment law, see 40 U. Rich. L. Rev. 241 (2005).

For article, "Prosecutorial Power: A Transnational Symposium: The Worldwide Accountability Deficit for Prosecutors," see 67 Wash & Lee L. Rev. 1587 (2010).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 38, 80; 20 M.J. Witnesses, § 35.

§ 19.2-11.02. Prohibiting inquiry into the immigration status of certain victims or witnesses of crime.

1. No law-enforcement officer, as defined in § 9.1-101 , shall, in connection with the report, investigation, or prosecution of a criminal violation of state or local law, inquire into the immigration status of any person who (i) reports that he is a victim of the crime or is the parent or guardian of a minor victim of the crime or (ii) is a witness in the investigation of the crime or the parent or guardian of a minor witness to the crime.
2. Nothing in this section shall prohibit a law-enforcement officer from inquiring into the immigration status of the parent or guardian of a minor victim if such parent or guardian has been arrested for, has been charged with, or is being investigated for a crime against the minor victim.
3. Nothing in this section shall affect the enforcement or implementation of § 18.2-59 , subdivision 10 of § 18.2-308.09 , or subdivision B 1 of § 18.2-308.2:2 , or prohibit a law-enforcement officer from inquiring into a person's immigration status to enforce or implement such sections. (2020, c. 273.)

§ 19.2-11.1. Establishment of crime victim-witness assistance programs; funding; minimum standards.

Any local governmental body which establishes, operates and maintains a crime victim and witness assistance program, whose funding is provided in whole or part by grants administered by the Department of Criminal Justice Services pursuant to § 9.1-104 , shall operate the program in accordance with guidelines which shall be established by the Department to implement the provisions of this chapter and other applicable laws establishing victims' rights.

(1988, c. 542; 1994, cc. 361, 598; 1995, c. 687; 1996, c. 545.)

Editor's note. - At the direction of the Code Commission, Acts 1994, c. 361, which amended this section, was not given effect due to a conflict. The amendment added a subdivision 10 similar to that added by Acts 1994, c. 598. The subdivisions were subsequently deleted by Acts 1995, c. 687, which enacted § 19.2-11.01 .

§ 19.2-11.2. Crime victim's right to nondisclosure of certain information; exceptions; testimonial privilege.

Upon request of any witness in a criminal prosecution under § 18.2-46.2 , 18.2-46.3 , or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 , or any crime victim, neither a law-enforcement agency, the attorney for the Commonwealth, the counsel for a defendant, a court nor the Department of Corrections, nor any employee of any of them, may disclose, except among themselves, the residential address, any telephone number, email address, or place of employment of the witness or victim or a member of the witness' or victim's family, except to the extent that disclosure is (i) of the site of the crime, (ii) required by law or Rules of the Supreme Court, (iii) necessary for law-enforcement purposes or preparation for court proceedings, or (iv) permitted by the court for good cause.

Except with the written consent of the victim of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime, a law-enforcement agency may not disclose to the public information that directly or indirectly identifies the victim of such crime except to the extent that disclosure is (a) of the site of the crime, (b) required by law, (c) necessary for law-enforcement purposes, or (d) permitted by the court for good cause. In addition, at the request of the victim to the Court of Appeals of Virginia or the Supreme Court of Virginia hearing, on or after July 1, 2007, the case of a crime involving any sexual assault or sexual abuse, no appellate decision shall contain the first or last name of the victim.

Nothing herein shall limit the right to examine witnesses in a court of law or otherwise affect the conduct of any criminal proceeding.

(1994, cc. 845, 931; 2002, cc. 810, 818; 2005, cc. 764, 813; 2007, c. 503; 2014, c. 744; 2017, c. 500; 2018, cc. 47, 83.)

Cross references. - As to limitations on the release of criminal incident information, see § 2.2-3706.1 .

As to nondisclosure of victim's name in the cold case searchable database, see § 52-34.16 .

Editor's note. - Acts 2005, cc. 764 and 813, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and substituted "sexual abuse or family abuse" for "or abuse" in the second paragraph.

The 2005 amendments. - The 2005 amendments by cc. 764 and 813 are identical, and in the first paragraph, inserted "witness in a criminal prosecution under § 18.2-46.2 or 18.2-46.3 , or any," "the counsel for a defendant," "witness or" in two places, and "or preparation for court proceedings."

The 2007 amendments. - The 2007 amendment by c. 503 added the last sentence in the second paragraph.

The 2014 amendments. - The 2014 amendment by c. 744 in the first paragraph inserted "or 18.2-248 or of any violent felony as defined by subsection C of § 17.1-805 ."

The 2017 amendments. - The 2017 amendment by c. 500, in the second paragraph, inserted "of any crime involving any sexual assault, sexual abuse, or family abuse or the victim's next of kin if the victim is a minor and the victim's death results from any crime," substituted "of such crime" for "of a crime involving any sexual assault, sexual abuse or family abuse," and redesignated clauses (i) through (iv) as clauses (a) through (d).

The 2018 amendments. - The 2018 amendments by cc. 47 and 83 are identical, and substituted "any telephone number, email address" for "telephone number" in the first paragraph.

§ 19.2-11.3. Virginia Crime Victim-Witness Fund.

There is hereby established the Virginia Crime Victim-Witness Fund as a special nonreverting fund to be administered by the Department of Criminal Justice Services to support victim and witness services that meet the minimum standards prescribed for such programs under § 19.2-11.1 . A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections, shall be deposited into the state treasury to the credit of this Fund. The Fund shall be distributed according to grant procedures adopted pursuant to § 9.1-104 and shall be established on the books of the Comptroller. Any funds remaining in such Fund at the end of the biennium shall not revert to the general fund, but shall remain in the Fund. Interest earned on the Fund shall be credited to the Fund.

(1995, c. 371; 2002, c. 831.)

The 2002 amendments. - The 2002 amendment by c. 831, effective July 1, 2003, substituted "A portion of the sum collected pursuant to §§ 16.1-69.48:1, 17.1-275.1 , 17.1-275.2 , 17.1-275.3 , 17.1-275.4 , 17.1-275.7 , 17.1-275.8 , and 17.1-275.9 , as specified in these sections" for "Three dollars collected pursuant to subdivisions A 10 and A 11 of § 17.1-275 and to subdivision A 1 of § 16.1-69.48:1" in the second sentence.

§ 19.2-11.4. Establishment of victim-offender reconciliation program.

1. Any Crime Victim and Witness Assistance Program may establish a victim-offender reconciliation program to provide an opportunity after conviction for a victim, at his request and upon the subsequent agreement of the offender, to:
   1. Meet with the offender in a safe, controlled environment in accordance with the policies established pursuant to subsection B of § 53.1-30 ;
   2. Give to the offender, either orally or in writing, a summary of the financial, emotional, and physical effects of the offense on the victim or the victim's family; and
   3. Discuss a proposed restitution agreement which may be submitted for consideration by the sentencing court for damages incurred by the victim as a result of the offense.
2. If the victim chooses to participate in a victim-offender reconciliation program under this section, the victim shall execute a waiver releasing the Crime Victim and Witness Assistance Program, attorney for the offender and the attorney for the Commonwealth from civil and criminal liability for actions taken by the victim or offender as a result of participation by the victim or the offender in a victim-offender reconciliation program.
3. A victim shall not be required to participate in a victim-offender reconciliation program under this section.
4. The failure of any person to participate in a reconciliation program pursuant to this section shall not be used directly or indirectly at sentencing.

   (1995, c. 628; 2010, c. 844.)

The number of this section was assigned by the Code Commission, the section number in the 1995 act having been § 19.2-11.3 .

The 2010 amendments. - The 2010 amendment by c. 844 added "in accordance with the policies established pursuant to subsection B of § 53.1-30 " in subdivision A 1.

§ 19.2-11.5. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Anonymous physical evidence recovery kit" means a physical evidence recovery kit that is collected from a victim of sexual assault through a forensic medical examination where the victim elects, at the time of the examination, not to report the sexual assault offense to a law-enforcement agency.

"Department" means the Virginia Department of Forensic Science.

"Division" means the Division of Consolidated Laboratory Services of the Virginia Department of General Services.

"Health care provider" means any hospital, clinic, or other medical facility that provides forensic medical examinations to victims of sexual assault.

"Law-enforcement agency" means the state or local law-enforcement agency with the primary responsibility for investigating an alleged sexual assault offense case and includes the employees of that agency.

"Physical evidence recovery kit" means any evidence collection kit supplied by the Department to health care providers for use in collecting evidence from victims of sexual assault during forensic medical examinations or to the Office of the Chief Medical Examiner for use during death investigations to collect evidence from decedents who may be victims of sexual assault.

"Sexual assault offense" means a violation or attempted violation of any offense enumerated in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2 or of any offense specified in § 18.2-361 , 18.2-370 , or 18.2-370 .1.

"Victim of sexual assault" means any person who undergoes a forensic medical examination for the collection of a physical evidence recovery kit connected to a sexual assault offense.

(2016, cc. 332, 698.)

Cross references. - As to services for survivors of sexual assault, generally, see § 32.1-162.15:2 et seq.

§ 19.2-11.6. Anonymous physical evidence recovery kits.

1. When a victim of sexual assault who undergoes a forensic medical examination elects not to report the offense to law enforcement, the health care provider shall inform the victim that the physical evidence recovery kit shall be forwarded to the Division for storage as an anonymous physical evidence recovery kit. The health care provider shall further inform the victim of the length of time the anonymous physical evidence recovery kit will be stored by the Division, the victim's right to object to the destruction of the anonymous physical evidence recovery kit, and how the victim can have the anonymous physical evidence recovery kit released to a law-enforcement agency at a later date. The health care provider shall forward the anonymous physical evidence recovery kit to the Division in accordance with the policies and procedures established by the Division.
2. The Division shall store any anonymous physical evidence recovery kit received for a minimum of two years. The Division shall store the anonymous physical evidence recovery kit for an additional period of 10 years following the receipt of a written objection to the destruction of the anonymous physical evidence recovery kit from the victim. After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period, may destroy the anonymous physical evidence recovery kit or, in its discretion or upon request of the victim or the law-enforcement agency, may elect to retain the anonymous physical evidence recovery kit for a longer period of time. Upon notification from either the law-enforcement agency or the attorney for the Commonwealth that the victim has elected to report the offense to the law-enforcement agency, the Division shall release the anonymous physical evidence recovery kit to the law-enforcement agency.

   (2016, cc. 332, 698; 2017, c. 535.)

Cross references. - As to storage, retention, and dissemination of photographic documentation by, and submission of evidence by, treatment hospitals, see §§ 32.1-162.15:8 , 32.1-162.15:9 .

The 2017 amendments. - The 2017 amendment by c. 535 inserted "the victim's right to object to the destruction of the anonymous physical evidence recovery kit" in the second sentence; in subsection B, inserted the second sentence, substituted "After the initial two years or any additional 10-year storage period, the Division, in the absence of the receipt of a written objection from the victim in the most recent 10-year period" for "After two years, the Division" in the third sentence.

§ 19.2-11.7. Law enforcement taking possession of physical evidence recovery kits.

1. A health care provider that has collected a physical evidence recovery kit from a victim of sexual assault who has elected to report the offense shall forthwith notify the law-enforcement agency that such kit has been collected.
2. A law-enforcement agency that receives notice from a health care provider that a physical evidence recovery kit has been collected shall forthwith take possession of the physical evidence recovery kit.

   (2016, cc. 332, 698.)

§ 19.2-11.8. Submission of physical evidence recovery kits to the Department.

1. A law-enforcement agency that receives a physical evidence recovery kit shall submit the physical evidence recovery kit to the Department for analysis within 60 days of receipt, except under the following circumstances: (i) it is an anonymous physical evidence recovery kit that shall be forwarded to the Division for storage; (ii) the physical evidence recovery kit was collected by the Office of the Chief Medical Examiner as part of a routine death investigation, and the medical examiner and the law-enforcement agency agree that analysis is not warranted; (iii) the physical evidence recovery kit is connected to an offense that occurred outside of the Commonwealth; (iv) the physical evidence recovery kit was determined by the law-enforcement agency not to be connected to a criminal offense; or (v) another law-enforcement agency has taken over responsibility for the investigation related to the physical evidence recovery kit.
2. Upon completion of analysis, the Department shall return the physical evidence recovery kit to the submitting law-enforcement agency. Upon receipt of the physical evidence recovery kit from the Department, the law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years or until 10 years after the victim reaches the age of majority if the victim was a minor at the time of collection, whichever is longer. The law-enforcement agency shall store the physical evidence recovery kit for a period of 10 years following the receipt of a written objection to the destruction of the kit from the victim. After the mandatory retention period or any additional 10-year storage period has lapsed, the law-enforcement agency shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction. In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency may destroy the physical evidence recovery kit or, in its discretion, may elect to retain the physical evidence recovery kit for a longer period of time.
3. The DNA profiles developed from physical evidence recovery kits submitted to the Department for analysis pursuant to this section shall be uploaded into any local, state, or national DNA data bank only if eligible as determined by Department procedures and in accordance with state and federal law.

   (2016, cc. 332, 698; 2017, c. 535; 2018, c. 398.)

The 2017 amendments. - The 2017 amendment by c. 535 in subsection B, substituted "10 years after" for "two years after" in the second sentence, inserted the third sentence, added "shall, unless the victim has made a written request not to be contacted for this purpose, make a reasonable effort to notify the victim of the intended destruction of the physical evidence recovery kit no less than 60 days prior to the intended date of such destruction" in the fourth sentence, and inserted "In the absence of a response from the victim, or with the consent of the victim, the law-enforcement agency" in the last sentence.

The 2018 amendments. - The 2018 amendment by c. 398 added clause (v) in subsection A and made related changes.

§ 19.2-11.9. Lack of compliance with procedures.

The failure of a law-enforcement agency to take possession of a physical evidence recovery kit as provided in this chapter or to submit a physical evidence recovery kit to the Department within the time period prescribed under this chapter does not alter the authority of the law-enforcement agency to take possession of the physical evidence recovery kit or to submit the physical evidence recovery kit to the Department under this chapter or the authority of the Department to accept and analyze the physical evidence recovery kit or to maintain or upload any developed DNA profiles from the physical evidence recovery kit into any local, state, or national DNA data bank if eligible as determined by Department procedures and in accordance with state and federal law.

A person accused or convicted of committing a crime against a sexual assault victim has no standing to object to any failure to comply with the requirements of this chapter, and the failure to comply with the requirements of this chapter is not grounds for challenging the admissibility of the evidence or setting aside the conviction or sentence.

(2016, cc. 332, 698.)

§ 19.2-11.10. Expungement of DNA profile.

If the Department receives written confirmation from a law-enforcement agency or attorney for the Commonwealth that a DNA profile that has been uploaded pursuant to this chapter into any local, state, or national DNA data bank was determined not to be connected to a criminal offense or that the DNA profile is of an individual who is not the putative perpetrator, the Department shall expunge the DNA profile from the DNA data bank.

The detention, arrest, or conviction of a person based upon a data bank match or data bank information is not invalidated if it is determined that the sample was obtained, placed, or retained in the data bank in good faith pursuant to this chapter, and evidence based upon or derived from the DNA record shall not be excluded by a court.

(2016, cc. 332, 698.)

§ 19.2-11.11. Victim's right to notification of scientific analysis information.

1. In addition to the rights provided under Chapter 1.1 (§ 19.2-11.01 et seq.), a victim of sexual assault, a parent or guardian of a victim of a sexual assault who was a minor at the time of the offense, or the next of kin of a deceased victim of sexual assault shall have the right to request and receive information from the law-enforcement agency regarding (i) the submission of any physical evidence recovery kit for forensic analysis that was collected from the victim during the investigation of the offense; (ii) the status of any analysis being performed on any evidence that was collected during the investigation of the offense; (iii) the results of any analysis; and (iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known.
2. In the case of a physical evidence recovery kit that was received by a law-enforcement agency prior to July 1, 2016, and that has subsequently been submitted for analysis, the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be notified by the law-enforcement agency of the completion of the analysis and shall, upon request, receive information from the law-enforcement agency regarding the results of any analysis, unless disclosing this information would interfere with the investigation or prosecution of the offense, in which case the victim, parent, guardian, or next of kin shall be informed of the estimated date on which the information may be disclosed, if known. A good faith attempt to locate the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim shall be made if a current address for the victim, a parent or guardian of a minor victim, or the next of kin of a deceased victim is unavailable.
3. The victim, parent, guardian, or next of kin who requests to be notified under subsection A shall provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.

   The victim, parent, guardian, or next of kin who requests to be notified under subsection B may provide a current address and telephone number to the attorney for the Commonwealth and to the law-enforcement agency that is investigating the offense and keep such information updated.

4. Nothing contained in this section shall require a law-enforcement agency to disclose any information regarding the results of any analysis to a parent or guardian of a minor victim or to the next of kin of a deceased victim if such parent, guardian, or next of kin is the alleged perpetrator of the offense.

   (2016, cc. 332, 698; 2017, cc. 535, 672.)

The 2017 amendments. - The 2017 amendment by c. 535 inserted "(iv) the time frame for how long the kit will be held in storage and the victim's rights regarding such storage" and made related changes.

The 2017 amendment by c. 672, in subsection A, substituted "the next of kin" for "close relative"; added subsection B; in subsection C, substituted "shall" for "must" and added the last paragraph; added subsection D; and made stylistic changes.

§ 19.2-11.12. Costs of physical evidence recovery kits.

No victim of sexual assault shall be charged for the cost of collecting or storing a physical evidence recovery kit or an anonymous physical evidence recovery kit.

(2017, c. 535.)

§ 19.2-11.13. Physical Evidence Recovery Kit Tracking System.

1. The Department shall maintain a statewide electronic tracking system for physical evidence recovery kits. The Physical Evidence Recovery Kit Tracking System (the System) will utilize an assigned unique identification number to track each physical evidence recovery kit from its distribution as an uncollected kit to the health care provider through to its destruction. The Department shall ensure that each physical evidence recovery kit is assigned a unique identification number.
2. The Department shall provide access to the System to health care providers, law-enforcement agencies, the Division, and the Office of the Chief Medical Examiner. All such entities and agencies shall be required to enter the identification number and other information pertaining to the kits in the System as required by the Department and to update the status and location of each kit in the System whenever such status or location changes.
3. The health care provider shall inform the victim of sexual assault of the unique identification number assigned to the physical evidence recovery kit utilized by the health care provider during the forensic medical examination and provide the victim with information regarding the System.
4. Records entered into the System are confidential and are not subject to disclosure under the Freedom of Information Act (§ 2.2-3700 et seq.). (2019, c. 473.)

Editor's note. - Acts 2019, c. 473, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2020."

Acts 2019, c. 473, cl. 3 provides: "That information about the use of the Physical Evidence Recovery Kit Tracking System shall be reported in the Forensic Science Board's annual report that is submitted by November 1 of each year in accordance with subsection B of § 9.1-1110 of the Code of Virginia."

Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

§ 19.2-12. Who are conservators of the peace.

Every judge and attorney for the Commonwealth throughout the Commonwealth and every magistrate within the geographical area for which he is appointed or elected, shall be a conservator of the peace. In addition, every commissioner in chancery, while sitting as such commissioner; any special agent or law-enforcement officer of the United States Department of Justice, National Marine Fisheries Service of the United States Department of Commerce, Department of Treasury, Department of Agriculture, Department of Defense, Department of State, Office of the Inspector General of the Department of Transportation, Department of Homeland Security, and Department of Interior; any inspector, law-enforcement official or police personnel of the United States Postal Service; any United States marshal or deputy United States marshal whose duties involve the enforcement of the criminal laws of the United States; any officer of the Virginia Marine Police; any criminal investigator of the Department of Professional and Occupational Regulation, who meets the minimum law-enforcement training requirements established by the Department of Criminal Justice Services for in-service training; any criminal investigator of the United States Department of Labor; any special agent of the United States Naval Criminal Investigative Service, any special agent of the National Aeronautics and Space Administration, and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 ; any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing, shall be a conservator of the peace, while engaged in the performance of their official duties.

(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495; 1978, c. 697; 1981, cc. 572, 587; 1990, c. 558; 1991, cc. 74, 338; 1994, cc. 375, 569, 626; 1997, c. 34; 2001, cc. 3, 31; 2002, cc. 86, 605, 789; 2004, c. 1009; 2005, c. 372; 2006, c. 88; 2007, c. 224; 2015, cc. 75, 126; 2017, c. 674.)

Cross references. - As to inclusion of special conservators of the peace or special policemen in definition of "Criminal Justice Agency" under Chapter 9.1, see § 9.1-101 .

The 2001 amendments. - The 2001 amendment by cc. 3 and 31 are identical, and inserted "Department of Defense" following "Department of Agriculture," deleted "and" following "Postal Inspection Service," and made minor punctuation changes.

The 2002 amendments. - The 2002 amendment by c. 86 inserted "Office of the Inspector General of the Department of Transportation" in the second sentence.

The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, inserted "any criminal investigator of the Department of Professional and Occupational Regulation. . . for in-service training" in the second sentence.

The 2002 amendment by c. 789 substituted "Virginia Marine Police" for "Virginia Marine Patrol" in the second sentence.

The 2004 amendments. - The 2004 amendment by c. 1009 inserted "Department of Homeland Security."

The 2005 amendments. - The 2005 amendment by c. 372 inserted "and attorney for the Commonwealth" in the first sentence.

The 2006 amendments. - The 2006 amendment by c. 88, in the last sentence, inserted "and any special agent of the National Aeronautics and Space Administration" and made a related change.

The 2007 amendments. - The 2007 amendment by c. 224 inserted "and any sworn municipal park ranger, who has completed all requirements under § 15.2-1706 " near the end of the section, and made a related change.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal."

The 2017 amendments. - The 2017 amendment by c. 674 inserted "any investigator employed by an attorney for the Commonwealth, who within 10 years immediately prior to being employed by the attorney for the Commonwealth was an active law-enforcement officer as defined in § 9.1-101 in the Commonwealth and retired or resigned from his position as a law-enforcement officer in good standing" in the last sentence.

§ 19.2-13. Special conservators of the peace; authority; jurisdiction; registration; liability of employers; penalty; report.

1. Upon the submission of an application, which shall include the results of the background investigation conducted pursuant to subsection C, from (i) any sheriff or chief of police of any county, city, or town; (ii) any corporation authorized to do business in the Commonwealth; (iii) the owner, proprietor, or authorized custodian of any place within the Commonwealth; or (iv) any museum owned and managed by the Commonwealth, a circuit court judge of any county or city shall appoint special conservators of the peace who shall serve as such for such length of time as the court may designate, but not exceeding four years under any one appointment, during which time the court shall retain jurisdiction over the appointment order, upon a showing by the applicant of a necessity for the security of property or the peace and presentation of evidence that the person or persons to be appointed as a special conservator of the peace possess a valid registration issued by the Department of Criminal Justice Services in accordance with the provisions of subsection C. Upon an application made pursuant to clause (ii), (iii), or (iv), the court shall, prior to entering the order of appointment, transmit a copy of the application to the local attorney for the Commonwealth and the local sheriff or chief of police who may submit to the court a sworn, written statement indicating whether the order of appointment should be granted. However, a judge may deny the appointment for good cause, and shall state the specific reasons for the denial in writing in the order denying the appointment. A judge also may revoke the appointment order for good cause shown, upon the filing of a sworn petition by the attorney for the Commonwealth, sheriff, or chief of police for any locality in which the special conservator of the peace is authorized to serve or by the Department of Criminal Justice Services. Prior to revocation, a hearing shall be set and the special conservator of the peace shall be given notice and the opportunity to be heard. The judge may temporarily suspend the appointment pending the hearing for good cause shown. A hearing on the petition shall be heard by the court as soon as practicable. If the appointment order is suspended or revoked, the clerk of court shall notify the Department of Criminal Justice Services, the Department of State Police, the applicable local law-enforcement agencies in all cities and counties where the special conservator of the peace is authorized to serve, and the employer of the special conservator of the peace. The order of appointment shall provide that a special conservator of the peace may perform only the duties for which he is qualified by training as established by the Criminal Justice Services Board. The order of appointment shall provide that such duties shall be exercised only within geographical limitations specified by the court, which shall be within the confines of the county, city or town that makes application or on the real property where the corporate applicant is located, or any real property contiguous to such real property, limited, except as provided in subsection F, to the city or county wherein application has been made, and only when such special conservator of the peace is engaged in the performance of his duties as such; however, a court may, in its discretion, specify in the order of appointment additional jurisdictions in which a special conservator of the peace employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may exercise his duties. The order may provide that the special conservator of the peace shall have the authority to make an arrest outside of such geographical limitations if the arrest results from a close pursuit that was initiated when the special conservator of the peace was within the confines of the area wherein he has been authorized to have the powers and authority of a special conservator of the peace; the order shall further delineate a geographical limitation or distance beyond which the special conservator of the peace may not effectuate such an arrest that follows from a close pursuit. The order shall require the special conservator of the peace to comply with the provisions of the United States Constitution and the Constitution of Virginia. The order shall not identify the special conservator of the peace as a law-enforcement officer pursuant to § 9.1-101 . The order may provide, however, that the special conservator of the peace is a "law-enforcement officer" for the purposes of Article 4 (§ 37.2-808 et seq.) of Chapter 8 of Title 37.2 or Article 16 (§ 16.1-335 et seq.) of Chapter 11 of Title 16.1, but such designation shall not qualify the special conservator of the peace as a "qualified law-enforcement officer" or "qualified retired law-enforcement officer" within the meaning of the federal Law Enforcement Officer Safety Act, 18 U.S.C. § 926(B) et seq., and the order of appointment shall specifically state this. The order may also provide that a special conservator of the peace who has completed the minimum training standards established by the Criminal Justice Services Board, has the authority to affect arrests, using up to the same amount of force as would be allowed to a law-enforcement officer employed by the Commonwealth or any of its political subdivisions when making a lawful arrest. The order shall prohibit blue flashing lights, but upon request and for good cause shown may provide that the special conservator of the peace may use flashing lights and sirens on any vehicle used by the special conservator of the peace when he is in the performance of his duties. Prior to granting an application for appointment, the circuit court shall ensure that the applicant has met the registration requirements established by the Criminal Justice Services Board.
2. All applications and orders for appointments of special conservators of the peace shall be submitted on forms developed by the Office of the Executive Secretary of the Supreme Court of Virginia in consultation with the Department of Criminal Justice Services and shall specify the duties for which the applicant is qualified. The applications and orders shall specify the geographic limitations consistent with subsection A.
3. No person shall seek appointment as a special conservator of the peace from a circuit court judge without possessing a valid registration issued by the Department of Criminal Justice Services, except as provided in this section. Applicants for registration may submit an application on or after January 1, 2004. A temporary registration may be issued in accordance with regulations established by the Criminal Justice Services Board while awaiting the results of a state and national fingerprint search. However, no person shall be issued a valid registration or temporary registration until he has (i) complied with, or been exempted from the compulsory minimum training standards as set forth in this section; (ii) submitted his fingerprints on a form provided by the Department to be used for the conduct of a national criminal records search and a Virginia criminal history records search; (iii) submitted the results of a background investigation, performed by any state or local law-enforcement agency, which may, at its discretion, charge a reasonable fee to the applicant and which shall include a review of the applicant's criminal history records and may include a review of the applicant's school records, employment records, or interviews with persons possessing general knowledge of the applicant's character and fitness for such appointment; and (iv) met all other requirements of this article and Board regulations. No person with a criminal conviction for a misdemeanor involving (a) moral turpitude, (b) assault and battery, (c) damage to real or personal property, (d) controlled substances or imitation controlled substances as defined in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, (e) prohibited sexual behavior as described in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or (f) firearms, or any felony, or who is required to register with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or who is prohibited from possessing, transporting, or purchasing a firearm shall be eligible for registration or appointment as a special conservator of the peace. A special conservator of the peace shall report if he is arrested for, charged with, or convicted of any misdemeanor or felony offense or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection to the Department of Criminal Justice Services and the chief law-enforcement officer of all localities in which he is authorized to serve within three days of such arrest or of becoming ineligible for registration or appointment as a special conservator of the peace. Any appointment for a special conservator of the peace shall be eligible for suspension and revocation after a hearing pursuant to subsection A if the special conservator of the peace is convicted of any offense listed in this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection. All appointments for special conservators of the peace shall become void on September 15, 2004, unless they have obtained a valid registration issued by the Department of Criminal Justice Services.
4. Each person registered as or seeking registration as a special conservator of the peace shall be covered by evidence of a policy of (i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board, or self-insurance in an amount and with coverage as fixed by the Board. Any person who is aggrieved by the misconduct of any person registered as a special conservator of the peace and recovers a judgment against the registrant, which is unsatisfied in whole or in part, may bring an action in his own name against the insurance policy of the registrant.
5. Effective July 1, 2015, all persons currently appointed or seeking appointment or reappointment as a special conservator of the peace are required to register with the Department of Criminal Justice Services, regardless of any other standing the person may have as a law-enforcement officer or other position requiring registration or licensure by the Department. The employer of any special conservator of the peace shall notify the circuit court, the Department of Criminal Justice Services, the Department of State Police, and the chief law-enforcement officer of all localities in which the special conservator of the peace is authorized to serve within 30 days after the date such individual has left employment and all powers of the special conservator of the peace shall be void. Failure to provide such notification shall be punishable by a fine of $250 plus an additional $50 per day for each day such notice is not provided.
6. When the application is made by any sheriff or chief of police, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the geographic jurisdiction of the special conservator of the peace. Such appointments shall be limited to the city or county wherein application has been made. When the application is made by any corporation authorized to do business in the Commonwealth, any owner, proprietor, or authorized custodian of any place within the Commonwealth, or any museum owned and managed by the Commonwealth, the circuit court shall specify in the order of appointment the name of the applicant authorized under subsection A and the specific real property where the special conservator of the peace is authorized to serve. Such appointments shall be limited to the specific real property within the county, city, or town wherein application has been made. In the case of a corporation or other business, the court appointment may also include, for good cause shown, any real property owned or leased by the corporation or business, including any subsidiaries, in other specifically named cities and counties, but shall provide that the powers of the special conservator of the peace do not extend beyond the boundaries of such real property. The clerk of the appointing circuit court shall transmit to the Department of State Police, the clerk of the circuit court of each locality where the special conservator of the peace is authorized to serve, and the sheriff or chief of police of each such locality a copy of the order of appointment that shall specify the following information: the person's complete name, address, date of birth, social security number, gender, race, height, weight, color of hair, color of eyes, firearm authority or limitation as set forth in subsection G, date of the order, and other information as may be required by the Department of State Police. The Department of State Police shall enter the person's name and other information into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52. The Department of State Police may charge a fee not to exceed $10 to cover its costs associated with processing these orders. Each special conservator of the peace so appointed on application shall present his credentials to the chief of police or sheriff or his designee of all jurisdictions where he has conservator powers. If his powers are limited to certain areas of real property owned or leased by a corporation or business, he shall also provide notice of the exact physical addresses of those areas. Each special conservator shall provide to the circuit court a temporary registration letter issued by the Department of Criminal Justice Services to include the results of the background check prior to seeking an appointment by the circuit court. Once the applicant receives the appointment from the circuit court the applicant shall file the appointment order and a copy of the application with the Department of Criminal Justice Services in order to receive his special conservator of the peace registration document. If the court appointment includes any real property owned or leased by the corporation or business in other specifically named cities and counties not within the city or county wherein application has been made, the clerk of the appointing court shall transmit a copy of the order of appointment to (i) the clerk of the circuit court for each jurisdiction where the special conservator of the peace is authorized to serve and (ii) the sheriff or chief of police of each jurisdiction where the special conservator of the peace is authorized to serve. If any such special conservator of the peace is the employee, agent or servant of another, his appointment as special conservator of the peace shall not relieve his employer, principal or master from civil liability to another arising out of any wrongful action or conduct committed by such special conservator of the peace while within the scope of his employment. Effective July 1, 2002, no person employed by a local school board as a school security officer, as defined in § 9.1-101 , shall be eligible for appointment as a conservator for purposes of maintaining safety in a public school in the Commonwealth. All appointments of special conservators of the peace granted to school security officers as defined in § 9.1-101 prior to July 1, 2002 are void.
7. The court may limit or prohibit the carrying of weapons by any special conservator of the peace initially appointed on or after July 1, 1996, while the appointee is within the scope of his employment as such.
8. The governing body of any locality or the sheriff of a county where no police department has been established may enter into mutual aid agreements with any entity employing special conservators of the peace that is located in such locality for the use of their joint forces and their equipment and materials to maintain peace and good order. Any law-enforcement officer or special conservator of the peace, while performing his duty under any such agreement, shall have the same authority as lawfully conferred on him within his own jurisdiction.
9. No special conservator of the peace shall display or use the word "police" on any uniform, badge, credential, or vehicle in the performance of his duties as a special conservator of the peace. Other than special conservators of the peace employed by a state agency, no special conservator of the peace shall use the seal of the Commonwealth on any uniform, badge, credential, or vehicle in the performance of his duties. However, upon request and for good cause shown, the order of appointment may provide that a special conservator of the peace who (i) meets all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 (§ 9.1-100 et seq.) of Title 9.1 and (ii) is employed by the Shenandoah Valley Regional Airport Commission or the Richmond Metropolitan Transportation Authority may use the word "police" on any badge, uniform, or vehicle in the performance of his duties or the seal of the Commonwealth on any badge or credential in the performance of his duties. (Code 1950, § 19.1-28; 1960, c. 366; 1974, cc. 44, 45; 1975, c. 495; 1976, c. 220; 1982, c. 523; 1989, c. 455; 1996, cc. 850, 956; 2001, c. 249; 2002, cc. 605, 836, 868; 2003, c. 922; 2004, c. 401; 2005, c. 498; 2006, c. 290; 2007, cc. 380, 481; 2008, c. 795; 2010, cc. 530, 778, 825; 2013, cc. 105, 122; 2015, cc. 602, 766, 772; 2016, c. 551; 2017, c. 494; 2018, c. 792.)

Cross references. - As to special conservators of the peace, see § 9.1-150.1 et seq.

Editor's note. - Acts 2003, c. 922, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2015, cc. 766 and 772, cl. 2 provides: "That the Office of the Executive Secretary of the Supreme Court of Virginia shall establish reasonable judicial training regarding the use of application forms for the appointment of special conservators of the peace and the powers that may be granted in appointment orders to special conservators of the peace."

Acts 2015, cc. 766 and 772, cl. 3 provides: "That any existing special conservator of the peace appointed under a court order in effect on July 1, 2015, has 36 months to comply with the new compulsory, minimum, entry-level training standards and requirements as may be established pursuant to this act following his appointment."

Acts 2018, c. 792, cl. 2 provides: "That special conservators of the peace employed on July 1, 2018, by the Shenandoah Regional Airport Commission or the Richmond Metropolitan Transportation Authority who do not meet all requirements, including the minimum compulsory training requirements, for law-enforcement officers set forth in Chapter 1 ( § 9.1-100 et seq.) of Title 9.1 of the Code of Virginia may, in accordance with the provisions of this act, continue to use the word 'police' on any badge, uniform, or vehicle in the performance of their duties or the seal of the Commonwealth on any badge or credential in the performance of their duties until July 1, 2020."

The 2001 amendments. - The 2001 amendment by c. 249, in the first sentence of subsection A, substituted "a circuit court judge" for "the circuit court," and substituted "his discretion" for "its discretion."

The 2002 amendments. - The 2002 amendment by c. 605, effective July 1, 2003, rewrote the second paragraph of subsection A.

The 2002 amendments by cc. 836 and 868 are identical, and added the last paragraph in subsection A.

The 2003 amendments. - The 2003 amendment by c. 922 rewrote the section.

The 2004 amendments. - The 2004 amendment by c. 401 added the last sentence in subsection B; and in subsection E, in the first paragraph, inserted the present fifth sentence, substituted "temporary registration letter issued by the Department of Criminal Justice Services prior to seeking an appointment by the circuit court" for "photocopy of his conservator identification card" in the present seventh sentence, deleted the former seventh sentence, which read: "The Department of State Police may charge a fee not to exceed $10 to cover its cost associated with processing these orders," and added the last sentence.

The 2005 amendments. - The 2005 amendment by c. 498 deleted "special" following "of any other" in the second sentence of subsection A, in subsection D, deleted "or private police officers" in the first sentence, inserted the present second sentence, inserted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" to the end of the second sentence in subsection E and made a minor stylistic change.

The 2006 amendments. - The 2006 amendment by c. 290 inserted the fifth sentence in subsection A.

The 2007 amendments. - The 2007 amendments by cc. 380 and 481 are identical, and inserted "except as provided in subsection E," in the second sentence of subsection A; and in subsection E, inserted "business or other applicant" near the end of the first sentence, deleted "and to those cities and counties wherein the corporate applicant or its subsidiary holds title to real property" at the end of the second sentence, added the present third sentence, substituted "all jurisdictions where he has conservator powers" for "the jurisdiction" at the end of the seventh sentence, and added the present eighth sentence.

The 2008 amendments. - The 2008 amendment by c. 795, in subsection A, deleted "and the showing of a necessity for the security of property or the peace" following "within the Commonwealth," substituted "or city shall appoint special" for "or city, in his discretion, may appoint one or more special" and added the language beginning "upon a showing by the applicant" to the end of the first sentence and inserted the second sentence.

The 2010 amendments. - The 2010 amendment by c. 530 inserted "The order may also provide that the special conservator of the peace is authorized to use the seal of the Commonwealth in a badge or other credential of office as the court may deem appropriate." in subsection A.

The 2010 amendments by cc. 778 and 825 are identical, and inserted "or Article 16 ( § 16.1-335 et seq.) of Chapter 11 of Title 16.1" in subsection A.

The 2013 amendments. - The 2013 amendments by cc. 105 and 122 are identical, and near the beginning of the first sentence of subsection A, inserted the clause (i), (ii), and (iii) designators and clause (iv), and made related changes; and in subsection E, substituted "name of the applicant authorized under subsection A and" for "name of the sheriff or chief of police of the applicant county, city, town or the name of the corporation, business or other applicant authorized under subsection A and."

The 2015 amendments. - The 2015 amendment by c. 602 in subsection A, inserted "during which time the court shall retain jurisdiction over the appointment order" in the first sentence and added the third through sixth sentences; and in subsection B, substituted "or (f) firearms, or for" for "(f) firearms, or (g)" in the fifth sentence and added the sixth sentence.

The 2015 amendments by cc. 766 and 772 are identical, and rewrote the section.

The 2016 amendments. - The 2016 amendment by c. 551, in subsection A, substituted "the background investigation conducted pursuant to subsection C" for "a background investigation"; in subsection C, inserted "valid registration," substituted "shall include" for "may include," and inserted "criminal history records and may include a review of the applicant's" in the fourth sentence, inserted "or who is prohibited from possessing, transporting, or purchasing a firearm" in the fifth sentence, inserted "or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection," and "or of becoming ineligible for registration or appointment as a special conservator of the peace" in the sixth sentence, and substituted "this subsection or becomes ineligible for registration or appointment as a special conservator of the peace pursuant to this subsection" for "clauses (a) through (f) or of any felony" in the next to last sentence.

The 2017 amendments. - The 2017 amendment by c. 494 substituted "(i) personal injury liability insurance, as defined in § 38.2-117 ; (ii) property damage liability insurance, as defined in § 38.2-118 ; and (iii) miscellaneous casualty insurance, as defined in subsection B of § 38.2-111 , which includes professional liability insurance that provides coverage for any activity within the scope of the duties of a special conservator of the peace as set forth in this section, in an amount and with coverage for each as fixed by the Board" for "liability insurance" in the first sentence of subsection D.

The 2018 amendments. - The 2018 amendment by c. 792 rewrote the second paragraph of subsection A; and added subsection I.

Research References. - Virginia Forms (Matthew Bender). No. 9-4400. Petition and Order for Appointment of Special Conservator of the Peace.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

OPINIONS OF THE ATTORNEY GENERAL

Private police officers. - The term "private police officers" in subsection D of this section refers to the category of officers appointed for the purposes described in subsection A; therefore, private police officers, who constitute special conservators of the peace and meet the training standards established by the Criminal Justice Services Board, are exempt from registration and bonding requirements. See opinion of Attorney General to The Honorable Emmett W. Hanger Jr., Member, Senate of Virginia, 04-059 (9/7/04).

Property owners' association stopping vehicles. - A property owners' association may not compel a vehicle driver to stop, unless done by a local law enforcement agency or by a private security service that is properly licensed by the Department of Criminal Justice Services, and whose employees have also been appointed as conservators of the peace. To enforce traffic laws on privately owned streets, a property owners' association may request the local law enforcement agency to do so, or the local governing body may designate the private streets as "highways" for law enforcement purposes. See opinion of Attorney General to The Honorable Bryce E. Reeves, Member, Senate of Virginia, No. 13-106, 2014 Va. AG LEXIS 28 (8/13/14).

Private police departments. - The 2015 amendment to § 9.1-101 effectively confers law-enforcement authority to employees of authorized private police departments, but only if those employees comply with all applicable requirements of the Department of Criminal Justice Services. See opinion of Attorney General to The Honorable David J. Toscano, Member, House of Delegates, 15-083, 2016 Va. AG LEXIS 22 (9/9/16).

Armed special conservator of the peace for school safety purposes. - Virginia law requires a temporary registration issued by Department of Criminal Justice Services prior to a circuit court order appointing a qualified individual as a special conservator of the peace and also a valid registration after the circuit court enters an order of appointment. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

Department of Criminal Justice Services cannot issue a temporary registration letter or valid registration document to a special conservator of the peace applicant seeking to possess firearms on school property because special conservators of the peace are not legally authorized to carry firearms on school property. See opinion of Attorney General to Ms. Shannon Dion, Director, Virginia Department of Criminal Justice Services, 18-042, 2018 Va. AG LEXIS 11 (8/28/2018).

§ 19.2-13.1. Application for special conservator of the peace by locality.

No official or employee of a school board or county, city, or town, its departments, or its agents shall submit an application for the appointment of a special conservator of the peace without attaching a written assessment from the chief law-enforcement officer of the locality stating the need for the appointment and recommending any limitations that should be included in the order of appointment to the application submitted to the court pursuant to subsection A of § 19.2-13 .

(2016, c. 416.)

§ 19.2-14. Conservators of the peace for fairgrounds and cemeteries; bond required.

The superintendent or other person in charge of any fairgrounds or any public or private cemetery shall, for the purpose of maintaining order and enforcing the criminal and police laws of the Commonwealth, or the county or city in which such fairgrounds or cemetery is situated, have all the powers, functions, duties, responsibilities and authority of a conservator of the peace within the fairgrounds or cemetery over which he may have charge and within one-half of a mile around the same.

The provisions of § 19.2-13 relative to the giving of bond and the liability of an employer, principal or master, shall be applicable to every person exercising any powers of a conservator of the peace under this section.

(Code 1950, § 19.1-32; 1960, c. 366; 1975, c. 495.)

§ 19.2-15. When conservator appointed under § 19.2-13 need not be a citizen.

Any such conservator appointed under the provisions of § 19.2-13 whose jurisdiction is limited to the grounds attached to an airport, need not be a citizen of the Commonwealth if the proprietors of such airport shall, before any such conservator shall enter upon the duties of the office, enter into bond with approved surety before the clerk of the circuit court having jurisdiction over such airport in the penalty of $1,000 for each conservator so appointed, with condition for the faithful discharge of his official duties.

(Code 1950, § 19.1-29; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

§ 19.2-16.

Repealed by Acts 1994, c. 205.

Editor's note. - Acts 1994, c. 205, cl. 2, provides that all commissions or appointments of conservators of the peace pursuant to this section shall be null and void except for appointment of persons currently employed by the Department of Conservation and Recreation. Any Commission or appointment issued pursuant to this section to persons currently employed by the Department of Conservation and Recreation shall continue in full force and effect until it is replaced by a conservation officer commission issued pursuant to § 10.1-115 or until the individual ceases to be employed by the Department.

§ 19.2-17.

Repealed by Acts 1996, c. 850.

§ 19.2-18. Powers and duties generally.

Every conservator of the peace shall have authority to arrest without a warrant in such instances as are set out in §§ 19.2-19 and 19.2-81 . Upon making an arrest without a warrant, the conservator of the peace shall proceed in accordance with the provisions of § 19.2-22 or § 19.2-82 as the case may be.

(Code 1950, § 19.1-20; 1960, c. 366; 1968, c. 639; 1972, c. 549; 1975, c. 495.)

Cross references. - For provision appointing directors of state hospitals and other hospital employees as conservators, see § 37.2-426 .

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 1. Courts. § 1.05 District Courts. Friend.

§ 19.2-19. Recognizance to keep the peace; when required.

If any person threatens to kill or injure another or to commit violence or injury against his person or property, or to unlawfully trespass upon his property, he shall be required to give a recognizance to keep the peace for such period not to exceed one year as the court hearing the complaint may determine.

(Code 1950, §§ 19.1-26, 19.1-27; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

§ 19.2-20. Same; complaint and issuance of warrant therefor.

If complaint be made to any magistrate or judge that a person should be required to give a recognizance to keep the peace due to any of the reasons set forth in § 19.2-19 , such magistrate or judge shall examine on oath the complainant, and any witness who may be produced, reduce the complaint to writing, and cause it to be signed by the complainant; and if probable cause is established, such magistrate or judge shall issue a warrant, reciting the complaint, and requiring the person complained of forthwith to be apprehended and brought before the district court having appropriate jurisdiction.

(Code 1950, § 19.1-21; 1960, c. 366; 1975, c. 495; 1978, c. 500; 1979, c. 708.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 8; 3A M.J. Breach of the Peace, § 7; 4C M.J. Constitutional Law, § 141.

§ 19.2-21. Same; procedure when accused appears.

When such person appears, if the judge, on hearing the parties, considers that there is not good cause for the complaint, he shall discharge such person, and may give judgment in his favor against the complainant for his costs. If he considers that there is good cause therefor, he may require a recognizance of the person against whom it is, and give judgment against him for the costs of the prosecution, or any part thereof; and, unless such recognizance be given, he shall commit him to jail by a warrant, stating the sum and time in and for which the recognizance is directed. The person given judgment under this section for costs may issue a writ of fieri facias thereon, if an appeal be not allowed; and proceedings thereupon may be according to §§ 16.1-99 through 16.1-101.

(Code 1950, § 19.1-22; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

§ 19.2-22. Same; arrest without a warrant.

A person arrested without a warrant by any conservator of the peace or other law-enforcement officer for any of the acts set forth in § 19.2-19 committed in the presence of such conservator of the peace or law-enforcement officer, shall be brought forthwith before a magistrate or judge, and proceedings shall be had in accordance with §§ 19.2-20 and 19.2-21 .

(1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 5.

§ 19.2-23. Payment of fees or mileage allowances into county or city treasury.

Any conservator or policeman appointed under the provisions of this chapter shall not be entitled to fees or mileage for performance of his duties as such conservator or policeman.

(Code 1950, § 19.1-31; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Aviation, § 1.

§ 19.2-24. When appeal may be taken; witnesses recognized; bail.

Any person from whom a recognizance is required under the provisions of this chapter or who has been committed to jail for failure to give security therefor, may appeal to the circuit court of the county or city, and, in such case, the judge from whose judgment the appeal is taken shall recognize such of the witnesses as he thinks proper; provided, however, that the person taking the appeal may be required to give bail, with good security, for his appearance at the circuit court of the county or city.

(Code 1950, § 19.1-23; 1960, c. 366; 1975, c. 495; 1978, c. 500.)

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 17. Subpoenas and Witnesses. § 17.02 Subpoena of Witnesses. Friend.

§ 19.2-25. Power of court on appeal.

The court may dismiss the complaint or affirm the judgment, and make what order it sees fit as to the costs. If it award costs against the appellant, the recognizance which he may have given shall stand as security therefor. When there is a failure to prosecute the appeal, such recognizance shall remain in force, although there be no order of affirmance. On any appeal the court may require of the appellant a new recognizance if it see fit.

Any person committed to jail under this chapter may be discharged by the circuit court of the county or city on such terms as it may deem reasonable.

(Code 1950, §§ 19.1-24, 19.1-25; 1960, c. 366; 1975, c. 495.)

§ 19.2-26. Repeal of inconsistent statutes, municipal charters, etc.

All acts and parts of acts, all sections of this Code, and all provisions of municipal charters, inconsistent with the provisions of this title, are, except as herein otherwise provided, repealed to the extent of such inconsistency.

(Code 1950, § 19.1-374; 1973, c. 545; 1975, c. 495.)

§ 19.2-27. Effect of repeal of Title 39.1 on prior acts, offenses, etc.

The repeal of Title 39.1 effective as of January 1, 1974, shall not affect any act or offense done or committed or any penalty or forfeiture incurred, or any right established, accrued, or accruing on or before such date, or any prosecution, suit or action pending on that day.

(Code 1950, § 19.1-375; 1973, c. 545; 1975, c. 495.)

§ 19.2-28. Certain notices, recognizances and processes validated.

Any notice given, recognizance taken, or process or writ issued, before January 1, 1974, shall be valid although given, taken or to be returned to a day after such date, in like manner as if this title had been effective before the same was given, taken or issued.

(Code 1950, § 19.1-376; 1973, c. 545; 1975, c. 495.)

§ 19.2-29. References to former sections, articles and chapters in Title 39.1.

Whenever in Chapter 3 (§ 19.2-26 et seq.) of this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 39.1, as such title existed prior to January 1, 1974, are transferred in the same or modified form to a new section, article or chapter, and whenever any such former section, article or chapter is given a new number in Chapter 3 of this title all references to any such former section, article or chapter of Title 39.1 appearing elsewhere in this Code than in Chapter 3 of this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(Code 1950, § 19.1-377; 1973, c. 545; 1975, c. 495; 2002, c. 310.)

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.) of this title" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.) of this title," and twice substituted "Chapter 3 of this title" for "Chapters 3 and 4 of this title."

§ 19.2-30.

Repealed by Acts 2008, cc. 551 and 691, cl. 2.

§ 19.2-31. Abolition of office of issuing justice.

Effective January 1, 1974, the office of issuing justice as provided for in Chapter 2 (§ 39.1-20 et seq.) of Title 39.1 having been abolished, nevertheless, any such special justice of the peace in office December 31, 1973, and elected by the town council for a specific term to expire after that date, may continue in office for the remainder of that term. If he continues in office as provided herein, such justice shall exercise the same powers, perform the same duties, and receive such compensation as he was receiving as of December 31, 1973.

(Code 1950, § 19.1-379; 1973, c. 545; 1975, c. 495.)

Cross references. - For provisions as to magistrates, see § 19.2-33 et seq.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-32. References to justices of the peace.

References in law to justices of the peace shall be deemed to apply to magistrates unless the provisions of Chapter 3 (§ 19.2-26 et seq.) of this title shall render such reference inapplicable.

(Code 1950, § 19.1-380; 1973, c. 545; 1975, c. 495; 2002, c. 310.)

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)."

§ 19.2-33. Office of magistrate.

The office of magistrate shall be vested with all the authority, duties and obligations previously vested in the office of justice of the peace prior to January 1, 1974.

(Code 1950, § 19.1-381; 1973, c. 545; 1975, c. 495.)

Cross references. - For provisions concerning compensation of magistrates, see § 19.2-46 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Execution of orders subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons. - When a magistrate orders a law-enforcement agency to execute an order subjecting a person to emergency custody under § 37.2-808 , or temporary detention under § 37.2-810 , or providing for the transportation of such persons, the magistrate should specify the police department of the town as the "primary law-enforcement agency of the jurisdiction" when a town is served by its own police department. If the town is not served by its own police department, the sheriff's office of the surrounding county is tasked with executing such orders and with transporting persons subject to such orders. See opinion of Attorney General to Karen T. Mullins, Esquire, County Attorney, Wise County, 11-123, 2011 Va. AG LEXIS 44 (10/21/11).

§ 19.2-34. Number of magistrates.

There shall be appointed as many magistrates as are necessary for the effective administration of justice. The positions of all employees of the magistrate system shall be authorized by the Committee on District Courts established pursuant to § 16.1-69.33.

(Code 1950, § 19.1-382; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1977, c. 198; 1981, c. 4; 1992, c. 55; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted "for each judicial district" following "shall be appointed," and deleted "such magistrates and any other personnel in the office of the magistrates" following "administration of justice" in the first sentence, and inserted "The positions of all employees of the magistrate system" in the second sentence.

§ 19.2-35. Appointment; supervision generally.

Magistrates and any other personnel in the office of the magistrate shall be appointed by the Executive Secretary of the Supreme Court of Virginia in consultation with the chief judges of the circuit courts having jurisdiction within the region. Each magistrate shall be appointed to serve one or more of the magisterial regions created by the Executive Secretary. Each magisterial region shall be comprised of one or more judicial districts. The Executive Secretary shall have full supervisory authority over the magistrates so appointed. Notwithstanding any other provision of law, the only methods for the selection of magistrates shall be as set out in this section.

No person shall be appointed under this section until he has submitted his fingerprints to be used for the conduct of a national criminal records search and a Virginia criminal history records search. No person with a criminal conviction for a felony shall be appointed as a magistrate.

(Code 1950, § 19.1-383; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1981, c. 4; 1988, c. 511; 2002, c. 310; 2004, cc. 370, 452; 2008, cc. 551, 691.)

The 2002 amendments. - The 2002 amendment by c. 310, in the last sentence in the first paragraph, deleted "and special magistrates" following "selection of magistrates" and deleted "and Chapter 4 ( § 19.2-49 et seq.) of this title, respectively" at the end.

The 2004 amendments. - The 2004 amendment by c. 370, in the first paragraph, inserted the language beginning "in consultation with" at the end of the first sentence and twice inserted "court" in the third sentence; and in the second paragraph, in the first sentence, inserted "circuit court" and "in consultation with both ... of that district" in the first sentence.

The 2004 amendment by c. 452 added the last paragraph.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and rewrote the first paragraph, and deleted the second and third paragraphs relating to the appointment of substitute magistrates and replacement of magistrates due to absence.

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-36. Chief magistrates.

1. The Executive Secretary of the Supreme Court of Virginia may appoint chief magistrates, for the purpose of assisting in the training of the magistrates and being responsible to the Executive Secretary for the conduct of the magistrates and to further assist the Office of the Executive Secretary in the operation of one or more of the magisterial regions. The chief magistrate shall exercise direct daily supervision over the magistrates he supervises and shall have the power to suspend without pay a magistrate after consultation and with the concurrence of the Executive Secretary.
2. To be eligible for appointment as chief magistrate, a person shall meet all of the qualifications of a magistrate under § 19.2-37 and must be a member in good standing of the Virginia State Bar. His appointment as chief magistrate shall terminate effective on the date on which his membership in good standing ceases. The requirements of this subsection relating to membership in the Virginia State Bar shall not apply to any person appointed as a chief magistrate before July 1, 2008, who continues in that capacity without a break in service. (Code 1950, § 19.1-384; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1984, c. 37; 2004, c. 370; 2008, cc. 551, 691.)

The 2004 amendments. - The 2004 amendment by c. 370, in the first sentence, deleted "circuit" preceding "judge of a circuit" and inserted "court, in consultation with ... of that district" and twice inserted "court."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and inserted the subsection A designation, rewrote the first paragraph, and added subsection B.

§ 19.2-37. Magistrates; eligibility for appointment; restrictions on activities.

1. Any person who is a United States citizen and resident of the Commonwealth may be appointed to the office of magistrate under this title subject to the limitations of Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 and of this section.
2. Every person appointed as a magistrate on and after July 1, 2008, shall be required to have a bachelor's degree from an accredited institution of higher education. A person initially appointed as a magistrate prior to July 1, 2008, who continues in office without a break in service is not required to have a bachelor's degree from an accredited institution of higher education.
3. A person shall not be eligible for appointment as a magistrate under the provisions of this title: (a) if such person is a law-enforcement officer; (b) if such person or his spouse is a clerk, deputy or assistant clerk, or employee of any such clerk of a district or circuit court, provided that the Committee on District Courts may authorize a magistrate to assist in the district court clerk's office on a part-time basis; (c) if the parent, child, spouse, or sibling of such person is a district or circuit court judge in the magisterial region where he will serve; or (d) if such person is the chief executive officer, or a member of the board of supervisors, town or city council, or other governing body for any political subdivision of the Commonwealth.
4. No magistrate shall issue any warrant or process in complaint of his spouse, child, grandchild, parent, grandparent, parent-in-law, child-in-law, brother, sister, brother-in-law or sister-in-law, nephew, niece, uncle, aunt, first cousin, guardian or ward.
5. A magistrate may not engage in any other activity for financial gain during the hours that he is serving on duty as a magistrate. A magistrate may not be employed outside his duty hours without the prior written approval of the Executive Secretary.
6. No person appointed as a magistrate on or after July 1, 2008, may engage in the practice of law.
7. A magistrate who is designated as a marriage celebrant under § 20-25 may not accept a fee, a gratuity, or any other thing of value for exercise of authority as a marriage celebrant. (Code 1950, § 19.1-385; 1973, c. 545; 1975, c. 495; 1976, c. 138; 1978, cc. 463, 760; 1984, c. 41; 1985, c. 45; 1986, c. 202; 1996, c. 112; 1999, c. 267; 2004, c. 830; 2008, cc. 551, 691.)

The 1999 amendment substituted "or an adjoining judicial district" for "however, Arlington, Fairfax and Prince William Counties and the City of Alexandria may employ as magistrates persons residing in adjoining judicial districts" in clause (d) in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 830, in the first sentence, deleted "or his spouse" following "such person" in clause (a), and in clause (b), deleted "charged with the duty of enforcing any of the laws of this Commonwealth or any ordinance of any political subdivision thereof" following "or employee" and "or police department or sheriff's office in any county or city with respect to appointment to the office of magistrate of such county or city" following "of a district court."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and designated former first, second, and third paragraphs as subsections A, C, and D, respectively; added subsections B, E, F, and G; in subsection A, inserted "who is a United States citizen and resident of the Commonwealth"; rewrote subsection C; and in subsection D, deleted the last sentence, which read: "The residence provisions contained in this section shall not be a bar to the reappointment of any magistrate in office on July 1, 1973, provided he is otherwise eligible to serve under the provisions of this chapter."

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

OPINIONS OF THE ATTORNEY GENERAL

Warrant may not be issued to family member. - A magistrate may not issue a warrant to a sheriff who is a first cousin of the magistrate, but may issue a warrant to that sheriff's deputy. See opinion of Attorney General to The Honorable Claude Meinhard, Sheriff for Cumberland County, 00-036 (6/7/00).

§ 19.2-38. Probationary period; compensation and benefits; vacancies; revocation of appointment.

Persons appointed as magistrates under the provisions of this chapter shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period during which the magistrate must complete the minimum training program as established by the Committee on District Courts and satisfactorily complete a certification examination. Any magistrate who fails to successfully pass the certification examination shall not serve beyond the nine-month probationary period. The probationary period described in this section shall not apply to any magistrate serving on July 1, 2008, who has successfully completed the minimum training program and passed the certification examination, provided there is no break in service after July 1, 2008. Magistrates shall be entitled to compensation and other benefits only from the time they take office.

(Code 1950, § 19.1-386; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 505; 2004, c. 370; 2008, cc. 551, 691.)

Editor's note. - Acts 1996, cc. 755 and 914, cls. 3, provide: "[t]hat beginning July 1, 1996, the magistrate training program established by the Committee on District Courts pursuant to § 19.2-38 shall include a mandatory component addressing the issuance of warrants and detention orders in juvenile and family courts."

The 2004 amendments. - The 2004 amendment by c. 370 deleted the former fifth sentence, which read: "Vacancies shall be filled for the unexpired term by the chief circuit judge," and inserted "court" in the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "shall serve at the pleasure of the Executive Secretary. Upon appointment by the Executive Secretary, every magistrate shall serve initially for a nine-month probationary period" for "shall serve for a term of four years. Such term shall commence upon appointment and qualification, provided that any magistrate appointed for the first time to any term commencing after July 1, 1980, shall serve initially for a six-month probationary period" in the first two sentences, substituted the third sentence for "Failure to successfully pass the certification examination shall preclude the magistrate from serving beyond the six-month probationary period," inserted the fourth sentence, and deleted the last sentence, which read: "Appointments made under the provisions of this chapter shall be revocable at the pleasure of the chief circuit court judge."

§ 19.2-38.1. Training standards; training prerequisite to reappointment; waiver.

The Committee on District Courts shall establish minimum training and certification standards for magistrates in accordance with such rules and regulations as may be established by the Committee. Every magistrate shall comply with these standards and shall complete the minimum training standards as a prerequisite for continuing to serve as magistrate beyond the nine-month probationary period as established by § 19.2-38 . The Committee on District Courts upon request may waive any portion of the minimum training standards for an individual magistrate.

(1980, c. 505; 1985, c. 132; 1995, c. 611; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and rewrote the section.

§ 19.2-39. Bond.

Every magistrate appointed under the provisions of this chapter shall enter into bond in the sum of $5,000, made payable to the Commonwealth, before a clerk of a circuit court, for the faithful performance of his duties. The premium for such bond shall be paid by the Commonwealth. Provided, however, that in lieu of specific bonds, the Committee on District Courts may in its discretion procure faithful performance of duty blanket bonds for all magistrates and for the penalty contained in this section, unless in the discretion of the Committee, bonds with a larger penalty should be obtained. Such blanket bonds shall be made payable to the Commonwealth and shall cover all funds handled by a magistrate whether such funds belong to the Commonwealth or any political subdivision thereof. Provided further, that in those instances where specific bonds for magistrates are in effect, the Committee on District Courts may, whenever it deems it advisable, terminate such specific bonds upon obtaining a blanket bond covering such magistrates with appropriate refunds or credit being made for the unearned premiums on the specific bonds terminated. A copy of any such blanket bond so procured shall be filed with the State Comptroller and with the clerk of the respective circuit courts. The premiums for such blanket bonds shall be paid by the Commonwealth.

(Code 1950, § 19.1-387; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "before a clerk of a circuit court" for "before the clerk of the circuit court which exercises jurisdiction over the political subdivision wherein such magistrate shall serve" in the first sentence, substituted "blanket bonds for all magistrates" for "blanket bonds for any or all of the districts enumerated in § 16.1-69.6 covering all magistrates included in such districts" in the third sentence, and substituted "respective circuit courts" for "respective circuit court which exercises jurisdiction over the district wherein such magistrate shall serve" in the sixth sentence.

§ 19.2-40.

Repealed by Acts 1980, c. 758.

Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.

§ 19.2-41.

Repealed by Acts 2008, cc. 551 and 691, cl. 2.

§ 19.2-42.

Repealed by Acts 2004, c. 327.

§ 19.2-43. Duty of Executive Secretary of Supreme Court.

It shall be the duty of the Executive Secretary of the Supreme Court to exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct training sessions and meetings for magistrates and provide information and materials for their use. He may appoint one or more magistrates to assist him and, in addition, require annual reports to be filed by the magistrates on their work as such, fees associated therewith and other information pertinent to their office, on forms to be furnished by him. The Executive Secretary may appoint and employ such personnel as are needed to manage the magistrate system and carry out the duties and responsibilities conferred upon the Executive Secretary by this chapter.

(Code 1950, § 19.1-392; 1973, c. 545; 1974, c. 484; 1975, c. 495; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "exercise general supervisory power over the administration of magistrates and adopt such policies as are deemed necessary to supplement or clarify the provisions of this chapter with respect to such magistrates, to include fixing the time and place such magistrates shall serve. The Executive Secretary shall conduct" for "assist the chief general district judges and general district courts in the supervision and mandatory training of magistrates for which purpose he shall be authorized to conduct" in the first two sentences, deleted "with the approval of the Chief Justice" preceding "required annual reports" in the third sentence, and added the last sentence.

§ 19.2-44. Territorial jurisdiction.

A magistrate shall be authorized to exercise the powers conferred on magistrates by this title only in the magisterial region or regions for which he is appointed, except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 (§ 19.2-52 et seq.) throughout the Commonwealth. A magistrate may exercise all powers conferred on magistrates by this title throughout the Commonwealth when so authorized by the Executive Secretary upon a determination that such assistance is necessary.

(Code 1950, § 19.1-393; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 138; 1995, c. 551; 2008, cc. 551, 691; 2014, cc. 305, 310.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in the first sentence, inserted "be authorized to" preceding "exercise the powers" near the beginning and substituted "magisterial region or regions" for "judicial district" near the end; and in the second sentence, substituted "throughout the Commonwealth" for "in a contiguous political subdivision" and substituted "the Executive Secretary upon a determination that such assistance is necessary" for "his appointing authority and the chief circuit court judge of the district to which assistance is to be provided" at the end.

The 2014 amendments. - The 2014 amendments by cc. 305 and 310 are identical, and inserted "on magistrates" following "conferred" and "except that a magistrate may issue search warrants in accordance with the provisions of Chapter 5 ( § 19.2-52 et seq.) throughout the Commonwealth" following "appointed" in the first sentence and substituted "A" for "However, a" preceding "magistrate", "all" for "these" preceding "powers" and inserted "conferred on magistrates by this title" following "powers" in the second sentence.

§ 19.2-44.1.

Repealed by Acts 1976, c. 138.

Cross references. - For present provisions as to substitute magistrates, see § 19.2-35 .

§ 19.2-45. Powers enumerated.

A magistrate shall have the following powers only:

1. To issue process of arrest in accord with the provisions of §§ 19.2-71 to 19.2-82 of the Code;
2. To issue search warrants in accord with the provisions of §§ 19.2-52 to 19.2-60 of the Code;
3. To admit to bail or commit to jail all persons charged with offenses subject to the limitations of and in accord with general laws on bail;
4. The same power to issue warrants and subpoenas as is conferred upon district courts and as limited by the provisions of §§ 19.2-71 through 19.2-82 . A copy of all felony warrants issued at the request of a citizen shall be promptly delivered to the attorney for the Commonwealth for the county or city in which the warrant is returnable. Upon the request of the attorney for the Commonwealth, a copy of any misdemeanor warrant issued at the request of a citizen shall be delivered to the attorney for the Commonwealth for such county or city. All attachments, warrants and subpoenas shall be returnable before a district court;
5. To issue civil warrants directed to the sheriff or constable of the county or city wherein the defendant resides, together with a copy thereof, requiring him to summon the person against whom the claim is, to appear before a district court on a certain day, not exceeding 30 days from the date thereof to answer such claim. If there be two or more defendants and any defendant resides outside the jurisdiction in which the warrant is issued, the summons for such defendant residing outside the jurisdiction may be directed to the sheriff of the county or city of his residence, and such warrant may be served and returned as provided in § 16.1-80;
6. To administer oaths and take acknowledgments;
7. To act as conservators of the peace;
8. , (9) [Repealed.]

   (10) To perform such other acts or functions specifically authorized by law.

   (Code 1950, § 19.1-394; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1976, c. 471; 1977, c. 332; 1978, cc. 500, 605; 1985, c. 77; 2007, cc. 122, 373; 2008, cc. 551, 691; 2009, cc. 291, 344; 2018, c. 164.)

The 2007 amendments. - The 2007 amendments by cc. 122 and 373 are identical, and in subdivision (4), inserted the second sentence and substituted "All" for "Such" at the beginning of the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subdivision 4, deleted "within such county or city" following "warrants and subpoenas" in the first sentence, inserted the second sentence and substituted "misdemeanor warrant" for "criminal warrant" in the third sentence.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are identical, and in subsection (4), inserted "and as limited by the provisions of §§ 19.2-71 through 19.2-82 "; and in subsection (5), made a minor stylistic change.

The 2018 amendments. - The 2018 amendment by c. 164, in subsection 4, deleted "or any court of limited jurisdiction continued in operation pursuant to § 16.1-70.1" from the end.

§ 19.2-46. Compensation.

The salaries of all magistrates shall be fixed and paid as provided in § 19.2-46.1 . The salaries referred to herein shall be in lieu of all fees which may accrue to the recipient by virtue of his office.

(Code 1950, § 19.1-395; 1973, c. 545; 1974, c. 484; 1975, c. 495; 1980, c. 139; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted the former second paragraph, which read: "Each substitute magistrate shall receive for his services a per diem compensation as may be established by the Committee on District Courts."

Law review. - For survey of Virginia law on pleading and practice for the year 1972-1973, see 59 Va. L. Rev. 1559 (1973).

§ 19.2-46.1. Salaries to be fixed by the Executive Secretary; limitations; mileage allowance.

Salaries of magistrates and any other personnel in the office of the magistrate shall be fixed by the Executive Secretary of the Supreme Court. Such salaries shall be fixed by the Executive Secretary at least annually at such time as he deems proper and as soon as practicable thereafter certified to the Comptroller.

In determining the salary of any magistrate, the Executive Secretary shall consider the work load of and territory and population served by the magistrate and such other factors he deems relevant.

The governing body of any county or city may add to the fixed compensation of magistrates such amount as the governing body may appropriate with the total amount not to exceed 50 percent of the amount paid by the Commonwealth to magistrates provided such additional compensation was in effect on June 30, 2008, for such magistrates and any magistrate receiving such additional compensation continues in office without a break in service. However, the total amount of additional compensation may not be increased after June 30, 2008. No additional amount paid by a local governing body shall be chargeable to the Executive Secretary of the Supreme Court, nor shall it remove or supersede any authority, control or supervision of the Executive Secretary or Committee on District Courts.

(1973, c. 545, § 14.1-44.2; 1974, c. 484; 1975, c. 334; 1981, c. 4; 1995, cc. 331, 378; 1998, c. 872; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are nearly identical, and in the first paragraph, substituted "Executive Secretary of the Supreme Court" for "Committee on District Courts established pursuant to § 16.1-69.33" in the first sentence, substituted "Executive Secretary" for "Committee" and deleted "and the Executive Secretary of the Supreme Court" from the end of the second sentence; deleted the former second paragraph, which read: "In addition to the salary authorized by this section, a magistrate may be reimbursed by the county or city for reasonable mileage expenses actually incurred in the performance of his duties"; in the second paragraph, substituted "Executive Secretary" for "Committee" and deleted the last sentence, which read: "It may require of any magistrate or district judge information on the operation of the office of the magistrate"; in the third paragraph, inserted the proviso at the end of the first sentence and added the second sentence.

§ 19.2-46.2. Full-time magistrates; certification for retirement coverage.

The Committee on District Courts shall certify to the director of the Virginia Retirement System the names of those magistrates serving on a regular full-time basis. Certification by the Committee shall qualify a magistrate as a state employee, for purposes of §§ 51.1-124.3 and 51.1-152 of the Virginia Retirement System (§ 51.1-124.1 et seq.), effective on the date given in the certificate as the date on which such magistrate first served on a regular full-time basis on or after January 1, 1974.

(1974, c. 353, § 14.1-44.2:1; 1998, c. 872.)

§ 19.2-47. Magistrate not to receive claims or evidence of debt for collection.

No magistrate shall receive claims or evidence of debt for collection; and it shall be unlawful for any magistrate to receive claims of any kind for collection, or to accept or receive money or any other things of value by way of commission or compensation for or on account of any collection made by or through him on any such claim, either before or after judgment. Any magistrate violating this section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 19.1-396; 1973, c. 545; 1975, c. 495.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-47.1. Disposition of funds.

All funds paid to and collected by or on behalf of a magistrate shall be paid promptly to the appropriate district court clerk, circuit court clerk, commissioner in chancery, department of the Commonwealth, federal agency or as otherwise authorized by statute.

(1973, c. 545, § 14.1-44.4; 1980, c. 356; 1987, c. 22; 1998, c. 872.)

§ 19.2-48. Audits.

The Auditor of Public Accounts shall audit the records of all magistrates who serve any county or city when auditing the records of the district courts of such county or city or upon request of the chief district judge of the district in which such county or city is located.

(Code 1950, § 19.1-397; 1973, c. 545; 1975, c. 495; 1980, c. 195; 2008, cc. 551, 691.)

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "serve any county" for "serve in any county."

§ 19.2-48.1. Quarters for magistrates.

1. The counties and cities served by a magistrate or magistrates shall provide suitable quarters for such magistrates, including a site for any videoconferencing equipment necessary to provide remote access to such magistrates. Insofar as possible, such quarters should be located in a public facility and should be appropriate to conduct the affairs of a judicial officer as well as provide convenient access to the public and law-enforcement officers. The county or city shall also provide all furniture and other equipment necessary for the efficient operation of the office.
2. Wherever practical, the office of magistrate shall be located at the county seat. However, offices may be located at other locations in the county, or city adjacent thereto, whenever such additional offices are necessary to effect the efficient administration of justice.

   (1975, c. 495; 1981, c. 5; 1988, c. 510; 2008, cc. 551, 691.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and in subsection A, rewrote the first sentence, which read: "Each county and city having a general district court or juvenile and domestic relations district court and having one or more magistrates appointed pursuant to Article 3 ( § 19.2-33 et seq.) of this chapter, shall provide suitable quarters for such magistrates."

§§ 19.2-49 through 19.2-51.

Repealed by Acts 1980, c. 758.

Editor's note. - Acts 1980, c. 758, cl. 3, which provided that the act should not be effective within the Nineteenth Judicial Circuit, was repealed by Acts 1981, c. 403, cl. 2.

§ 19.2-52. When search warrant may issue.

Except as provided in § 19.2-56.1 , search warrants, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant.

An application for a search warrant to withdraw blood from a person suspected of violating § 18.2-266 , 18.2-266 .1, 18.2-272 , 29.1-738 , 29.1-738.02 , or 46.2-341.24 shall be given priority over any pending matters not involving an imminent risk to another's health or safety before such judge, magistrate, or other person having authority to issue criminal warrants.

(Code 1950, § 19.1-83; 1960, c. 366; 1975, c. 495; 1986, c. 636; 2017, cc. 623, 673.)

Cross references. - As to use and approval of facial recognition technology, by local law-enforcement agencies, see § 15.2-1723.2 , and by campus police departments, see § 23.1-815.1 .

For constitutional provision, see Va. Const., Art. I, § 10.

The 2017 amendments. - The 2017 amendments by cc. 623 and 673, effective March 16, 2017, are identical, and added the last paragraph.

Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

For note, "The Role of Police Culpability in Leon and Youngblood," see 76 Va. L. Rev. 1213 (1990).

§ 19.2-53. What may be searched and seized.

1. Search warrants may be issued for the search of or for specified places, things or persons, and seizure therefrom of the following things as specified in the warrant:
   1. Weapons or other objects used in the commission of crime;
   2. Articles or things the sale or possession of which is unlawful;
   3. Stolen property or the fruits of any crime;
   4. Any object, thing, or person, including without limitation, documents, books, papers, records or body fluids, constituting evidence of the commission of crime; or
   5. Any person to be arrested for whom a warrant or process for arrest has been issued.

      Notwithstanding any other provision in this chapter to the contrary, no search warrant may be issued as a substitute for a witness subpoena.

2. Any search warrant issued for the search and seizure of a computer, computer network, or other device containing electronic or digital information shall be deemed to include the search and seizure of the physical components and the electronic or digital information contained in any such computer, computer network, or other device.
3. Any search, including the search of the contents of any computer, computer network, or other device conducted pursuant to subsection B, may be conducted in any location and is not limited to the location where the evidence was seized.

   (Code 1950, § 19.1-84; 1960, c. 366; 1962, c. 519; 1966, c. 363; 1970, c. 650; 1974, c. 113; 1975, c. 495; 1981, c. 559; 2015, c. 501; 2017, cc. 233, 242.)

Cross references. - As to search warrants relating to alcoholic beverages, see § 4.1-337 .

Editor's note. - Acts 2015, c. 501, cl. 2 provides: "That this act is declaratory of existing law."

The 2015 amendments. - The 2015 amendment by c. 501 inserted the subsection A designation, redesignated subdivisions (a) through (d) as 1 through 4, and added subsections B and C.

The 2017 amendments. - The 2017 amendments by cc. 233 and 242, are identical, and inserted subdivision A 5.

Law review. - For survey of Virginia criminal law for the year 1973-1974, see 60 Va. L. Rev. 1499 (1974). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

§ 19.2-53.1. Taking blood samples pursuant to search warrant; immunity.

No cause of action shall lie in any court against any person authorized by law to withdraw blood pursuant to a search warrant issued in accordance with § 19.2-53 when that person is acting in accordance with such warrant, except in cases of negligence in the withdrawing of blood or willful misconduct.

(2015, c. 425.)

§ 19.2-54. Affidavit preliminary to issuance of search warrant; general search warrant prohibited; effect of failure to file affidavit.

No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit of some person reasonably describing the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the offense or the identity of the person to be arrested for whom a warrant or process for arrest has been issued in relation to which such search is to be made and that the object, thing, or person searched for constitutes evidence of the commission of such offense or is the person to be arrested for whom a warrant or process for arrest has been issued. The affidavit may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-480. Such affidavit shall be certified by the officer who issues such warrant and delivered in person; mailed by certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for transmitting signed documents, by such officer or his designee or agent, to the clerk of the circuit court of the county or city wherein the search is made, within seven days after the issuance of such warrant and shall by such clerk be preserved as a record and shall at all times be subject to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier; however, such affidavit, any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return may be temporarily sealed for a specific period of time by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing. Any individual arrested and claiming to be aggrieved by such search and seizure or any person who claims to be entitled to lawful possession of such property seized may move the appropriate court for the unsealing of such affidavit, warrant, and return. The burden of proof with respect to continued sealing shall be upon the Commonwealth. Each such clerk shall maintain an index of all such affidavits filed in his office in order to facilitate inspection. No such warrant shall be issued on an affidavit omitting such essentials, and no general warrant for the search of a house, place, compartment, vehicle or baggage shall be issued. The term "affidavit" as used in this section, means statements made under oath or affirmation and preserved verbatim.

Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of 30 days. If the affidavit is filed prior to the expiration of the 30-day period, nevertheless, evidence obtained in any such search shall not be admissible until a reasonable time after the filing of the required affidavit.

(Code 1950, § 19.1-85; 1960, c. 366; 1973, c. 502; 1975, c. 495; 1976, c. 552; 1977, c. 109; 1979, c. 583; 1980, c. 362; 1981, c. 559; 1989, c. 719; 2006, c. 285; 2007, c. 212; 2008, cc. 147, 183; 2011, cc. 196, 219; 2012, c. 5; 2017, cc. 228, 233, 242, 641.)

The 2006 amendments. - The 2006 amendment by c. 285 inserted the second sentence in the first paragraph.

The 2007 amendments. - The 2007 amendment by c. 212 inserted "in person or mailed by certified mail, return receipt requested" in the third sentence.

The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical and rewrote the third sentence of the first paragraph and made minor stylistic changes.

The 2011 amendments. - The 2011 amendment by c. 196, inserted "after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier" in the third sentence in the first paragraph.

The 2011 amendment by c. 219, in the first paragraph, in the third sentence, inserted "any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return" and "for a specific period of time," and subdivided the former fourth sentence and therein added "warrant, and return."

The 2012 amendments. - The 2012 amendment by c. 5, in the first paragraph, inserted the (i) designator and clause (ii) of the second sentence, added "or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act ( § 59.1-479 et seq.) for transmitting signed documents" in the third sentence, and made minor stylistic changes.

The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the third sentence of the first paragraph, deleted "with a copy of the affidavit also being delivered to the clerk of the circuit court of the county or city where the warrant is issued, if in a different county or city," preceding "within seven days" and substituted "clerk" for "clerks."

The 2017 amendments by cc. 233 and 242 are identical, and in the first paragraph, inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" and "or is the person to be arrested for whom a warrant or process for arrest has been issued" in the first sentence.

Law review. - For survey of Virginia criminal law and procedure for the year 1970-1971, see 57 Va. L. Rev. 1438 (1971). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For note on reasonable suspicion and probable cause in automobile searches, see 40 Wash. & Lee L. Rev. 361 (1983). For note, "The Constitutionality of the Use of Unrecorded Oral Testimony to Establish Probable Cause for Search Warrants," see 70 Va. L. Rev. 1603 (1984). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985).

§ 19.2-55. Issuing general search warrant or search warrant without affidavit deemed malfeasance.

Any person having authority to issue criminal warrants who wilfully and knowingly issues a general search warrant or a search warrant without the affidavit required by § 19.2-54 shall be deemed guilty of a malfeasance.

(Code 1950, § 19.1-89; 1960, c. 366; 1975, c. 495.)

§ 19.2-56. To whom search warrant directed; what it shall command; warrant to show date and time of issuance; copy of affidavit to be part of warrant and served therewith; warrants not executed within 15 days.

1. The judge, magistrate, or other official authorized to issue criminal warrants, shall issue a search warrant only if he finds from the facts or circumstances recited in the affidavit that there is probable cause for the issuance thereof. Every search warrant shall be directed (i) to the sheriff, sergeant, or any policeman of the county, city, or town in which the place to be searched is located; (ii) to any law-enforcement officer or agent employed by the Commonwealth and vested with the powers of sheriffs and police; or (iii) jointly to any such sheriff, sergeant, policeman, or law-enforcement officer or agent and an agent, special agent, or officer of the Federal Bureau of Investigation, the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury, the United States Naval Criminal Investigative Service, the United States Department of Homeland Security, any inspector, law-enforcement official, or police personnel of the United States Postal Service, or the Drug Enforcement Administration. The warrant shall (a) name the affiant, (b) recite the offense or the identity of the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the search is to be made, (c) name or describe the place to be searched, (d) describe the property or person to be searched for, and (e) recite that the magistrate has found probable cause to believe that the property or person constitutes evidence of a crime (identified in the warrant) or tends to show that a person (named or described therein) has committed or is committing a crime or that the person to be arrested for whom a warrant or process for arrest has been issued is located at the place to be searched. The warrant shall command that the place be forthwith searched and that the objects or persons described in the warrant, if found there, be seized. An inventory shall be produced before a court having jurisdiction of the offense or over the person to be arrested for whom a warrant or process for arrest has been issued in relation to which the warrant was issued as provided in § 19.2-57 . Any such warrant as provided in this section shall be executed by the policeman or other law-enforcement officer or agent into whose hands it shall come or be delivered. If the warrant is directed jointly to a sheriff, sergeant, policeman, or law-enforcement officer or agent of the Commonwealth and a federal agent or officer as otherwise provided in this section, the warrant may be executed jointly or by the policeman, law-enforcement officer, or agent into whose hands it is delivered. No other person may be permitted to be present during or participate in the execution of a warrant to search a place except (1) the owners and occupants of the place to be searched when permitted to be present by the officer in charge of the conduct of the search and (2) persons designated by the officer in charge of the conduct of the search to assist or provide expertise in the conduct of the search. Any search warrant for records or other information pertaining to a subscriber to, or customer of, an electronic communication service or remote computing service, whether a domestic corporation or foreign corporation, that is transacting or has transacted any business in the Commonwealth, to be executed upon such service provider may be executed within or outside the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the service provider. Notwithstanding the provisions of § 19.2-57 , the officer executing a warrant pursuant to this paragraph shall endorse the date of execution thereon and shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the materials ordered to be produced are received by the officer from the service provider. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was (A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued or (B) issued, if executed outside the Commonwealth. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. Electronic communication service or remote computing service providers, whether a foreign or domestic corporation, shall also provide the contents of electronic communications pursuant to a search warrant issued under this section and § 19.2-70.3 using the same process described in the preceding paragraph. Notwithstanding the provisions of § 19.2-57, any search warrant for records or other information pertaining to a customer of a financial institution as defined in § 6.2-604 , money transmitter as defined in § 6.2-1900 , commercial business providing credit history or credit reports, or issuer as defined in § 6.2-424 may be executed within the Commonwealth by hand, United States mail, commercial delivery service, facsimile, or other electronic means upon the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The officer executing such warrant shall endorse the date of execution thereon and shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the materials ordered to be produced are received by the officer from the financial institution, money transmitter, commercial business providing credit history or credit reports, or issuer. The return shall be made in the circuit court clerk's office for the jurisdiction wherein the warrant was executed. Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. For the purposes of this section, the warrant will be considered executed in the jurisdiction where the entity on which the warrant is served is located. Every search warrant shall contain the date and time it was issued. However, the failure of any such search warrant to contain the date and time it was issued shall not render the warrant void, provided that the date and time of issuing of said warrant is established by competent evidence. The judge, magistrate, or other official authorized to issue criminal warrants shall attach a copy of the affidavit required by § 19.2-54 , which shall become a part of the search warrant and served therewith. However, this provision shall not be applicable in any case in which the affidavit is made by means of a voice or videotape recording or where the affidavit has been sealed pursuant to § 19.2-54 . Any search warrant not executed within 15 days after issuance thereof shall be returned to, and voided by, the officer who issued such search warrant.
2. No law-enforcement officer shall seek, execute, or participate in the execution of a no-knock search warrant. A search warrant for any place of abode authorized under this section shall require that a law-enforcement officer be recognizable and identifiable as a uniformed law-enforcement officer and provide audible notice of his authority and purpose reasonably designed to be heard by the occupants of such place to be searched prior to the execution of such search warrant.

   After entering and securing the place to be searched and prior to undertaking any search or seizure pursuant to the search warrant, the executing law-enforcement officer shall give a copy of the search warrant and affidavit to the person to be searched or the owner of the place to be searched or, if the owner is not present, to any occupant of the place to be searched. If the place to be searched is unoccupied, the executing law-enforcement officer shall leave a copy of the search warrant and affidavit in a conspicuous place within or affixed to the place to be searched.

   Search warrants authorized under this section for the search of any place of abode shall be executed by initial entry of the abode only in the daytime hours between 8:00 a.m. and 5:00 p.m. unless (i) a judge or a magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown by particularized facts in an affidavit or (ii) prior to the issuance of the search warrant, law-enforcement officers lawfully entered and secured the place to be searched and remained at such place continuously.

   A law-enforcement officer shall make reasonable efforts to locate a judge before seeking authorization to execute the warrant at another time, unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge. Such reasonable efforts shall be documented in an affidavit and submitted to a magistrate when seeking such authorization.

   Any evidence obtained from a search warrant executed in violation of this subsection shall not be admitted into evidence for the Commonwealth in any prosecution.

3. For the purposes of this section: "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . (Code 1950, § 19.1-86; 1960, c. 366; 1968, c. 572; 1975, c. 495; 1977, c. 289; 1979, c. 584; 1980, c. 573; 1981, c. 559; 1984, cc. 491, 598; 1988, c. 50; 1989, c. 719; 2000, c. 783; 2001, cc. 183, 205; 2007, c. 416; 2009, c. 725; 2015, cc. 75, 126; 2017, cc. 228, 233, 242, 641; 2018, c. 410; 2020, Sp. Sess. I, cc. 31, 37; 2021, Sp. Sess. I, c. 34.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 783 added the last sentence in the fourth paragraph.

The 2001 amendments. - The 2001 amendment by cc. 183 and 205 are identical, and, in the second paragraph, in clause (iii) of the first sentence, inserted "special agent" and inserted "the United States Naval Criminal Investigative Service."

The 2007 amendments. - The 2007 amendment by c. 416 substituted "15 days" for "fifteen days" in the section catchline and the last paragraph and inserted "the United States Department of Homeland Security, any inspector, law-enforcement official or police personnel of the United States Postal Inspection Service," in clause (iii) in the first sentence of the second paragraph.

The 2009 amendments. - The 2009 amendment by c. 725 added the fifth, sixth, tenth, eleventh, and twelfth paragraphs.

The 2015 amendments. - The 2015 amendments by cc. 75 and 126 are identical, and deleted "Inspection" following "United States Postal" in the first sentence in the second paragraph.

The 2017 amendments. - The 2017 amendments by cc. 228 and 641 are identical, and in the second paragraph, redesignated clauses (i) through (v) as clauses (a) through (e) in the second sentence; in the fourth paragraph, redesignated clauses (i) and (ii) as clauses (1) and (2) in the second sentence; and inserted the seventh paragraph.

The 2017 amendments by cc. 233 and 242 are identical, and in the second sentence of the second paragraph, redesignated clauses (i) through (v) as (a) through (e), inserted "or the identity of the person to be arrested for whom a warrant or process for arrest has been issued" in clause (b), and added "or that the person to be arrested for whom a warrant or process for arrest has been issued is located at the place to be searched" in clause (e); inserted "or over the person to be arrested for whom a warrant or process for arrest has been issued" in the second sentence of the third paragraph; and redesignated clauses (i) and (ii) as clauses (1) and (2) in the third sentence of the fourth paragraph.

The 2018 amendments. - The 2018 amendment by c. 410, in the fifth paragraph, substituted "outside the Commonwealth" for "without the Commonwealth" in the first sentence and substituted "(A) executed, if executed within the Commonwealth, and a copy of the return shall also be delivered to the clerk of the circuit court of the county or city where the warrant was issued; or (B) issued, if executed outside the Commonwealth" for "issued" in the third sentence.

The 2020 Sp. Sess. I amendments. - The 2020 amendments by Sp. Sess. I, cc. 31 and 37, effective March 1, 2021, are identical, designated the existing text as subsections A and C, and added subsection B; in subsection A, deleted "either in day or night" following "forthwith searched" in the third paragraph; and made stylistic changes.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 34, effective March 1, 2021, inserted "only" in the first paragraph in subsection A, and in subsection B, in the first paragraph, inserted "for any place of abode" and substituted "designed to be heard by the" for "expected to be heard" in the second sentence; in the second paragraph, substituted "give a copy of the search warrant and affidavit" for "read and give a copy of the search warrant" and "and affidavit in a conspicuous place within or" for "suitably"; rewrote the third paragraph, which read "Search warrants authorized under this section shall be executed only in the daytime unless (i) a judge or magistrate, if a judge is not available, authorizes the execution of such search warrant at another time for good cause shown or (ii) the search warrant is for the withdrawal of blood. A search warrant for the withdrawal of blood may be executed at any time of day."; in the fourth paragraph, inserted "unless circumstances require the issuance of the warrant after 5 p.m., pursuant to the provisions of this subsection, in which case the law-enforcement officer may seek such authorization from a magistrate without first making reasonable efforts to locate a judge"; and, in the last paragraph, inserted "executed."

Law review. - For comment on the reasonableness of no knock entry when exigencies are present, see 7 U. Rich. L. Rev. 565 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia law on arrests in private dwellings for the year 1979-1980, see 67 Va. L. Rev. 275 (1981).

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 240; 16 M.J. Searches and Seizures, §§ 7, 8.

§ 19.2-56.1. Warrant issued for search of attorney's office.

1. Any warrant sought for the search of a premises or the contents thereof belonging to or under the control of any licensed attorney-at-law to search for evidence of any crime solely involving a client of such attorney shall be issued only by a circuit court judge. Any evidence seized pursuant to this section shall be inventoried forthwith by the clerk of the issuing court and sealed by the issuing judge. As soon thereafter as is practicable, the issuing judge shall conduct an in camera inspection of the seized evidence in the presence of the attorney from whom the evidence was seized. Following such inspection the issuing judge shall return any evidence so seized which is determined to be within the scope of the attorney-client privilege and not otherwise subject to seizure.
2. Nothing herein shall bar the standing of the client to challenge the admissibility of any evidence seized pursuant to this section in any trial or proceeding.

   (1986, c. 636.)

§ 19.2-56.2. Application for and issuance of search warrant for a tracking device; installation and use.

1. As used in this section, unless the context requires a different meaning: "Judicial officer" means a judge, magistrate, or other person authorized to issue criminal warrants. "Law-enforcement officer" shall have the same meaning as in § 9.1-101 . "Tracking device" means an electronic or mechanical device that permits a person to remotely determine or track the position or movement of a person or object. "Tracking device" includes devices that store geographic data for subsequent access or analysis and devices that allow for the real-time monitoring of movement. "Use of a tracking device" includes the installation, maintenance, and monitoring of a tracking device but does not include the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
2. A law-enforcement officer may apply for a search warrant from a judicial officer to permit the use of a tracking device. Each application for a search warrant authorizing the use of a tracking device shall be made in writing, upon oath or affirmation, to a judicial officer for the circuit in which the tracking device is to be installed, or where there is probable cause to believe the offense for which the tracking device is sought has been committed, is being committed, or will be committed.

   The law-enforcement officer shall submit an affidavit, which may be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-480, and shall include:

   1. The identity of the applicant and the identity of the law-enforcement agency conducting the investigation;
   2. The identity of the vehicle, container, item, or object to which, in which, or on which the tracking device is to be attached, placed, or otherwise installed; the name of the owner or possessor of the vehicle, container, item, or object described, if known; and the jurisdictional area in which the vehicle, container, item, or object described is expected to be found, if known;
   3. Material facts constituting the probable cause for the issuance of the search warrant and alleging substantially the offense in relation to which such tracking device is to be used and a showing that probable cause exists that the information likely to be obtained will be evidence of the commission of such offense; and
   4. The name of the county or city where there is probable cause to believe the offense for which the tracking device is sought has been committed, is being committed, or will be committed.
3. 1. If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images. C. 1.  If the judicial officer finds, based on the affidavit submitted, that there is probable cause to believe that a crime has been committed, is being committed, or will be committed and that there is probable cause to believe the information likely to be obtained from the use of the tracking device will be evidence of the commission of such offense, the judicial officer shall issue a search warrant authorizing the use of the tracking device. The search warrant shall authorize the use of the tracking device from within the Commonwealth to track a person or property for a reasonable period of time, not to exceed 30 days from the issuance of the search warrant. The search warrant shall authorize the collection of the tracking data contained in or obtained from the tracking device but shall not authorize the interception of wire, electronic, or oral communications or the capture, collection, monitoring, or viewing of images.
   2. The affidavit shall be certified by the judicial officer who issues the search warrant and shall be delivered to and preserved as a record by the clerk of the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed. The affidavit shall be delivered by the judicial officer or his designee or agent in person; mailed by certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for transmitting signed documents.
   3. By operation of law, the affidavit, search warrant, return, and any other related materials or pleadings shall be sealed. Upon motion of the Commonwealth or the owner or possessor of the vehicle, container, item, or object that was tracked, the circuit court may unseal such documents if it appears that the unsealing is consistent with the ends of justice or is necessary to reasonably inform such person of the nature of the evidence to be presented against him or to adequately prepare for his defense.
   4. The circuit court may, for good cause shown, grant one or more extensions, not to exceed 30 days each.
4. 1. The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant. D. 1.  The search warrant shall command the law-enforcement officer to complete the installation authorized by the search warrant within 15 days after issuance of the search warrant.
   2. The law-enforcement officer executing the search warrant shall enter on it the exact date and time the device was installed and the period during which it was used.
   3. Law-enforcement officers shall be permitted to monitor the tracking device during the period authorized in the search warrant, unless the period is extended as provided for in this section.
   4. Law-enforcement officers shall remove the tracking device as soon as practical, but not later than 10 days after the use of the tracking device has ended. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such removal for a period not to exceed 10 days each.
   5. In the event that law-enforcement officers are unable to remove the tracking device as required by subdivision 4, the law-enforcement officers shall disable the device, if possible, and all use of the tracking device shall cease.
   6. Within 10 days after the use of the tracking device has ended, the executed search warrant shall be returned to the circuit court of the county or city where there is probable cause to believe the offense for which the tracking device has been sought has been committed, is being committed, or will be committed, as designated in the search warrant, where it shall be preserved as a record by the clerk of the circuit court.
5. Within 10 days after the use of the tracking device has ended, a copy of the executed search warrant shall be served on the person who was tracked and the person whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked or by leaving a copy with any individual found at the person's usual place of abode who is a member of the person's family, other than a temporary sojourner or guest, and who is 16 years of age or older and by mailing a copy to the person's last known address. Upon request, and for good cause shown, the circuit court may grant one or more extensions for such service for a period not to exceed 30 days each. Good cause shall include, but not be limited to, a continuing criminal investigation, the potential for intimidation, the endangerment of an individual, or the preservation of evidence.
6. The disclosure or publication, without authorization of a circuit court, by a court officer, law-enforcement officer, or other person responsible for the administration of this section of the existence of a search warrant issued pursuant to this section, application for such search warrant, any affidavit filed in support of such warrant, or any return or data obtained as a result of such search warrant that is sealed by operation of law is punishable as a Class 1 misdemeanor.

   (2012, cc. 636, 679; 2018, cc. 84, 215.)

Editor's note. - Acts 2012, cc. 636 and 679, cl. 2 provides: "That an emergency exists and this act is in force from its passage." Acts 2012, c. 636 was approved April 5, 2012, and Acts 2012, c. 679 was approved April 6, 2012.

The 2018 amendments. - The 2018 amendments by cc. 84 and 215 are identical, and in subdivision C 2, inserted "or his designee or agent" in the second sentence.

Law review. - For article, "Data Collection and Advancements in Surveillance Techniques: Digital Technology and Analog Law: Cellular Location Data, the Third-Party Doctrine, and the Law's Need to Evolve," see 51 U. Rich. L. Rev. 773 (2017).

§ 19.2-57. Execution and return of warrant; list of property seized.

The warrant shall be executed by the search of the place described in the warrant and, if property described in the warrant is found there, by the seizure of the property. The officer who seizes any property shall prepare an inventory thereof, under oath. An inventory of any seized property shall be produced before the circuit court of the county or city where the search was conducted. The officer executing the warrant shall endorse the date of execution thereon and the officer or his designee shall file the warrant, with the inventory attached (or a notation that no property was seized) and the accompanying affidavit, unless such affidavit was made by voice or videotape recording, within three days after the execution of such search warrant in the circuit court clerk's office, wherein the search was made, as provided in § 19.2-54 . Saturdays, Sundays, or any federal or state legal holiday shall not be used in computing the three-day filing period. The officer, or his designee or agent, may file the warrant, inventory, and accompanying affidavit by delivering them in person, or by mailing them certified mail, return receipt requested, or delivering them by electronically transmitted facsimile process.

(Code 1950, § 19.1-87.1; 1970, c. 416; 1973, c. 11; 1975, c. 495; 1976, cc. 142, 552; 1977, c. 109; 1980, c. 573; 1984, c. 491; 2008, cc. 147, 183.)

The 2008 amendments. - The 2008 amendments by cc. 147 and 183 are identical, and substituted "is found" for "be found" in the first sentence and "the circuit court of the county or city where the search was conducted" for "the court designated in the warrant" in the third sentence; inserted "the officer or his designee" in the fourth sentence; and added the last sentence.

§ 19.2-58. Disposition of property seized.

If any such warrant be executed by the seizure of property, or of any other of the things aforesaid, the same shall be safely kept by the direction of such judge or court, to be used as evidence, and thereafter be disposed of as provided by law; provided, however, that any such property seized under such warrant which is not used in evidence and any property which is stolen or embezzled property shall be restored to its owner, and the things mentioned in § 19.2-53 may be burnt or otherwise destroyed, under such direction, as soon as there is no further need for its use as evidence unless it is otherwise expressly provided by law.

(Code 1950, § 19.1-87; 1960, c. 366; 1975, c. 495.)

Research References. - Virginia Forms (Matthew Bender). No. 9-1612. Motion for Inspection of Seized Items.

§ 19.2-59. Search without warrant prohibited; when search without warrant lawful.

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.

Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

(Code 1950, § 19.1-88; 1960, c. 366; 1975, c. 495; 1976, c. 293; 1978, c. 721; 1997, c. 147.)

Law review. - For note, "Arson Investigations and the Fourth Amendment," see 30 Wash. & Lee L. Rev. 133 (1973). For survey of Virginia law on criminal procedure for the year 1974-1975, see 61 Va. L. Rev. 1713 (1975). For survey of Virginia criminal procedure for the year 1975-1976, see 62 Va. L. Rev. 1412 (1976). For comment on warrantless searches of automobiles in Virginia, see 12 U. Rich. L. Rev. 563 (1978). For article, "Warrantless Searches and Seizures in Virginia," see 17 U. Rich. L. Rev. 721 (1983). For article, "Unreasonable Searches and Seizures of Papers," see 71 Va. L. Rev. 869 (1985).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

§ 19.2-59.1. Strip searches prohibited; exceptions; how strip searches conducted.

1. No person in custodial arrest for a traffic infraction, Class 3 or Class 4 misdemeanor, or a violation of a city, county, or town ordinance, which is punishable by no more than 30 days in jail shall be strip searched unless there is reasonable cause to believe on the part of a law-enforcement officer authorizing the search that the individual is concealing a weapon. All strip searches conducted under this section shall be performed by persons of the same sex as the person arrested and on premises where the search cannot be observed by persons not physically conducting the search.
2. A regional jail superintendent or the chief of police or the sheriff of the county or city shall develop a written policy regarding strip searches.
3. A search of any body cavity must be performed under sanitary conditions and a search of any body cavity, other than the mouth, shall be conducted either by or under the supervision of medically trained personnel.
4. Strip searches authorized pursuant to the exceptions stated in subsection A shall be conducted by a law-enforcement officer as defined in § 9.1-101 .
5. The provisions of this section shall not apply when the person is taken into custody by or remanded to a law-enforcement officer pursuant to a circuit or district court order.
6. For purposes of this section, "strip search" means having an arrested person remove or arrange some or all of his clothing so as to permit a visual inspection of the genitals, buttocks, anus, female breasts, or undergarments of such person.
7. Nothing in this section shall prohibit a sheriff or a regional jail superintendent from requiring that inmates take hot water and soap showers and be subjected to visual inspection upon assignment to the general population area of the jail or upon determination by the sheriff or regional jail superintendent that the inmate must be held at the jail by reason of his inability to post bond after reasonable opportunity to do so.
8. Except for children committed to the Department of Juvenile Justice or confined or detained in a secure local facility for juveniles or a jail or other facility for the detention of adults and except as provided in subsection E, no child under the age of 18 shall be strip searched or subjected to a search of any body cavity by a law-enforcement officer, as defined in § 9.1-101 , or a jail officer unless the child is in custodial arrest and there is reasonable cause to believe on the part of a law-enforcement officer or jail officer authorizing the search that the child is concealing a weapon. (1981, c. 608; 1995, c. 112; 2020, c. 1236.)

Cross references. - As to punishment for Class 3 and Class 4 misdemeanors, see § 18.2-11 .

The 2020 amendments. - The 2020 amendment by c. 1236 substituted "30 days" for "thirty days" in subsection A; deleted "of this section" following "subsection A" in subsection D; substituted "means" for "shall mean" in subsection F; and added subsection H.

§ 19.2-60. Motion for return of seized property and to suppress.

A person aggrieved by an allegedly unlawful search or seizure may move the court to return any seized property and to suppress it for use as evidence. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted by a court of record, any seized property shall be restored as soon as practicable unless otherwise subject to lawful detention, and such property shall not be admissible in evidence at any hearing or trial. If the motion is granted by a court not of record, such property shall not be admissible in evidence at any hearing or trial before that court, but the ruling shall have no effect on any hearing or trial in a court of record.

(1975, c. 495.)

Law review. - For review of Fourth Circuit cases on habeas corpus and prisoners' rights, see 36 Wash. & Lee L. Rev. 603 (1979).

For comment, see "Commonwealth and Constitution," 48 U. Rich. L. Rev. 415 (2013).

§ 19.2-60.1. Use of unmanned aircraft systems by public bodies; search warrant required.

1. As used in this section, unless the context requires a different meaning:

   "Unmanned aircraft" means an aircraft that is operated without the possibility of human intervention from within or on the aircraft.

   "Unmanned aircraft system" means an unmanned aircraft and associated elements, including communication links, sensing devices, and the components that control the unmanned aircraft.

2. No state or local government department, agency, or instrumentality having jurisdiction over criminal law enforcement or regulatory violations, including but not limited to the Department of State Police, and no department of law enforcement as defined in § 15.2-836 of any county, city, or town shall utilize an unmanned aircraft system except during the execution of a search warrant issued pursuant to this chapter or an administrative or inspection warrant issued pursuant to law.
3. Notwithstanding the prohibition in this section, an unmanned aircraft system may be deployed without a warrant (i) when an Amber Alert is activated pursuant to § 52-34.3 ; (ii) when a Senior Alert is activated pursuant to § 52-34.6 ; (iii) when a Blue Alert is activated pursuant to § 52-34.9 ; (iv) where use of an unmanned aircraft system is determined to be necessary to alleviate an immediate danger to any person; (v) by a law-enforcement officer following an accident where a report is required pursuant to § 46.2-373 , to survey the scene of such accident for the purpose of crash reconstruction and record the scene by photographic or video images; (vi) by the Department of Transportation when assisting a law-enforcement officer to prepare a report pursuant to § 46.2-373 ; (vii) for training exercises related to such uses; (viii) if a person with legal authority consents to the warrantless search; or (ix) by a law-enforcement officer to (a) aerially survey a primary residence of the subject of the arrest warrant to formulate a plan to execute an existing arrest warrant or capias for a felony offense or (b) locate a person sought for arrest when such person has fled from a law-enforcement officer and a law-enforcement officer remains in hot pursuit of such person.
4. The warrant requirements of this section shall not apply when such systems are utilized to support the Commonwealth or any locality for purposes other than law enforcement, including damage assessment, traffic assessment, flood stage assessment, and wildfire assessment. Nothing herein shall prohibit use of unmanned aircraft systems for private, commercial, or recreational use or solely for research and development purposes by institutions of higher education and other research organizations or institutions.
5. Evidence obtained through the utilization of an unmanned aircraft system in violation of this section is not admissible in any criminal or civil proceeding.
6. In no case may a weaponized unmanned aircraft system be deployed in the Commonwealth or its use facilitated in the Commonwealth by a state or local government department, agency, or instrumentality or department of law enforcement in the Commonwealth except in operations at the Space Port and Naval/Aegis facilities at Wallops Island.
7. Nothing herein shall apply to the Armed Forces of the United States or the Virginia National Guard while utilizing unmanned aircraft systems during training required to maintain readiness for its federal mission or when facilitating training for other U.S. Department of Defense units.

   (2015, cc. 764, 774; 2018, cc. 419, 546, 654; 2019, c. 781.)

The 2018 amendments. - The 2018 amendment by c. 419 inserted "or any locality" in the first sentence of subsection D.

The 2018 amendments by cc. 546 and 654 are nearly identical, and added clauses (v) and (vi) and made related changes in subsection C. Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2019 amendments. - The 2019 amendment by c. 781, in subsection C, added clause (ix) and made stylistic changes.

§ 19.2-61. Definitions.

As used in this chapter:

"Aggrieved person" means a person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed;

"Aural transfer" means a transfer containing the human voice at any point between and including the point of origin and the point of reception;

"Communications common carrier" means any person engaged as a common carrier for hire in communication by wire or radio or in radio transmission of energy;

"Contents" when used with respect to any wire, electronic or oral communication, includes any information concerning the substance, purport or meaning of that communication;

"Electronic, mechanical or other device" means any device or apparatus that can be used to intercept a wire, electronic or oral communication other than:

1. Any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by the subscriber or user for connection to the facilities of such service and used in the ordinary course of the subscriber's or user's business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law-enforcement officer in the ordinary course of his duties;
2. A hearing aid or similar device being used to correct subnormal hearing to not better than normal;

   "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system. The term does not include:

   1. Any wire communication or oral communication as defined herein;
   2. Any communication made through a tone-only paging device;
   3. Any communication from an electronic or mechanical device which permits the tracking of the movement of a person or object; or
   4. Any electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds;

      "Electronic communication service" means any service which provides to users thereof the ability to send or receive wire or electronic communications;

      "Electronic communication system" means any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications;

      "Electronic storage" means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof and any storage of such communication by an electronic communication service for purposes of backup protection of such communication;

      "Intercept" means any aural or other means of acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device;

      "Investigative or law-enforcement officer" means any officer of the United States or of a state or political subdivision thereof, who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses;

      "Judge of competent jurisdiction" means a judge of any circuit court of the Commonwealth with general criminal jurisdiction;

      "Monitor" or "monitoring" means the actual auditory or visual acquisition of an intercepted communication by any means;

      "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectations but does not include any electronic communication;

      "Pen register" means a device or process that records or decodes dialing, routing, addressing or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted; however, such information shall not include the contents of any communication. The term does not include any device or process used by a provider or customer of a wire or electronic communication service for billing, or recording as an incident to billing, for communications services provided by such provider or any device or process used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of the provider's or customer's business;

      "Person" means any employee or agent of the Commonwealth or a political subdivision thereof, and any individual, partnership, association, joint stock company, trust or corporation;

      "Readily accessible to the general public" means, with respect to a radio communication, that such communication is not (i) scrambled or encrypted; (ii) transmitted using modulation techniques whose essential parameters have been withheld from the public with the intention of preserving the privacy of such communication; (iii) carried on a subcarrier or other signal subsidiary to a radio transmission; (iv) transmitted over a communication system provided by a communications common carrier, unless the communication is a tone-only paging system communication; or (v) transmitted on frequencies allocated under Part 25, subpart D, E, or F of Part 74, or Part 94 of the Rules of the Federal Communications Commission, unless, in the case of a communication transmitted on a frequency allocated under Part 74 that is not exclusively allocated to broadcast auxiliary services, the communication is a two-way voice communication by radio;

      "Remote computing service" means the provision to the public of computer storage or processing services by means of an electronic communications system;

      "Trap and trace device" means a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing and signaling information reasonably likely to identify the source of a wire or electronic communication; however, such information shall not include the contents of any communication;

      "User" means any person or entity who uses an electronic communication service and is duly authorized by the provider of such service to engage in such use;

      "Wire communication" means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection, including the use of such connection in a switching station, furnished or operated by any person engaged in providing or operating such facilities for the transmission of communications.

      (Code 1950, § 19.1-89.1; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2002, cc. 588, 623; 2005, c. 934.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and added subdivision (b) 4 in the definition of "electronic communication" and made related changes; inserted "wire or" in the definition for "electronic communication system"; in the definition of "pen register," rewrote the first sentence, which formerly read: " 'Pen register' means a device which records or decodes electronic or other impulses which identify the numbers dialed or otherwise transmitted on the telephone line to which such device is attached," and twice substituted "device or process" for "device" in the second sentence; rewrote the definition of "trap and trace device," which previously read: " 'Trap and trace device' means a device which captures the incoming electronic or other impulses identifying the originating number of an instrument or device from which a wire or electronic communication was transmitted; and"; and deleted "and includes electronic storage of such communication" at the end of the definition of "wire communication."

The 2005 amendments. - The 2005 amendment by c. 934 inserted the definition of "'Monitor' or 'monitoring.'"

Law review. - For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

§ 19.2-62. Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.

1. Except as otherwise specifically provided in this chapter any person who:
   1. Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
   2. Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical or other device to intercept any oral communication;
   3. Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic or oral communication knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
   4. Intentionally uses, or endeavors to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; shall be guilty of a Class 6 felony.
2. 1. It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication. B. 1.  It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee or agent of a provider of wire or electronic communications service, whose facilities are used in the transmission of a wire communication, to intercept, disclose or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service. However, a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks. It shall not be a criminal offense under this chapter for providers of wire or electronic communications service, their officers, employees and agents, landlords, custodians, or other persons pursuant to a court order under this chapter, to provide information facilities or technical assistance to an investigative or law-enforcement officer, who, pursuant to this chapter, is authorized to intercept a wire, electronic or oral communication.
   2. It shall not be a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
   3. It shall not be a criminal offense under this chapter for any person:
      1. To intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public;
      2. To intercept any radio communication which is transmitted (i) by any station for the use of the general public, or that relates to ships, aircraft, vehicles, or persons in distress, (ii) by any governmental, law-enforcement, civil defense, private land mobile, or public safety communications system, including police and fire, readily accessible to the general public, (iii) by a station operating on an authorized frequency within the bands allocated to the amateur, citizens band, or general mobile radio services; or (iv) by any marine or aeronautical communications system;
      3. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment, to the extent necessary to identify the source of such interference;
      4. Using the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of such system, if such communication is not scrambled or encrypted;
      5. To use a pen register or a trap and trace device pursuant to §§ 19.2-70.1 and 19.2-70.2 ; or
      6. Who is a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire or electronic communication, or a user of that service, from fraudulent, unlawful or abusive use of such service.
3. A person or entity providing an electronic communication service to the public shall not intentionally divulge the contents of any communication, other than one to such person or entity or an agent thereof, while in transmission on that service to any person or entity other than an addressee or intended recipient of such communication or an agent of the addressee or intended recipient. However, a person or entity providing electronic communication service to the public may divulge the contents of any such communication:
   1. As authorized in subdivision B 1 of this section or § 19.2-67 ;
   2. With the lawful consent of the originator or any addressee or intended recipient of such communication;
   3. To a person employed or authorized, or whose facilities are used, to forward such communication to its destination; or
   4. Which were inadvertently obtained by the service provider and which appear to pertain to the commission of a crime, to a law-enforcement agency. Conduct otherwise an offense under this subsection that consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted (i) to a broadcasting station for purposes of retransmission to the general public, or (ii) as an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls, is not an offense under this section unless the conduct is for the purposes of direct or indirect commercial advantage or private financial gain. Further, private viewing of a satellite video communication that is not scrambled or encrypted and interception of a radio communication that is transmitted on frequencies allocated under subpart D of Part 74 of the Rules of the Federal Communications Commission that is not scrambled or encrypted when the viewing or interception is not done for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, shall not be offenses under this chapter. Violation of this subsection shall be punishable as a Class 1 misdemeanor. (Code 1950, § 19.1-89.2; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2004, c. 149.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2004, c. 149, cl. 2, provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 149 inserted "electronic" preceding the second occurrence of "or oral communication" in subdivision A 4.

Law review. - For an article, "I Spy: The Newsgatherer Under Cover," see 33 U. Rich. L. Rev. 1185 (2000).

For note, "Bartnicki v. Vopper: A Public Concern Exception for the Press and its Disclosure of unlawfully Obtained Information," see 11 Geo. Mason. L. Rev. 441 (2002).

For note, see "Knowledge Is Power: The Fundamental Right to Record Present Observations In Public," 54 Wm. & Mary L. Rev. 1409 (2013).

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 40 Rules of Evidence. § 40.05 Pleas, Statements, and Recordings. Friend.

§ 19.2-63. Manufacture, possession, sale or advertising of certain devices unlawful; penalties; exceptions.

1. Except as otherwise specifically provided in this chapter, any person who intentionally:
   1. Manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications; or
   2. Places in any newspaper, magazine, handbill, or other publication any advertisement of:
      1. Any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications, or
      2. Any other electronic, mechanical, or other device where such advertisement promotes the use of such device for the purpose of the surreptitious interception of wire, electronic or oral communications; shall be guilty of a Class 6 felony.
2. It shall not be unlawful under this section for:
   1. A provider of wire or electronic communication service or an officer, agent, or employee of, or a person under contract with, such provider in the normal course of the provider's business, or
   2. An officer, agent, or employee of, or a person under contract with the United States, the Commonwealth or a political subdivision thereof, in the normal course of the activities of the United States, the Commonwealth, or a political subdivision thereof, to manufacture, assemble, possess, or sell any electronic, mechanical, or other device knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, electronic or oral communications.

      (Code 1950, § 19.1-89.3; 1973, c. 442; 1975, c. 495; 1988, c. 889.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

§ 19.2-63.1. Supervision and control of devices; unauthorized possession.

Any electronic, mechanical or other device as defined in this chapter which is in the possession of any sheriff's office or police department of a county, city or town, or in the possession of any employee of such office, shall be under the direct control and supervision of the sheriff or chief of police of the office or department or his designee who is an employee of the office or department. Unauthorized possession of any such device under the provisions of this section by any such employee is unlawful, notwithstanding the provisions of subdivision B 2 of § 19.2-63 , and a Class 1 misdemeanor.

(1978, c. 63; 1988, c. 889; 2011, c. 193.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 2011 amendments. - The 2011 amendment by c. 193 added "or his designee who is an employee of the office or department" at the end of the first sentence.

§ 19.2-64. Forfeiture of unlawful devices.

Any electronic, mechanical or other device used, manufactured, assembled, possessed, sold, or advertised in violation of § 19.2-62 or § 19.2-63 may be seized and forfeited to the Commonwealth, and turned over to the court of record in the city or county in which it was seized and such property shall be disposed of in such manner as the court may direct.

(Code 1950, § 19.1-89.4; 1973, c. 442; 1975, c. 495.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 19.2-65. When intercepted communications and evidence derived therefrom not to be received in evidence.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, commission, regulatory body, legislative committee or other agency of this Commonwealth or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

(Code 1950, § 19.1-89.5; 1973, c. 442; 1975, c. 495.)

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

For 2007 annual survey article, "Electronic Data: A Commentary on the Law in Virginia in 2007," see 42 U. Rich. L. Rev. 355 (2007).

§ 19.2-66. When Attorney General or Chief Deputy Attorney General may apply for order authorizing interception of communications.

1. The Attorney General or Chief Deputy Attorney General, if the Attorney General so designates in writing, in any case where the Attorney General is authorized by law to prosecute or pursuant to a request in his official capacity of an attorney for the Commonwealth in any city or county, may apply to a judge of competent jurisdiction for an order authorizing the interception of wire, electronic or oral communications by the Department of State Police, when such interception may reasonably be expected to provide evidence of the commission of a felonious offense of extortion, bribery, kidnapping, murder, any felony violation of § 18.2-248 or 18.2-248.1 , any felony violation of Chapter 29 (§ 59.1-364 et seq.) of Title 59.1, any felony violation of Article 2 (§ 18.2-38 et seq.), Article 2.1 (§ 18.2-46.1 et seq.), Article 2.2 (§ 18.2-46.4 et seq.), Article 5 (§ 18.2-58 et seq.), Article 6 (§ 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any conspiracy to commit any of the foregoing offenses. The Attorney General or Chief Deputy Attorney General may apply for authorization for the observation or monitoring of the interception by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States. Such application shall be made, and such order may be granted, in conformity with the provisions of § 19.2-68 .
2. The application for an order under subsection B of § 19.2-68 shall be made as follows:
   1. In the case of an application for a wire or electronic interception, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the person or persons whose communications are to be intercepted live, work, subscribe to a wire or electronic communication system, maintain an address or a post office box, or are making the communication within the territorial jurisdiction of the court.
   2. In the case of an application for an oral intercept, a judge of competent jurisdiction shall have the authority to issue an order under subsection B of § 19.2-68 if there is probable cause to believe that an offense was committed, is being committed, or will be committed or the physical location of the oral communication to be intercepted is within the territorial jurisdiction of the court.
3. For the purposes of an order entered pursuant to subsection B of § 19.2-68 for the interception of a wire or electronic communication, such communication shall be deemed to be intercepted in the jurisdiction where the order is entered, regardless of the physical location or the method by which the communication is captured or routed to the monitoring location. (Code 1950, § 19.1-89.6; 1973, c. 442; 1975, c. 495; 1976, c. 271; 1979, c. 602; 1982, cc. 40, 274; 1988, cc. 855, 889; 2002, cc. 588, 623; 2004, c. 122; 2005, c. 934; 2011, cc. 403, 414; 2013, cc. 448, 664.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and inserted "any felony violation of Article 2.2 ( § 18.2-46.4 et seq.) of Chapter 4 of Title 18.2" near the end of the first sentence.

The 2004 amendments. - The 2004 amendment by c. 122, in the first sentence, inserted "Article 2 ( § 18.2-38 et seq.), Article 2.1 ( § 18.2-46.1 et seq.)" following "any felony violation of" and "Article 5 ( § 18.2-58 et seq.), Article 6 ( § 18.2-59 et seq.) or any felonies that are not Class 6 felonies in Article 7 ( § 18.2-61 et seq.)" preceding "of Chapter 4."

The 2005 amendments. - The 2005 amendment by c. 934 inserted the A designation at the beginning of the first paragraph and in subsection A, deleted "for the jurisdiction where the proposed intercept is to be made" following "judge of competent jurisdiction" in the first sentence and deleted the last sentence, which formerly read: "Application for installation of a mobile interception device may be made to and granted by any court of competent jurisdiction in the Commonwealth"; added subsection B; and made a minor stylistic change.

The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and rewrote the first paragraph in subsection B, which read: "The application for an order under subsection B of § 19.2-68 for the interception of a wire, electronic or oral communication shall be made in the jurisdiction where there is probable cause to believe that an offense listed in subsection A of this section was committed, is being committed, or will be committed"; in subsections B 1 and B 2, inserted "there is probable cause to believe that an offense was committed, is being committed, or will be committed or"; and redesignated former subdivision B 3 as subsection C.

The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are identical, and inserted "by a sheriff's office" in the next-to-last sentence in subsection A.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

§ 19.2-67. Disclosure of information obtained by authorized means.

1. Any investigative or law-enforcement officer, or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law-enforcement officer, or police officer of a county or city, to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
2. Any investigative or law-enforcement officer or police officer of a county or city, who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, electronic or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
3. Any person who has received, by any means authorized by this chapter, any information concerning a wire, electronic or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any criminal proceeding for an offense specified in § 19.2-66 , or any conspiracy or attempt to commit the same, in any court of the United States or of any state or in any federal or state grand jury proceeding.
4. No wire, electronic or oral communication which is a privileged communication between the parties to the conversation which is intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character, nor shall it be disclosed or used in any way.
5. When an investigative or law-enforcement officer, or police officer of a county or city, while engaged in intercepting wire, electronic or oral communications in the manner authorized herein, or observing or monitoring such interception intercepts, observes or monitors wire, electronic or oral communications relating to offenses other than those specified in the order of authorization, the contents thereof, and evidence derived therefrom, shall not be disclosed or used as provided in subsections A, B and C of this section, unless such communications or derivative evidence relates to a felony, in which case use or disclosure may be made as provided in subsections A, B and C of this section. Such use and disclosure pursuant to subsection C of this section shall be permitted only when approved by a judge of competent jurisdiction where such judge finds, on subsequent application, that such communications were otherwise intercepted in accordance with the provisions of this chapter. Violations of this subsection E shall be punishable as provided in § 19.2-62 . (Code 1950, § 19.1-89.7; 1973, c. 442; 1975, c. 495; 1976, c. 231; 1979, c. 602; 1983, c. 536; 1988, c. 889.)

§ 19.2-68. Application for and issuance of order authorizing interception; contents of order; recording and retention of intercepted communications, applications and orders; notice to parties; introduction in evidence of information obtained.

1. Each application for an order authorizing the interception of a wire, electronic or oral communication shall be made in writing upon oath or affirmation to the appropriate judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall be verified by the Attorney General to the best of his knowledge and belief and shall include the following information:
   1. The identity of the attorney for the Commonwealth and law-enforcement officer who requested the Attorney General to apply for such order;
   2. A full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being or is about to be committed, (ii) except as provided in subsection I, a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
   3. A full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous;
   4. A statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
   5. A full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept wire, electronic or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application;
   6. Where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results; and
   7. If authorization is requested for observation or monitoring by a police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States, a statement containing the name of the police department, sheriff's office, or United States agency and an explanation of the reasons such observation or monitoring is necessary.

      The judge may require the applicant to furnish additional testimony or documentary evidence in support of the application.

2. Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing interception of wire, electronic or oral communications if the judge determines on the basis of the facts submitted by the applicant that:
   1. There is probable cause for belief that an individual is committing, has committed or is about to commit an offense enumerated in § 19.2-66 of this chapter;
   2. There is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
   3. Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous; and interception under this chapter is the only alternative investigative procedure available;
   4. Except as provided in subsection I, there is probable cause for belief that the facilities from which, or the place where, the wire, electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person;
   5. A wire, electronic or oral communication authorized to be intercepted pursuant to this section may be monitored at any location within the Commonwealth of Virginia.
3. Each order authorizing the interception of any wire, electronic or oral communication shall specify:
   1. The identity of the person, if known, whose communications are to be intercepted;
   2. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
   3. A particular description of the type of communication sought to be intercepted, and a statement of the particular offense enumerated in § 19.2-66 to which it relates;
   4. That such interception is to be conducted only by the Department of State Police;
   5. If observation or monitoring by the police department of a county or city, by a sheriff's office, or by law-enforcement officers of the United States is authorized, only that police department, sheriff's office, or agency or the officers from any police department of a town which originated the investigation leading to the application shall observe or monitor the interception; and
   6. The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. An order authorizing the interception of a wire, electronic or oral communication shall, upon request of the applicant, direct that a provider of wire or electronic communications service, landlord, custodian or other person shall furnish the Department of State Police forthwith all information, facilities and technical assistance necessary to accomplish the interception unobtrusively and with a minimum of interference with the services that such service provider, landlord, custodian or person is providing the person whose communications are to be intercepted. Any provider of wire or electronic communications service, landlord, custodian or other person furnishing such facilities or technical assistance shall be compensated therefor by the Commonwealth for reasonable and actual expenses incurred in providing such facilities or assistance, to be paid out of the criminal fund.
4. No order entered under this section may authorize the interception of any wire, electronic or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than 30 days which period begins to run on the earlier of the day on which the investigative or law-enforcement officer begins to conduct an interception under the order or 10 days after the date of entry of the order. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection A of this section and the court's making the findings required by subsection B of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than 30 days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in 30 days. In the event the intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception.
5. Whenever an order authorizing interception is entered pursuant to this chapter, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge shall require.
6. 1. The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67 . F. 1.  The contents of any wire, electronic or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. Should it not be possible to record the intercepted communication, a detailed resume of such communication shall forthwith be reduced to writing and filed with the court. The recording of the contents of any wire, electronic or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations and shall not be duplicated except upon order of the court as hereafter provided. Immediately upon the expiration of the period of the order, or extensions thereof, such recording or detailed resume shall be made available to the judge issuing such order and sealed under his directions. Custody of any recordings or detailed resumes shall be vested with the court and shall not be destroyed for a period of 10 years from the date of the order and then only by direction of the court; provided, however, should any interception fail to reveal any information related to the offense or offenses for which it was authorized, such recording or resume shall be destroyed after the expiration of 60 days after the notice required by subdivision 4 of this subsection is served. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections A and B of § 19.2-67 for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, electronic or oral communication or evidence derived therefrom under subsection C of § 19.2-67.
   2. Applications made and orders granted or denied under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for 10 years.
   3. Any violation of the provisions of this subsection may be punished as contempt of the issuing or denying court.
   4. Within a reasonable time but not later than 90 days after the filing of an application for an order of authorization which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of:
      1. The fact of the entry of the order or the application;
      2. The date of the entry and the period of authorized interception, or the denial of the application;
      3. The fact that during the period wire, electronic or oral communications were or were not intercepted; and
      4. The fact that unless he files a motion with the court within 60 days after the service of notice upon him, the recordation or resume may be destroyed in accordance with subdivision 1 of this subsection. The judge, upon the filing of a motion, shall make available to such person or his counsel for inspection the intercepted communications, applications and orders. The serving of the inventory required by this subsection may be postponed for additional periods, not to exceed 30 days each, upon the ex parte showing of good cause to a judge of competent jurisdiction.
7. The contents of any intercepted wire, electronic or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing or other proceeding in a state court unless each party to the communication and to such proceeding, not less than 10 days before the trial, hearing or proceeding, has been furnished with a copy of the court order, accompanying application under which the interception was authorized and the contents of any intercepted wire, electronic or oral communication that is to be used in any trial, hearing or other proceeding in a state court. This 10-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing or proceeding and that the party will not be prejudiced by the delay in receiving such information; provided that such information in any event shall be given prior to the day of the trial, and the inability to comply with such 10-day period shall be grounds for the granting of a continuance to either party.

   The judge who considers an application for an interception under this chapter, whether issuing or denying the order, shall be disqualified from presiding at any trial resulting from or in any manner connected with such interception, regardless of whether the evidence acquired thereby is used in such trial.

8. Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the Commonwealth, or a political subdivision thereof, may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:
   1. The communication was unlawfully intercepted, or was not intercepted in compliance with this chapter; or
   2. The order of the authorization or approval under which it was intercepted is insufficient on its face; or
   3. The interception was not made in conformity with the order of authorization or approval; or
   4. The interception is not admissible into evidence in any trial, proceeding or hearing in a state court under the applicable rules of evidence.

      Such motion shall be made before the trial, hearing or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted pursuant to subdivision 1, 2 or 3 of this subsection, the contents of the intercepted wire, electronic or oral communication or evidence derived therefrom shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, shall make available to the aggrieved person, or his counsel, for inspection the intercepted communication.

9. The requirements of subdivision 2 of subsection A and subdivision 4 of subsection B of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if:
   1. In the case of an application with respect to the interception of an oral communication:
      1. The application contains a full and complete statement as to why such specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
      2. The judge finds that such specification is not practical; or
   2. In the case of an application with respect to a wire or electronic communication:

      (a) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, to thwart interception by changing facilities; and

      (b) the judge finds that such purpose has been adequately shown.

      The interception of a communication under an order issued pursuant to this subsection shall not begin until the facilities from which, or the place where, the communication is to be intercepted is ascertained by the person implementing the interception order. A provider of wire or electronic communications service that has received an order issued pursuant to this subdivision 2 may move the court to modify or quash the order on the ground that its assistance with respect to the interception cannot be performed in a timely or reasonable fashion. The court, upon notice to the Attorney General, shall decide the motion expeditiously.

      (Code 1950, § 19.1-89.8; 1973, c. 442; 1975, c. 495; 1976, c. 163; 1977, c. 335; 1979, c. 602; 1980, c. 244; 1988, c. 889; 2002, c. 91; 2005, c. 934; 2013, cc. 448, 664.)

The 2002 amendments. - The 2002 amendment by c. 91 inserted "or the officers from any police department of a town which originated the investigation leading to the application" in subdivision C 5.

The 2005 amendments. - The 2005 amendment by c. 934, in subsection B, deleted "within the territorial jurisdiction of the court in which the judge is sitting, and outside that jurisdiction but within the Commonwealth in the case of a mobile interception device authorized by a court of competent jurisdiction within such jurisdiction" in the introductory paragraph and rewrote subdivision B 5; and made minor stylistic changes.

The 2013 amendments. - The 2013 amendments by cc. 448 and 664 are nearly identical, and inserted "by a sheriff's office" and "sheriff's office" in subdivisions A 7 and C 5.

Research References. - Virginia Forms (Matthew Bender). No. 9-1613. Motion for Disclosure of the Contents of Intercepted Wire and Oral Communications; No. 9-1614. Motion for Disclosure of Electronic Surveillance.

§ 19.2-69. Civil action for unlawful interception, disclosure, or use.

Any person whose wire, electronic, or oral communication is intercepted, disclosed, or used in violation of this chapter shall (i) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use, such communications and (ii) be entitled to recover from any such person:

1. Actual damages but not less than liquidated damages computed at the rate of $400 a day for each day of violation or $4,000, whichever is higher, provided that liquidated damages shall be computed at the rate of $800 a day for each day of violation or $8,000, whichever is higher, if the wire, electronic, or oral communication intercepted, disclosed, or used is between (i) persons married to each other; (ii) an attorney and client; (iii) a licensed practitioner of the healing arts and patient; (iv) a licensed professional counselor, licensed clinical social worker, licensed psychologist, or licensed marriage and family therapist and client; or (v) a clergy member and person seeking spiritual counsel or advice;
2. Punitive damages; and
3. A reasonable attorney fee and other litigation costs reasonably incurred.

   A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or under any other law.

   (Code 1950, § 19.1-89.9; 1973, c. 442; 1975, c. 495; 1988, c. 889; 2010, c. 343; 2015, c. 672; 2020, c. 900.)

The 2010 amendments. - The 2010 amendment by c. 343 substituted "$400" for "$100" and "$4,000" for "$1,000."

The 2015 amendments. - The 2015 amendment by c. 672 added the proviso at the end of subdivision 1.

The 2020 amendments. - The 2020 amendment by c. 900, in subdivision 1, substituted "persons married to each other" for "a husband and wife" in clause (i); and in subdivision 3, substituted "attorney" for "attorney's."

§ 19.2-70. Reports to be filed by courts and Attorney General.

All courts of the Commonwealth and the Attorney General shall file all reports required by 18 U.S.C.A. § 2519. The Attorney General shall file a written report with the Clerks of the Senate and House of Delegates on or before December 31 of each year setting forth the number of applications made pursuant to this chapter, the number of interceptions authorized, the number of arrests resulting from each application, the number of convictions including a breakdown by offense, the cost of each application granted and the number of requests denied. Such information shall be made available by such Clerks to any member of the General Assembly upon request. However, notwithstanding the above requirements, no report shall be made concerning a granted application until after all inventories associated with such application are served pursuant to subdivision F 4 of § 19.2-68 .

(Code 1950, § 19.1-89.10; 1973, c. 442; 1975, c. 495; 2011, cc. 403, 414.)

The 2011 amendments. - The 2011 amendments by cc. 403 and 414 are identical, and added the last sentence.

Law review. - For survey of Virginia criminal law for the year 1972-1973, see 59 Va. L. Rev. 1458 (1973).

§ 19.2-70.1. General prohibition on pen register and trap and trace device use; exceptions.

Except as provided in this section, no person may install or use a pen register or a trap and trace device without first obtaining a court order under § 19.2-70.2 .

However, a court order shall not be required for use of a pen register or trap and trace device by a provider of electronic or wire communication service (i) relating to the operation, maintenance, and testing of a wire or electronic communication service or to the protection of the rights or property of the provider, or to the protection of users of that service from abuse of service or unlawful use of service; (ii) to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider, another provider furnishing service toward the completion of the wire communication, or a user of that service, from fraudulent, unlawful or abusive use of service; or (iii) where the consent of the user of that service has been obtained.

Any person who knowingly violates this section shall be guilty of a Class 1 misdemeanor.

(1988, c. 889.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-70.2. Application for and issuance of order for a pen register or trap and trace device; assistance in installation and use.

1. An investigative or law-enforcement officer may make application for an order or an extension of an order authorizing or approving the installation and use of a pen register or a trap and trace device, in writing under oath or equivalent affirmation, to a court of competent jurisdiction. The application shall include:
   1. The identity of the officer making the application and the identity of the law-enforcement agency conducting the investigation; and
   2. A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.

      The application may include a request that the order require information, facilities and technical assistance necessary to accomplish the installation be furnished.

2. An application for an ex parte order authorizing the installation and use of a pen register or trap and trace device may be filed in the jurisdiction where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or where the person or persons who subscribe to the wire or electronic communication system live, work, or maintain an address or a post office box. For the purposes of an order entered pursuant to this section for the installation and use of a pen register or trap and trace device, such installation shall be deemed to occur in the jurisdiction where the order is entered, regardless of the physical location or the method by which the information is captured or routed to the law-enforcement officer that made the application. Upon application, the court shall enter an ex parte order authorizing the installation and use of a pen register or a trap and trace device if the court finds that the investigative or law-enforcement officer has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation.

   The order shall specify:

   1. The identity, if known, of the person in whose name the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied is listed or to whom the line or other facility is leased;
   2. The identity, if known, of the person who is the subject of the criminal investigation;
   3. The attributes of the communications to which the order applies, including the number or other identifier and, if known, the location of the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and
   4. A statement of the offense to which the information likely to be obtained by the pen register or trap and trace device relates.
3. Installation and use of a pen register or a trap and trace device shall be authorized for a period not to exceed 60 days. Extensions of the order may be granted, but only upon application made and order issued in accordance with this section. The period of an extension shall not exceed 60 days.
4. An order authorizing or approving the installation and use of a pen register or a trap and trace device shall direct that:
   1. The order and application be sealed until otherwise ordered by the court;
   2. Information, facilities and technical assistance necessary to accomplish the installation be furnished if requested in the application; and
   3. The person owning or leasing the line or other facility to which the pen register or trap and trace device is attached or applied, or who is obligated by the order to provide assistance to the applicant, not disclose the existence of the pen register or trap and trace device or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the court.
5. Upon request of an investigative or a law-enforcement officer authorized by the court to install and use a pen register, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, furnish the officer with all information, facilities, and technical assistance necessary to accomplish the installation of the pen register unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place.
6. Upon request of an investigative or law-enforcement officer authorized by the court to receive the results of a trap and trace device under this section, a provider of wire or electronic communication service, a landlord, custodian or any other person so ordered by the court shall, as soon as practicable, install the device on the appropriate line and furnish the officer with all additional information, facilities and technical assistance, including installation and operation of the device, unobtrusively and with a minimum of interference with the services that the person so ordered by the court accords the party with respect to whom the installation and use is to take place. Unless otherwise ordered by the court, the results of the trap and trace device shall be furnished to the investigative or law-enforcement officer designated by the court at reasonable intervals during regular business hours for the duration of the order. Where the law-enforcement agency implementing an ex parte order under this subsection seeks to do so by installing and using its own pen register or trap and trace device on a packet-switched data network of a provider of electronic communication service to the public, the agency shall ensure that a record will be maintained that will identify (i) any officer or officers who installed the device and any officer or officers who accessed the device to obtain information from the network; (ii) the date and time the device was installed, the date and time the device was uninstalled, and the date, time, and duration of each time the device is accessed to obtain information; (iii) the configuration of the device at the time of its installation and any subsequent modification thereof; and (iv) any information that has been collected by the device. To the extent that the pen register or trap and trace device can be set automatically to record this information electronically, the record shall be maintained electronically throughout the installation and use of such device. The record maintained hereunder shall be provided ex parte and under seal of the court that entered the ex parte order authorizing the installation and use of the device within 30 days after termination of the order, including any extensions thereof.
7. A provider of a wire or electronic communication service, a landlord, custodian or other person who furnishes facilities or technical assistance pursuant to this section shall be reasonably compensated for reasonable and actual expenses incurred in providing such facilities and assistance. The expenses shall be paid out of the criminal fund.
8. When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain a pen register or trap and trace device installation without a court order, in addition to any real-time location data obtained pursuant to subsection E of § 19.2-70.3 , in the following circumstances:
   1. To respond to a user's call for emergency services;
   2. With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession, (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent, or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
   3. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
   4. To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
   5. If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of pen register and trap and trace data, or real-time location data pursuant to subsection E of § 19.2-70.3 , concerning a specific person and that a court order cannot be obtained in time to prevent the identified danger. No later than three business days after seeking the installation of a pen register or trap and trace device pursuant to this subsection, the investigative or law-enforcement officer seeking the installation shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the reasons why the installation of the pen register or trap and trace device was believed to be important in addressing the emergency.
9. No cause of action shall lie in any court against a provider of a wire or electronic communication service, its officers, employees, agents or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this section. Good faith reliance on a court order, a legislative authorization or a statutory authorization is a complete defense against any civil or criminal action based upon a violation of this chapter.

   (1988, c. 889; 2002, cc. 588, 623; 2005, c. 934; 2016, c. 231; 2018, c. 667.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and in subdivision B 1, inserted "or other facility" twice and inserted "or applied"; rewrote subdivision B 3, which formerly read: "The number and, if known, the physical location of the telephone line to which the pen register or trap and trace device is to be attached and, in the case of a trap and trace device, the geographic limits of the trap and trace order"; in subdivision D 3, inserted "or other facility" and substituted "or applied, or who is obligated by the order" for "or who has been ordered by the court"; and added the last three sentences in subsection F.

The 2005 amendments. - The 2005 amendment by c. 934, in the first paragraph of subsection B, added the first and second sentences and deleted "within the jurisdiction of the court" following "trap and trace device" in the last sentence; and made minor stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 231 inserted "where the ongoing criminal investigation is being conducted; where there is probable cause to believe that an offense was committed, is being committed, or will be committed; or" in subsection B.

The 2018 amendments. - The 2018 amendment by c. 667 inserted subsection H and made related changes.

§ 19.2-70.3. Obtaining records concerning electronic communication service or remote computing service.

1. A provider of electronic communication service or remote computing service, which, for purposes of subdivisions 2, 3, and 4, includes a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, excluding the contents of electronic communications and real-time location data, to an investigative or law-enforcement officer only pursuant to:
   1. A subpoena issued by a grand jury of a court of the Commonwealth;
   2. A search warrant issued by a magistrate, general district court, or circuit court;
   3. A court order issued by a circuit court for such disclosure issued as provided in subsection B; or
   4. The consent of the subscriber or customer to such disclosure.
2. A court shall issue an order for disclosure under this section only if the investigative or law-enforcement officer shows that there is reason to believe the records or other information sought are relevant and material to an ongoing criminal investigation, or the investigation of any missing child as defined in § 52-32 , missing senior adult as defined in § 52-34.4 , or an incapacitated person as defined in § 64.2-2000 who meets the definition of a missing senior adult except for the age requirement. Upon issuance of an order for disclosure under this section, the order and any written application or statement of facts may be sealed by the court for 90 days for good cause shown upon application of the attorney for the Commonwealth in an ex parte proceeding. The order and any written application or statement of facts may be sealed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order, if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
3. Except as provided in subsection D or E, a provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose the contents of electronic communications or real-time location data to an investigative or law-enforcement officer only pursuant to a search warrant issued by a magistrate, a juvenile and domestic relations district court, a general district court, or a circuit court, based upon complaint on oath supported by an affidavit as required in § 19.2-54 , or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection G. In the case of a search warrant directed to a foreign corporation, the affidavit shall state that the complainant believes that the records requested are actually or constructively possessed by a foreign corporation that provides electronic communication service or remote computing service within the Commonwealth of Virginia. If satisfied that probable cause has been established for such belief and as required by Chapter 5 (§ 19.2-52 et seq.), the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court shall issue a warrant identifying those records to be searched for and commanding the person seeking such warrant to properly serve the warrant upon the foreign corporation. A search warrant for real-time location data shall be issued if the magistrate, the juvenile and domestic relations district court, the general district court, or the circuit court is satisfied that probable cause has been established that the real-time location data sought is relevant to a crime that is being committed or has been committed or that an arrest warrant exists for the person whose real-time location data is sought.
4. A provider of electronic communication service or remote computing service, including a foreign corporation that provides such services, shall disclose a record or other information pertaining to a subscriber to or customer of such service, including real-time location data but excluding the contents of electronic communications, to an investigative or law-enforcement officer pursuant to an administrative subpoena issued pursuant to § 19.2-10.2 concerning a violation of § 18.2-374.1 or 18.2-374.1:1 , former § 18.2-374.1:2 , or § 18.2-374.3 when the information sought is relevant and material to an ongoing criminal investigation.
5. When disclosure of real-time location data is not prohibited by federal law, an investigative or law-enforcement officer may obtain real-time location data without a warrant in the following circumstances:
   1. To respond to the user's call for emergency services;
   2. With the informed, affirmative consent of the owner or user of the electronic device concerned if (i) the device is in his possession; (ii) the owner or user knows or believes that the device is in the possession of an employee or agent of the owner or user with the owner's or user's consent; or (iii) the owner or user knows or believes that the device has been taken by a third party without the consent of the owner or user;
   3. With the informed, affirmative consent of the legal guardian or next of kin of the owner or user, if reasonably available, if the owner or user is reasonably believed to be deceased, is reported missing, or is unable to be contacted;
   4. To locate a child who is reasonably believed to have been abducted or to be missing and endangered; or
   5. If the investigative or law-enforcement officer reasonably believes that an emergency involving the immediate danger to a person requires the disclosure, without delay, of real-time location data concerning a specific person and that a warrant cannot be obtained in time to prevent the identified danger.

      No later than three business days after seeking disclosure of real-time location data pursuant to this subsection, the investigative or law-enforcement officer seeking the information shall file with the appropriate court a written statement setting forth the facts giving rise to the emergency and the facts as to why the person whose real-time location data was sought is believed to be important in addressing the emergency.

6. In order to comply with the requirements of § 19.2-54 , any search of the records of a foreign corporation shall be deemed to have been made in the same place wherein the search warrant was issued.
7. A Virginia corporation or other entity that provides electronic communication services or remote computing services to the general public, when properly served with a search warrant and affidavit in support of the warrant, issued by a judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia with jurisdiction over the matter, to produce a record or other information pertaining to a subscriber to or customer of such service, including real-time location data, or the contents of electronic communications, or both, shall produce the record or other information, including real-time location data, or the contents of electronic communications as if that warrant had been issued by a Virginia court. The provisions of this subsection shall only apply to a record or other information, including real-time location data, or contents of electronic communications relating to the commission of a criminal offense that is substantially similar to (i) a violent felony as defined in § 17.1-805 , (ii) an act of violence as defined in § 19.2-297.1 , (iii) any offense for which registration is required pursuant to § 9.1-902 , (iv) computer fraud pursuant to § 18.2-152.3 , or (v) identity theft pursuant to § 18.2-186.3 . The search warrant shall be enforced and executed in the Commonwealth as if it were a search warrant described in subsection C.
8. The provider of electronic communication service or remote computing service may verify the authenticity of the written reports or records that it discloses pursuant to this section by providing an affidavit from the custodian of those written reports or records or from a person to whom said custodian reports certifying that they are true and complete copies of reports or records and that they are prepared in the regular course of business. When so authenticated, no other evidence of authenticity shall be necessary. The written reports and records, excluding the contents of electronic communications, shall be considered business records for purposes of the business records exception to the hearsay rule.
9. No cause of action shall lie in any court against a provider of a wire or electronic communication service or remote computing service or such provider's officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, administrative subpoena, or subpoena under this section or the provisions of subsection E.
10. A search warrant or administrative subpoena for the disclosure of real-time location data pursuant to this section shall require the provider to provide ongoing disclosure of such data for a reasonable period of time, not to exceed 30 days. A court may, for good cause shown, grant one or more extensions, not to exceed 30 days each.
11. An investigative or law-enforcement officer shall not use any device to obtain electronic communications or collect real-time location data from an electronic device without first obtaining a search warrant authorizing the use of the device if, in order to obtain the contents of such electronic communications or such real-time location data from the provider of electronic communication service or remote computing service, such officer would be required to obtain a search warrant pursuant to this section. However, an investigative or law-enforcement officer may use such a device without first obtaining a search warrant under the circumstances set forth in subsection E. For purposes of subdivision E 5, the investigative or law-enforcement officer using such a device shall be considered to be the possessor of the real-time location data.
12. Upon issuance of any subpoena, search warrant, or order for disclosure issued under this section, upon written certification by the attorney for the Commonwealth that there is a reason to believe that the victim is under the age of 18 and that notification or disclosure of the existence of the subpoena, search warrant, or order will endanger the life or physical safety of an individual, or lead to flight from prosecution, the destruction of or tampering with evidence, the intimidation of potential witnesses, or otherwise seriously jeopardize an investigation, the court may in an ex parte proceeding order a provider of electronic communication service or remote computing service not to disclose for a period of 90 days the existence of the subpoena, search warrant, or order and written application or statement of facts to another person, other than an attorney to obtain legal advice. The nondisclosure order may be renewed for additional 90-day periods for good cause shown upon subsequent application of the attorney for the Commonwealth in an ex parte proceeding. A court issuing an order for disclosure pursuant to this section, on a motion made promptly by the service provider, may quash or modify the order if the information or records requested are unusually voluminous in nature or compliance with such order would otherwise cause an undue burden on such provider.
13. For the purposes of this section: "Electronic device" means a device that enables access to, or use of, an electronic communication service, remote computing service, or location information service, including a global positioning service or other mapping, locational, or directional information service. "Foreign corporation" means any corporation or other entity, whose primary place of business is located outside of the boundaries of the Commonwealth, that makes a contract or engages in a terms of service agreement with a resident of the Commonwealth to be performed in whole or in part by either party in the Commonwealth, or a corporation that has been issued a certificate of authority pursuant to § 13.1-759 to transact business in the Commonwealth. The making of the contract or terms of service agreement or the issuance of a certificate of authority shall be considered to be the agreement of the foreign corporation or entity that a search warrant or subpoena, which has been properly served on it, has the same legal force and effect as if served personally within the Commonwealth. "Properly served" means delivery of a search warrant or subpoena by hand, by United States mail, by commercial delivery service, by facsimile or by any other manner to any officer of a corporation or its general manager in the Commonwealth, to any natural person designated by it as agent for the service of process, or if such corporation has designated a corporate agent, to any person named in the latest annual report filed pursuant to § 13.1-775 . "Real-time location data" means any data or information concerning the current location of an electronic device that, in whole or in part, is generated, derived from, or obtained by the operation of the device. (1988, c. 889; 2009, c. 378; 2010, cc. 319, 473, 582, 720, 721; 2011, c. 392; 2014, c. 388; 2015, cc. 43, 634; 2016, cc. 549, 576, 616; 2018, c. 667.)

Editor's note. - At the direction of the Virginia Code Commission, the reference to "37.2-1000" was changed to "64.2-2000" to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2009 amendments. - The 2009 amendment by c. 378 substituted "relevant and material to an ongoing criminal investigation" for "relevant to a legitimate law enforcement inquiry" in the first sentence in subsection B; and added subsections C, D, and F; and redesignated former subsection C as subsection E.

The 2010 amendments. - The 2010 amendment by c. 319 inserted "for judicial officer or court of another any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" at the end of the first sentence of subsection C; added subsection E; and redesignated former subsections C through F as subsections D through G.

The 2010 amendment by c. 473 are nearly the same as c. 319 amendments, but, inserted "or judicial officer or court of any of the several states of the United States or its territories, or the District of Columbia when the warrant issued by such officer or such court complies with the provisions of subsection E" in the first sentence of subsection C; inserted subsection E; and redesignated former subsections E and F as subsections F and G.

Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendment by c. 582 added the language beginning "or the investigation of any missing child" at the end of the first sentence in subsection B.

The 2010 amendment by c. 720 inserted "which, for purposes of subdivisions A 2 through A 4, includes a foreign corporation that provides such services" in the introductory language of subsection A.

The 2010 amendment by c. 721 deleted "The foreign corporation may verify the authenticity of records that it produces by providing an affidavit from the person in custody of those records certifying that they are true and complete." at the end of subsection C; inserted subsection F and redesignated former subsections E and F as subsections G and H.

The 2011 amendments. - The 2011 amendment by c. 392 added the second and third sentences in subsection B.

The 2014 amendments. - The 2014 amendment by c. 388 in subsection A deleted "A" twice preceding "2" and "4," and inserted "and real-time location data"; in subdivision A 3 substituted "subsection B" for "this section"; in subsection C substituted "Except as provided in subsection D, a" for "A" and inserted "or real-time location data"; added subsections D, E, and J and redesignated the remaining subsections accordingly, and made related changes; in subsection G inserted "including real-time location data" throughout the subsection; in subsection I substituted "or remote computing service or such provider's" for "its" and inserted "administrative subpoena" and "or the provisions of subsection E"; and in subsection K added the definitions of "Electronic device" and "Real-time location data."'

The 2015 amendments. - The 2015 amendment by c. 43 added subsection K and redesignated former subsection K as subsection L.

The 2015 amendment by c. 634 added the fourth sentence in subsection C.

The 2016 amendments. - The 2016 amendment by c. 549, in subsection C, substituted "subsections" for "subsection" and inserted "and E"; and in subsection H, deleted "excluding the contents of electronic communications" following "pursuant to this section," inserted "copies of reports or records" and substituted "no other evidence of authenticity shall be necessary. The" for "the," and "excluding the contents of electronic communications, shall be considered business records for purposes of the" for "are admissible in evidence as a." Subsection C is set out in the form above at the direction of the Virginia Code Commission.

The 2016 amendment by c. 576, substituted "Subsection D or E" for "Subsection D" near the beginning of subsection C; and deleted "and the possessor of the real-time location data believes, in good faith, that an emergency involving danger to a person requires disclosure without delay" at the end of subdivision E 4.

The 2016 amendment by c. 616, inserted "issued by a circuit court" in subdivision A 3; added subsection L and redesignated former subsection L as subsection M.

The 2018 amendments. - The 2018 amendment by c. 667 inserted subdivision E 4 and made related changes.

§ 19.2-71. Who may issue process of arrest.

1. Process for the arrest of a person charged with a criminal offense may be issued by the judge, or clerk of any circuit court, any general district court, any juvenile and domestic relations district court, or any magistrate as provided for in Chapter 3 (§ 19.2-26 et seq.). However, no magistrate may issue an arrest warrant for a felony offense upon the basis of a complaint by a person other than a law-enforcement officer or an animal control officer without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense.
2. No law-enforcement officer shall seek issuance of process by any judicial officer, for the arrest of a person for an offense of aggravated murder as defined in § 18.2-31 , without prior authorization by the attorney for the Commonwealth. Failure to comply with the provisions of this subsection shall not be (i) a basis upon which a warrant may be quashed or deemed invalid, (ii) deemed error upon which a conviction or sentence may be reversed or vacated, or (iii) a basis upon which a court may prevent or delay execution of sentence. (Code 1950, § 19.1-90; 1960, c. 366; 1975, c. 495; 1999, c. 266; 2002, c. 310; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 1993, c. 930, cl. 3, as amended by Acts 1994, c. 564, cl. 2, and Acts 1996, c. 616, cl. 4, provides that the amendment to this section by Acts 1993, c. 930, cl. 1, shall become effective June 1, 1998, "if state funds are provided, including all local costs, to carry out the purposes of this bill by the General Assembly." The funding was not provided.

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment added the subsection A designator and added subsection B.

The 2002 amendments. - The 2002 amendment by c. 310 substituted "Chapter 3 ( § 19.2-26 et seq.)" for "Chapters 3 ( § 19.2-26 et seq.) and 4 ( § 19.2-49 et seq.)" in subsection A.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the last sentence of subsection A. In addition, c. 291 added "having jurisdiction over the alleged offense" at the end of subsection A. The section is set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "law-enforcement officer" in the second sentence of subsection A.

The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency" in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "of this title" from the end of the first sentence in subsection A; and substituted "an offense of aggravated murder" for "the offense of capital murder" in the first sentence of subsection B.

Law review. - For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 19; 11B M.J. Justices and Magistrates, §§ 33, 37.

Applied in Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977); Estate of Hackler v. Hackler, 44 Va. App. 51, 602 S.E.2d 426 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Show cause summons. - Service of a criminal show cause summons does not constitute an "arrest" or trigger the reporting requirements of § 19.2-390 . See opinion of Attorney General to The Honorable Dennis S. Proffitt, Chesterfield County Sheriff, 09-070, 2009 Va. AG LEXIS 48 (10/26/09).

Prosecutorial discretion. - While a prosecutor is permitted to move to amend a misdemeanor charge alleging a violation of a municipal ordinance to the equivalent misdemeanor charge alleging a violation of state law when such an arrest or summons was made by an officer of a local police department or a deputy for a local sheriff's department, any such an amendment is subject to judicial review and may be made only by an appropriate judicial officer. See opinion of Attorney General to The Honorable Richard K. Newman, Commonwealth Attorney for the City of Hopewell, 11-080, 2012 Va. AG LEXIS 8 (2/17/12).

§ 19.2-72. When it may issue; what to recite and require.

On complaint of a criminal offense to any officer authorized to issue criminal warrants he shall examine on oath the complainant and any other witnesses, or when such officer shall suspect that an offense punishable otherwise than by a fine has been committed he may, without formal complaint, issue a summons for witnesses and shall examine such witnesses. A written complaint shall be required if the complainant is not a law-enforcement officer; however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant. If upon such examination such officer finds that there is probable cause to believe the accused has committed an offense, such officer shall issue a warrant for his arrest, except that no magistrate may issue an arrest warrant for a felony offense upon the basis of a complaint by a person other than a law-enforcement officer or an animal control officer without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency having jurisdiction over the alleged offense. The warrant shall (i) be directed to an appropriate officer or officers, (ii) name the accused or, if his name is unknown, set forth a description by which he can be identified with reasonable certainty, (iii) describe the offense charged with reasonable certainty, (iv) command that the accused be arrested and brought before a court of appropriate jurisdiction in the county, city or town in which the offense was allegedly committed, and (v) be signed by the issuing officer. If a warrant is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the warrant shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. The warrant shall require the officer to whom it is directed to summon such witnesses as shall be therein named to appear and give evidence on the examination. But in a city or town having a police force, the warrant shall be directed "To any policeman, sheriff or his deputy sheriff of such city (or town)," and shall be executed by the policeman, sheriff or his deputy sheriff into whose hands it shall come or be delivered. A sheriff or his deputy may execute an arrest warrant throughout the county in which he serves and in any city or town surrounded thereby and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm is authorized to execute a warrant of arrest upon an accused in his jail. The venue for the prosecution of such criminal act shall be the jurisdiction in which the offense occurred.

(Code 1950, § 19.1-91; 1960, c. 366; 1975, c. 495; 1991, c. 420; 2000, c. 170; 2007, c. 412; 2009, cc. 291, 344; 2010, c. 240; 2011, cc. 205, 223; 2013, c. 207; 2016, c. 204; 2021, Sp. Sess. I, cc. 524, 542.)

Cross references. - As to issuance of summons instead of warrant in certain cases, see § 19.2-73 .

For constitutional provision as to general warrants, see Va. Const., Art. I, § 10.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2000 amendments. - The 2000 amendment by c. 170 added the last sentence.

The 2007 amendments. - The 2007 amendment by c. 412, in the next-to-last sentence, inserted "or town" following "and in any city" and "and effect an arrest in any city or town surrounded thereby as a result of a criminal act committed during the execution of such warrant" at the end; and added the last sentence.

The 2009 amendments. - The 2009 amendments by cc. 291 and 344 are nearly identical, and added the second sentence; and in the third sentence, added the exception at the end. In addition, c. 291 inserted "having jurisdiction over the alleged offense" at the end of the third sentence. The sentence has been set out in the form above at the direction of the Virginia Code Commission.

The 2010 amendments. - The 2010 amendment by c. 240 inserted "or an animal control officer" following "a law-enforcement officer" in the third sentence of the paragraph.

The 2011 amendments. - The 2011 amendments by cc. 205 and 223 are identical, and in the second sentence, deleted "whenever practicable" following "complaint shall be required," and in the third sentence, substituted "without prior authorization by the attorney for the Commonwealth or by a law-enforcement agency" for "without prior consultation by the magistrate with the attorney for the Commonwealth or, if no attorney for the Commonwealth is available, without prior consultation with a law-enforcement agency."

The 2013 amendments. - The 2013 amendment by c. 207 inserted the next-to-last sentence.

The 2016 amendments. - The 2016 amendment by c. 204 inserted "however, if no arrest warrant is issued in response to a written complaint made by such complainant, the written complaint shall be returned to the complainant" in the second sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and inserted the fifth sentence.

Law review. - For note, "Using DNA Profiles to Obtain 'John Doe' Arrest Warrants and Indictments," see 58 Wash. & Lee L. Rev. 1585 (2001).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 4; 5B M.J. Criminal Procedure, § 12; 19 M.J. Warrants, § 2.

§ 19.2-73. Issuance of summons instead of warrant in certain cases.

1. In any misdemeanor case or in any class of misdemeanor cases, or in any case involving complaints made by any state or local governmental official or employee having responsibility for the enforcement of any statute, ordinance or administrative regulation, the magistrate or other issuing authority having jurisdiction may issue a summons instead of a warrant when there is reason to believe that the person charged will appear in the courts having jurisdiction over the trial of the offense charged.
2. If any person under suspicion for driving while intoxicated has been taken to a medical facility for treatment or evaluation of his medical condition, the officer at the medical facility may issue, on the premises of the medical facility, a summons for a violation of § 18.2-266 , 18.2-266 .1, 18.2-272 , or 46.2-341.24 and for refusal of tests in violation of subsection A or B of § 18.2-268.3 or subsection A of § 46.2-341.26:3 , in lieu of securing a warrant and without having to detain that person, provided that the officer has probable cause to place him under arrest. The issuance of such summons shall be deemed an arrest for purposes of Article 2 (§ 18.2-266 et seq.) of Chapter 7 of Title 18.2.
3. Any person on whom such summons is served shall appear on the date set forth in same, and if such person fails to appear in such court at such time and on such date then he shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. (Code 1950, § 19.1-146; 1972, c. 461; 1975, c. 495; 1978, c. 500; 1981, c. 382; 2005, c. 425; 2010, c. 840; 2017, c. 623.)

The 2005 amendments. - The 2005 amendment by c. 425 redesignated the former subsection B as subsection C and inserted subsection B.

The 2010 amendments. - The 2010 amendment by c. 840, in subsection B, in the first sentence, deleted "arresting" preceding "officer" and added "and without having to detain that person, provided that the officer has probable cause to place him under arrest," and added the last sentence.

The 2017 amendments. - The 2017 amendment by c. 623, effective March 16, 2017, in subsection B, inserted "or B" preceding "of § 18.2-268.3 ."

Law review. - For annual survey article, "Criminal Law and Procedure," see 46 U. Rich. L. Rev. 59 (2011).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 11B M.J. Justices and Magistrates, § 33.

§ 19.2-73.1. Notice of issuance of warrant or summons; appearance; failure to appear.

In any misdemeanor case or in any class of misdemeanor cases and in a Class 5 or Class 6 felony case, the chief of police of the city or county or his designee, or the sheriff or deputy sheriff of the county, if the county has no police department, in which the case is pending may notify the accused of the issuance of the warrant or summons and direct the accused to appear at the time and place directed for the purpose of the execution of the summons or warrant. However, the issuing judicial officer may direct the execution of such process prior to any such notification. If the accused does not appear, then the warrant or summons shall be executed and returned as provided by § 19.2-76 .

(1979, c. 335; 1991, c. 162; 1993, c. 350.)

§ 19.2-73.2. Law-enforcement officers to issue subpoenas; penalty.

Law-enforcement officers as defined in § 9.1-101 and state police officers, in the course of their duties, in the investigation of any Class 3 or Class 4 misdemeanor or any traffic infraction, may, within seventy-two hours of the time of the offense, issue a subpoena to any witness to appear in court and testify with respect to any such criminal charge or traffic infraction brought against any person as a result of such investigation. The return of service thereof shall be made within seventy-two hours after service to the appropriate court clerk. A subpoena so issued shall have the same force and effect as if issued by the court.

Any person failing to appear in response to a subpoena issued as provided in this section shall be punished as provided by law.

(1995, c. 335.)

§ 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special conservators of the peace.

1. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 . A. 1.  Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 , or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82 .
   2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388 , the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
   3. Unless otherwise authorized by law, any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.). Reports to the Central Criminal Records Exchange concerning such persons shall be made pursuant to subdivision A 2 of § 19.2-390 and subsection C of § 19.2-390 . Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82. Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128 , regardless of the disposition of, and in addition to, the charge upon which he was originally arrested. Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.
   Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.
2. Conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) may issue summonses pursuant to this section, if such officers are in uniform or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.
3. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2-388 . If the summons is issued for an offense in violation of any county, city, or town ordinance that is similar to any provision of this Code, the summons shall reference the offense using both the citation corresponding to the county, city, or town ordinance and the specific provision of this Code. (Code 1950, § 19.1-92.1; 1973, c. 98; 1974, c. 481; 1975, c. 495; 1976, c. 753; 1978, c. 500; 1979, cc. 679, 680; 1980, c. 492; 1981, c. 382; 1982, cc. 485, 500; 1984, c. 24; 1988, c. 455; 1995, c. 471; 2010, c. 840; 2014, c. 543; 2019, cc. 782, 783; 2021, Sp. Sess. I, cc. 524, 542.)

Cross references. - As to limitation on powers of registered armed security officers, see § 9.1-146 .

As to punishment for Class 1, Class 2, Class 3, and Class 4 misdemeanors, see § 18.2-11 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 3 provides: "That the Attorney General, after consultation with the Committee on District Courts, the Superintendent of State Police, and the Commissioner of the Department of Motor Vehicles, shall amend the uniform summons described in § 46.2-388 of the Code of Virginia to reflect the amendments to the provisions of subsection C of § 19.2-74 of the Code of Virginia, as amended by this act, by July 1, 2021.

2021 Acts, Sp. Sess. I, cc. 524 and 542, cl. 17 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2010 amendments. - The 2010 amendment by c. 840 substituted "as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81 " for "as otherwise provided in Title 46.2, or § 18.2-266 " in the first sentence in subdivision A 1.

The 2014 amendments. - The 2014 amendment by c. 543 in subsection B substituted "Conservators" for "Special policemen of the counties as provided in § 15.2-1737 , special policemen or conservators," deleted "of this title and special policemen appointed by authority of a city's charter" following "( § 19.2-12 et seq.)," and made a minor stylistic change.

The 2019 amendments. - The 2019 amendments by cc. 782 and 783 are identical, and rewrote subdivision A 3, which read: "Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 ( § 19.2-387 et seq.) of this title. Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390 ."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 524 and 542, effective July 1, 2021, are identical and added the second sentence in subsection C.

Law review. - For survey of Virginia criminal law for the year 1978-1979, see 66 Va. L. Rev. 241 (1980).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

For 2007 annual survey article, "Criminal Law and Procedure," see 42 U. Rich. L. Rev. 311 (2007).

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 12; 8B M.J. Forgery, §§ 9, 24.

§ 19.2-74.1.

Repealed by Acts 1981, c. 382.

§ 19.2-75. Copy of process to be left with accused; exception.

Except as provided in § 46.2-936 , any process issued against a person charged with a criminal offense shall be in duplicate and the officer serving such process shall leave a copy with the person charged.

(Code 1950, § 19.1-92; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 23; 19 M.J. Warrants, § 4.

§ 19.2-76. Execution and return of warrant, capias or summons; arrest outside county or city where charge is to be tried.

A law-enforcement officer may execute within his jurisdiction a warrant, capias or summons issued anywhere in the Commonwealth. A jail officer as defined in § 53.1-1 employed at a regional jail or jail farm may execute upon a person being held in his jail a warrant, capias or summons issued anywhere in the Commonwealth. A warrant or capias shall be executed by the arrest of the accused, and a summons shall be executed by delivering a copy to the accused personally.

If the accused is a corporation, partnership, unincorporated association or legal entity other than an individual, a summons may be executed by service on the entity in the same manner as provided in Title 8.01 for service of process on that entity in a civil proceeding. However, if the summons is served on the entity by delivery to a registered agent or to any other agent who is not an officer, director, managing agent or employee of the entity, such agent shall not be personally subject to penalty for failure to appear as provided in § 19.2-128 , nor shall the agent be subject to punishment for contempt for failure to appear under his summons as provided in § 19.2-129 .

The law-enforcement officer or jail officer executing a warrant or capias shall endorse the date of execution thereon and make return thereof to a judicial officer. The law-enforcement officer executing a summons shall endorse the date of execution thereon and make return thereof to the court to which the summons is returnable.

Whenever a person is arrested upon a warrant or capias in a county or city other than that in which the charge is to be tried, the law-enforcement officer or jail officer making the arrest shall either (i) bring the accused forthwith before a judicial officer in the locality where the arrest was made or where the charge is to be tried or (ii) commit the accused to the custody of an officer from the county or city where the charge is to be tried who shall bring the accused forthwith before a judicial officer in the county or city in which the charge is to be tried. The judicial officer before whom the accused is brought shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail for transfer forthwith to the county or city where the charge is to be tried.

(Code 1950, §§ 19.1-98, 19.1-99; 1960, c. 366; 1975, c. 495; 1979, c. 661; 1993, c. 431; 1994, c. 933; 1997, c. 10; 1998, c. 615; 2013, c. 207.)

Cross references. - As to summons for use of toll facility without payment of toll, see § 46.2-819.3 .

The 2013 amendments. - The 2013 amendment by c. 207 inserted the second sentence in the first paragraph; and inserted "or jail officer" in the first sentence of the third and fourth paragraphs.

Research References. - Virginia Forms (Matthew Bender). No. 9-407. Warrant of Arrest (Bad Check); No. 9-410. Summons of Corporation--Misdemeanor/Felony; No. 9-602. Recall of Process.

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 17, 19; 19 M.J. Warrants, § 4.

§ 19.2-76.1. Submission of quarterly reports concerning unexecuted felony and misdemeanor warrants and other criminal process; destruction; dismissal.

It shall be the duty of the chief law-enforcement officer of the police department or sheriff's office, whichever is responsible for such service, in each county, town or city of the Commonwealth to submit quarterly reports to the attorney for the Commonwealth for the county, town or city concerning unexecuted felony and misdemeanor arrest warrants, summonses, capiases or other unexecuted criminal processes as hereinafter provided. The reports shall list those existing felony arrest warrants in his possession that have not been executed within seven years of the date of issuance, those misdemeanor arrest warrants, summonses and capiases and other criminal processes in his possession that have not been executed within three years from the date of issuance, and those unexecuted misdemeanor arrest warrants, summonses and capiases in his possession that were issued for a now deceased person, based on mistaken identity or as a result of any other technical or legal error. The reports shall be submitted in writing no later than the tenth day of April, July, October, and January of each year, together with the unexecuted felony and misdemeanor warrants, or other unexecuted criminal processes listed therein. Upon receipt of the report and the warrants listed therein, the attorney for the Commonwealth shall petition the circuit court of the county or city for the destruction of such unexecuted felony and misdemeanor warrants, summonses, capiases or other unexecuted criminal processes. The attorney for the Commonwealth may petition that certain of the unexecuted warrants, summonses, capiases and other unexecuted criminal processes not be destroyed based upon justifiable continuing, active investigation of the cases. The circuit court shall order the destruction of each such unexecuted felony warrant and each unexecuted misdemeanor warrant, summons, capias and other criminal process except (i) any warrant that charges aggravated murder and (ii) any unexecuted criminal process whose preservation is deemed justifiable by the court. No arrest shall be made under the authority of any warrant or other process which has been ordered destroyed pursuant to this section. Nothing in this section shall be construed to relate to or affect the time within which a prosecution for a felony or a misdemeanor shall be commenced.

Notwithstanding the foregoing, an attorney for the Commonwealth may at any time move for the dismissal and destruction of any unexecuted warrant or summons issued by a magistrate upon presentation of such warrant or summons to the court in which the warrant or summons would otherwise be returnable. The court shall not order the dismissal and destruction of any warrant that charges aggravated murder and shall not order the dismissal and destruction of an unexecuted criminal process whose preservation is deemed justifiable by the court. Dismissal of such a warrant or summons shall be without prejudice.

As used herein, the term "chief law-enforcement officer" refers to the chiefs of police of cities, counties and towns and sheriffs of cities and counties, unless a political subdivision has otherwise designated its chief law-enforcement officer by appropriate resolution or ordinance, in which case the local designation shall be controlling.

(1976, c. 252; 1979, c. 34; 1982, c. 608; 1985, c. 199; 1990, c. 626; 1991, c. 542; 1993, c. 550; 2003, c. 147; 2010, c. 652; 2011, cc. 336, 347; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2003 amendments. - The 2003 amendment by c. 147, in the second sentence of the first paragraph, twice substituted "that" for "which," deleted "and" following the first occurrence of "issuance," and inserted "and those unexecuted misdemeanor arrest warrants, summonses and capiases in his possession that were issued for a now deceased person, based on mistaken identity or as a result of any other technical or legal error" at the end of the sentence.

The 2010 amendments. - The 2010 amendment by c. 652 inserted the second paragraph.

The 2011 amendments. - The 2011 amendments by cc. 336 and 347 are identical, and in the second paragraph, inserted "and destruction" in the first sentence and added the second sentence.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "that charges aggravated murder" for "which charges capital murder" in clause (i) of the first paragraph and in the second sentence of the second paragraph.

Law review. - For annual survey article, see "Criminal Law and Procedure," 48 U. Rich. L. Rev. 63 (2013).

Research References. - Virginia Forms (Matthew Bender). No. 9-602. Recall of Process.

§ 19.2-76.2. Mailing of summons in certain cases.

Notwithstanding the provisions of § 19.2-76 , whenever a summons for a violation of a county, city or town parking ordinance is served in any county, city or town it may be executed by mailing by first-class mail a copy thereof to the address of the owner of the vehicle as shown on the records of the Department of Motor Vehicles. In addition, whenever a summons for a violation of a county, city or town trash ordinance punishable as a misdemeanor under § 15.2-901 is served in any county, city or town, it may be executed by mailing a copy by first-class mail to the person who occupies the subject premises. If the person fail to appear on the date of return set out in the summons mailed pursuant to this section, the summons shall be executed in the manner set out in § 19.2-76.3 of this Code.

No proceedings for contempt or arrest of a person summoned by mailing shall be instituted for his failure to appear on the return date of the summons.

(1977, c. 233; 1978, c. 781; 1983, c. 254; 1984, c. 119.)

OPINIONS OF THE ATTORNEY GENERAL

Withdrawal or dismissal of warrant or summons. - Neither a chief of police nor a Commonwealth's attorney has the authority to unilaterally withdraw or dismiss a lawfully issued arrest warrant or summons. See opinion of Attorney General to The Honorable Ralph B. Robertson, Judge, Richmond General District Court, Criminal Division, 03-025 (5/30/03).

Execution of summons. - A prosecution for violating § 46.2-844 (passing a stopped school bus), which is based on a video monitoring system, may not be initiated by mailing a summons, but must be instituted by a law enforcement officer issuing a summons to the alleged violator See opinion of Attorney General to Larry W. Davis, Esquire, County Attorney for Albemarle County, No. 15-047, 2015 Va. AG LEXIS 29 (10/2/15).

§ 19.2-76.3. Failure to appear on return date for summons issued under § 19.2-76.2.

1. If any person fails to appear on the date of the return contained in the summons issued in accordance with § 19.2-76.2 , then a summons shall be delivered to the sheriff of the county, city, or town or to another authorized process server for service on that person as set out in § 8.01-296 .
2. If such person then fails to appear on the date of return as contained in the summons so issued, a summons shall be executed in the manner set out in § 19.2-76 .
3. No proceedings for contempt or arrest of any person summoned under the provisions of this section shall be instituted unless such person has been personally served with a summons and has failed to appear on the return date contained therein.

   (1983, c. 254; 1994, c. 642; 2016, cc. 242, 354.)

The 2016 amendments. - The 2016 amendments by cc. 242 and 354 are identical, and inserted "or to another authorized process server" in subsection A.

§ 19.2-77. Escape, flight and pursuit; arrest anywhere in Commonwealth.

Whenever a person in the custody of an officer shall escape or whenever a person shall flee from an officer attempting to arrest him, such officer, with or without a warrant, may pursue such person anywhere in the Commonwealth and, when actually in close pursuit, may arrest him wherever he is found. If the arrest is made in a county or city adjoining that from which the accused fled, or in any area of the Commonwealth within one mile of the boundary of the county or city from which he fled, the officer may forthwith return the accused before the proper official of the county or city from which he fled. If the arrest is made beyond the foregoing limits, the officer shall proceed according to the provisions of § 19.2-76 , and if such arrest is made without a warrant, the officer shall procure a warrant from the magistrate serving the county or city wherein the arrest was made, charging the accused with the offense committed in the county or city from which he fled.

(Code 1950, § 19.1-94; 1960, c. 366; 1975, c. 495; 1992, c. 881; 2008, cc. 551, 691.)

Cross references. - As to warrants for escaped patients of state hospital, see §§ 37.2-834 and 37.2-835 .

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "magistrate serving the county" for "magistrate of the county" in the last sentence.

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 7; 16 M.J. Searches and Seizures, § 7.

§ 19.2-78. Uniform of officer making arrest.

All officers whose duties are to make arrests acting under the authority of any law of this Commonwealth or any subdivision thereof, who shall make any arrest, search or seizure on any public road or highway of this Commonwealth shall be dressed at the time of making any such arrest, search or seizure in such uniform as he may customarily wear in the performance of his duties which will clearly show him to casual observation to be an officer.

Nothing in this section shall render unlawful any arrest, search or seizure by an officer who is not in such customary uniform.

(Code 1950, §§ 19.1-95, 19.1-96; 1960, c. 366; 1975, c. 495.)

Cross references. - As to unlawful wearing of officer's uniform, see § 18.2-175 .

For provisions concerning adoption of uniforms for State Police, see §§ 52-9.1 and 52-9.2 .

§ 19.2-79. Arrest by officers of other states of United States.

Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this Commonwealth in close pursuit, and continues within this Commonwealth in such close pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state shall have the same authority to arrest and hold in custody such person as members of a duly organized state, county or municipal peace unit of this Commonwealth have to arrest and hold in custody a person on the ground that he has committed a felony in this Commonwealth, if the state from which such person has fled extends similar privileges to any member of a duly organized state, county or municipal peace unit of this Commonwealth.

If an arrest is made in this Commonwealth by an officer of another state in accordance with the provisions of the first paragraph of this section, he shall without unnecessary delay take the person arrested before a judge of a general district court, or of the circuit court, of the county or city in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful he shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the Governor. If the judge determines that the arrest was unlawful he shall discharge the person arrested.

The first paragraph of this section shall not be construed so as to make unlawful any arrest in this Commonwealth which would otherwise be lawful.

For the purpose of this section the word "State" shall include the District of Columbia.

(Code 1950, § 19.1-97; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, § 7; 5B M.J. Criminal Procedure, §§ 13, 17.

§ 19.2-80. Duty of arresting officer; bail.

In any case in which an officer does not issue a summons pursuant to § 19.2-74 or § 46.2-936 , a law-enforcement officer making an arrest under a warrant or capias shall bring the arrested person without unnecessary delay before a judicial officer. The judicial officer shall immediately conduct a bail hearing and either admit the accused to bail or commit him to jail. However, if (i) the accused is charged with a misdemeanor and is brought before a judge of the court having jurisdiction to try the case and (ii) both the accused and the Commonwealth consent, the judge may proceed to trial instead of conducting a bail hearing.

(Code 1950, § 19.1-98; 1960, c. 366; 1975, c. 495; 1979, c. 679; 1986, c. 327; 1997, c. 10.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, §§ 13, 14, 17, 19.

§ 19.2-80.1. When arrested person operating motor vehicle; how vehicle removed from scene of arrest.

In any case in which a police officer arrests the operator of a motor vehicle and there is no legal cause for the retention of the motor vehicle by the officer, the officer shall allow the person arrested to designate another person who is present at the scene of the arrest and a licensed driver to drive the motor vehicle from the scene to a place designated by the person arrested. If such a designation is not made, the officer may cause the vehicle to be taken to the nearest appropriate place for safekeeping.

(1981, c. 306.)

§ 19.2-80.2. Duty of arresting officer; providing magistrate or court with criminal history information.

In any case in which an officer proceeds under §§ 19.2-76 , 19.2-80 and 19.2-82 , such officer shall, to the extent possible, obtain and provide the magistrate or court with the arrested person's criminal history information prior to any proceeding under Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. A pretrial services agency established pursuant to § 19.2-152.2 may, in lieu of the arresting officer, provide the criminal history to the magistrate or court.

(1999, cc. 829, 846; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133, in the last sentence, substituted "pretrial services agency" for "pretrial services program" and " § 19.2-152.2 " for " § 19.2-152.4 ."

§ 19.2-81. Arrest without warrant authorized in certain cases.

1. The following officers shall have the powers of arrest as provided in this section:
   1. Members of the State Police force of the Commonwealth;
   2. Sheriffs of the various counties and cities, and their deputies;
   3. Members of any county police force or any duly constituted police force of any city or town of the Commonwealth;
   4. The Commissioner, members and employees of the Marine Resources Commission granted the power of arrest pursuant to § 28.2-900 ;
   5. Regular conservation police officers appointed pursuant to § 29.1-200 ;
   6. United States Coast Guard and United States Coast Guard Reserve commissioned, warrant, and petty officers authorized under § 29.1-205 to make arrests;
   7. Conservation officers appointed pursuant to § 10.1-115 ;
   8. Full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 ;
   9. Special agents of the Virginia Alcoholic Beverage Control Authority;
   10. Campus police officers appointed under Article 3 (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1; and
   11. Members of the Division of Capitol Police.
2. Such officers may arrest without a warrant any person who commits any crime in the presence of the officer and any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence. Such officers may arrest without a warrant any person whom the officer has probable cause to suspect of operating any watercraft or motorboat while (i) intoxicated in violation of subsection B of § 29.1-738 or a substantially similar ordinance of any county, city, or town in the Commonwealth or (ii) in violation of an order issued pursuant to § 29.1-738.4 and may thereafter transfer custody of the person arrested to another officer, who may obtain a warrant based upon statements made to him by the arresting officer.
3. Any such officer may, at the scene of any accident involving a motor vehicle, watercraft as defined in § 29.1-733.2 or motorboat, or at any hospital or medical facility to which any person involved in such accident has been transported, or in the apprehension of any person charged with the theft of any motor vehicle, on any of the highways or waters of the Commonwealth, upon reasonable grounds to believe, based upon personal investigation, including information obtained from eyewitnesses, that a crime has been committed by any person then and there present, apprehend such person without a warrant of arrest. For purposes of this section, "the scene of any accident" shall include a reasonable location where a vehicle or person involved in an accident has been moved at the direction of a law-enforcement officer to facilitate the clearing of the highway or to ensure the safety of the motoring public.
4. Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of driving or operating a motor vehicle, watercraft or motorboat while intoxicated in violation of § 18.2-266 , 18.2-266 .1, 46.2-341.24 , or subsection B of § 29.1-738 ; or a substantially similar ordinance of any county, city, or town in the Commonwealth, whether or not the offense was committed in such officer's presence. Such officers may, within three hours of the alleged offense, arrest without a warrant at any location any person whom the officer has probable cause to suspect of operating a watercraft or motorboat in violation of an order issued pursuant to § 29.1-738.4 , whether or not the offense was committed in such officer's presence.
5. Such officers may arrest, without a warrant or a capias, persons duly charged with a crime in another jurisdiction upon receipt of a photocopy of a warrant or a capias, telegram, computer printout, facsimile printout, a radio, telephone or teletype message, in which photocopy of a warrant, telegram, computer printout, facsimile printout, radio, telephone or teletype message shall be given the name or a reasonably accurate description of such person wanted and the crime alleged.
6. Such officers may arrest, without a warrant or a capias, for an alleged misdemeanor not committed in his presence when the officer receives a radio message from his department or other law-enforcement agency within the Commonwealth that a warrant or capias for such offense is on file.
7. Such officers may also arrest without a warrant for an alleged misdemeanor not committed in their presence involving (i) shoplifting in violation of § 18.2-96 or 18.2-103 or a similar local ordinance, (ii) carrying a weapon on school property in violation of § 18.2-308.1 , (iii) assault and battery, (iv) brandishing a firearm in violation of § 18.2-282 , or (v) destruction of property in violation of § 18.2-137 , when such property is located on premises used for business or commercial purposes, or a similar local ordinance, when any such arrest is based on probable cause upon reasonable complaint of the person who observed the alleged offense. The arresting officer may issue a summons to any person arrested under this section for a misdemeanor violation involving shoplifting. (Code 1950, § 19.1-100; 1960, c. 366; 1974, c. 241; 1975, c. 495; 1976, cc. 515, 570; 1977, c. 97; 1979, c. 268; 1982, c. 272; 1983, c. 206; 1984, c. 534; 1985, c. 507; 1988, cc. 353, 744, 752, 853; 1989, c. 726; 1990, cc. 635, 744, 784; 1995, c. 465; 1996, cc. 866, 929, 1015; 1998, c. 684; 2004, c. 949; 2005, cc. 88, 435; 2008, cc. 460, 737; 2010, c. 840; 2011, cc. 510, 643; 2012, c. 776; 2013, c. 787; 2014, c. 543; 2015, cc. 38, 730; 2017, c. 208.)

Cross references. - For arrests without warrants in cases of flight and pursuit, see § 19.2-77 .

For statute authorizing arrests without warrants in connection with the extradition of criminals, see § 19.2-100 .

Editor's note. - Acts 2013, c. 787, cl. 3 provides: "That the provisions of this act shall become effective on July 1, 2014."

Acts 2015, cc. 38 and 730, cl. 4, as amended by Acts 2017, cc. 698 and 707, cl. 2, provides: "That the provisions of this act shall become effective on January 15, 2018, except that the provisions of the (i) thirteenth, fourteenth, and fifteenth enactments of this act shall become effective on July 1, 2015; (ii) third enactment of this act shall become effective on July 1, 2018; and (iii) eleventh enactment of this act shall become effective on January 1, 2019."

At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subdivision A 10 to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 2004 amendments. - The 2004 amendment by c. 949, in subdivision 7, added the last sentence in the fourth paragraph.

The 2005 amendments. - The 2005 amendment by c. 88 added subdivision 8 and made related changes.

The 2005 amendment by c. 435 inserted "or a capias" in the fifth and sixth paragraphs.

The 2008 amendments. - The 2008 amendment by c. 460 added subdivision 9; and made related changes.

The 2008 amendment by c. 737 inserted the present second sentence in the third paragraph following subdivision 8 [now subdivision 9].

The 2010 amendments. - The 2010 amendment by c. 840 added the subsection designations; deleted the last paragraph in subsection B, which dealt with an officer's power to arrest without a warrant persons intoxicated while in violation of subsection B of § 29.1-738 or of an order issued pursuant to § 29.1-738.4 ; and rewrote subsection D, in part by adding the last sentence.

The 2011 amendments. - The 2011 amendment by c. 510 added the last paragraph in subsection B.

The 2011 amendment by c. 643 added subdivision A 10 and made a related change.

The 2012 amendments. - The 2012 amendment by c. 776 inserted subdivision A 11 and made a related change.

The 2013 amendments. - The 2013 amendment by c. 787, effective July 1, 2014, substituted " § 29.1-733.2 " for " § 29.1-712 " in subsection C.

The 2014 amendments. - The 2014 amendment by c. 543 deleted subdivision A 7 and redesignated the remaining subdivisions accordingly.

The 2015 amendments. - The 2015 amendments by cc. 38 and 730, effective January 15, 2018, are identical, and substituted "Virginia Alcoholic Beverage Control Authority" for "Department of Alcoholic Beverage Control" in subdivision A 9.

The 2017 amendments. - The 2017 amendment by c. 208 added subdivision A 11, and made related changes.

Law review. - For comment on the presence requirement and the "police-team" rule in arrest for misdemeanors, see 26 Wash. & Lee L. Rev. 119 (1969). For survey of recent legislation on criminal procedure - authority of police to question and search suspicious persons, see 5 U. Rich. L. Rev. 191 (1970). For survey of Virginia criminal law and procedure for the year 1969-1970, see 56 Va. L. Rev. 1572 (1970). For note comparing Virginia law with a model implied consent statute for drunken drivers, see 12 Wm. & Mary L. Rev. 654 (1971). For survey of Virginia law on criminal procedure for the year 1973-1974, see 60 Va. L. Rev. 1505 (1974). For survey of Virginia law on criminal procedure for the year 1977-1978, see 64 Va. L. Rev. 1419 (1978). For survey of Virginia law on criminal procedure for the year 1978-1979, see 66 Va. L. Rev. 261 (1980). For note on the constitutionality of an identification requirement for lawfully stopped persons, see 37 Wash. & Lee L. Rev. 253 (1980). For note, "Criminal Procedure and Criminal Law: Virginia Supreme Court Decisions During the 70's," see 15 U. Rich. L. Rev. 585 (1981). For article, "State Court Activism and Searches Incident to Arrest," see 68 Va. L. Rev. 1085 (1982). For note on stop and frisk based upon anonymous telephone tips, see 39 Wash. & Lee L. Rev. 1437 (1982). For comment on spouse abuse in Virginia, see 17 U. Rich. L. Rev. 633 (1983). For 1985 survey of Virginia criminal procedure, see 19 U. Rich. L. Rev. 697 (1985). For comment on what standard governs investigative stops in Virginia, see 9 G.M.U. L. Rev. 313 (1987).

For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

For note, "New Theories of Guilt on Appeal in Virginia Criminal Cases," see 50 Wm. and Mary L. Rev. 2177 (2009).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 4, 6, 8-10, 12; 16 M.J. Right of Privacy, § 1.

§ 19.2-81.1. Arrest without warrant by correctional officers in certain cases.

Any correctional officer, as defined in § 53.1-1 , may arrest, in the same manner as provided in § 19.2-81 , persons for crimes involving:

1. The escape of an inmate from a correctional institution, as defined in § 53.1-1 ;
2. Assisting an inmate to escape from a correctional institution, as defined in § 53.1-1 ;
3. The delivery of contraband to an inmate in violation of § 18.2-474 or § 18.2-474.1 ; and
4. Any other criminal offense which may contribute to the disruption of the safety, welfare, or security of the population of a correctional institution.

   (1976, c. 752.)

§ 19.2-81.2. Power of correctional officers and designated noncustodial employees to detain.

1. A correctional officer, as defined in § 53.1-1 , who has completed the minimum training standards established by the Department of Criminal Justice Services, or other noncustodial employee of the Department of Corrections who has been designated to carry a weapon by the Director of the Department of Corrections pursuant to § 53.1-29 of the Code and who has completed the basic course in detention training as approved by the Department of Criminal Justice Services, may, while on duty in or on the grounds of a correctional institution, or with custody of prisoners without the confines of a correctional institution, detain any person whom he has reasonable suspicion to believe has committed a violation of §§ 18.2-473 through 18.2-475 , or of aiding or abetting a prisoner in violating the provisions of § 53.1-203 . Such detention shall be for the purpose of summoning a law-enforcement officer in order that the law-enforcement officer can arrest the person who is alleged to have violated any of the above sections.
2. Any employee of the Department of Corrections having the authority to detain any person pursuant to subsection A hereof shall not be held civilly liable for unlawful detention, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so detained, whether such detention takes place within or without the grounds of a correctional institution, provided that, in causing the detention of such person, the employee had at the time of the detention reasonable suspicion to believe that the person committed a violation for which the detention was undertaken.
3. It is the purpose and intent of this section to ensure that the safety, stability, welfare and security of correctional institutions be preserved insofar as possible.

   (1976, c. 740; 1979, c. 642; 1984, cc. 720, 779.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1976 act having been 19.2-81.1 .

§ 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.

1. Any law-enforcement officer with the powers of arrest 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.
2. A law-enforcement officer having probable cause to believe that a violation of § 18.2-57.2 or 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 predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of family and household members, (iii) prior complaints of family abuse by the allegedly abusing person involving the family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
3. A law-enforcement officer having probable cause to believe that a violation of § 18.2-60.4 has occurred that involves physical aggression shall arrest and take into custody the person he has probable cause to believe, based on the totality of the circumstances, was the predominant physical aggressor unless there are special circumstances which would dictate a course of action other than an arrest. The standards for determining who is the predominant physical aggressor shall be based on the following considerations: (i) who was the first aggressor, (ii) the protection of the health and safety of the person to whom the protective order was issued and the person's family and household members, (iii) prior acts of violence, force, or threat, as defined in § 19.2-152.7:1 , by the person against whom the protective order was issued against the person protected by the order or the protected person's family or household members, (iv) the relative severity of the injuries inflicted on persons involved in the incident, (v) whether any injuries were inflicted in self-defense, (vi) witness statements, and (vii) other observations.
4. Regardless of whether an arrest is made, the officer shall file a written report with his department, which shall state whether any arrests were made, and if so, the number of arrests, specifically including any incident in which he has probable cause to believe family abuse has occurred, and, where required, including a complete statement in writing that there are special circumstances that would dictate a course of action other than an arrest. The officer shall provide the allegedly abused person or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 , both orally and in writing, information regarding the legal and community resources available to the allegedly abused person or person protected by the order. Upon request of the allegedly abused person or person protected by the order, the department shall make a summary of the report available to the allegedly abused person or person protected by the order.
5. In every case in which a law-enforcement officer makes an arrest under this section for a violation of § 18.2-57.2 , 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, except if the person arrested is a minor, a petition for an emergency protective order shall not be required. 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, except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required.
6. A law-enforcement officer investigating any complaint of family abuse, including but not limited to assault and battery against a family or household member shall, upon request, transport, or arrange for the transportation of an abused person to a hospital or safe shelter, or to appear before a 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.
7. The definition of "family or household member" in § 16.1-228 applies to this section.
8. As used in this section, "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 any campus police officer appointed under Article 3  (§ 23.1-809 et seq.) of Chapter 8 of Title 23.1, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of this Commonwealth; (ii) any member of an auxiliary police force established pursuant to § 15.2-1731 ; and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 . Part-time employees are compensated officers who are not full-time employees as defined by the employing police department or sheriff's office. (1991, c. 715; 1992, c. 886; 1995, cc. 413, 433; 1996, c. 866; 1997, c. 603; 1998, c. 569; 1999, cc. 697, 721, 807; 2002, cc. 810, 818; 2004, c. 1016; 2008, cc. 551, 691; 2011, cc. 445, 480; 2012, cc. 776, 827; 2014, cc. 779, 797.)

Cross references. - As to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .

Editor's note. - At the direction of the Virginia Code Commission, "Article 3 ( § 23.1-809 et seq.) of Chapter 8 of Title 23.1" was substituted for "Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H to conform to the recodification of Title 23 by Acts 2016, c. 588, effective October 1, 2016.

The 1999 amendments. - The 1999 amendments by cc. 697 and 721, are identical, and rewrote subsection F, which formerly read: "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."

The 1999 amendment by c. 807, in subsection D, inserted "except if the person arrested is a minor, a petition for an emergency protective order shall not be required" in the first sentence, and added "except if the suspected abuser is a minor, a petition for an emergency protective order shall not be required" in the second sentence.

The 2002 amendments. - The 2002 amendments by cc. 810 and 818 are identical, and rewrote subsection C; and substituted "member shall" for "member may" in the first sentence in subsection E.

The 2004 amendments. - The 2004 amendment by c. 1016, in subsection B, substituted "predominant" for "primary" in the first sentence and added the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and deleted one of the section symbols preceding "18.2-87.2" in subsection A; and substituted "a hospital or safe shelter, or to appear before a magistrate" for "a hospital, safe shelter, or magistrate" in subsection E.

The 2011 amendments. - The 2011 amendments by cc. 245 and 480 are identical, and added present subsection C and redesignated former subsections C through G as subsections D through H; in subsection D, inserted "or the person protected by an order issued pursuant to § 19.2-152.8 , 19.2-152.9 , or 19.2-152.10 " and "or person protected by the order" in the second sentence, and inserted "or person protected by the order" two times in the last sentence; and inserted "for a violation of § 18.2-57.2 ," in the first sentence of subsection E.

The 2012 amendments. - The 2012 amendment by c. 776 substituted "with the powers of arrest under subsection A of § 19.2-81 " for "as defined in § 19.2-81 " and inserted "and any campus police officers appointed under Chapter 17 ( § 23-232 et seq.) of Title 23" in subsection H.

The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " at the end of H (ii).

The 2014 amendments. - The 2014 amendments by cc. 779 and 797 are identical, and deleted "under subsection A of § 19.2-81 " following "powers of arrest" in subsection A; and in subsection H inserted "and (iii) any special conservator of the peace who meets the certification requirements for a law-enforcement officer as set forth in § 15.2-1706 " and made stylistic changes.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

Research References. - Virginia Forms (Matthew Bender). No. 5-155. Petition for Protective Order--Family Abuse, et seq.; No. 9-203. Emergency Protective Order--Family Abuse; No. 9-208. Protective Order--Family Abuse (District Court).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 87.

§ 19.2-81.4.

Repealed by Acts 2008, cc. 600 and 771, cl. 2.

Cross references. - For current provisions as to arrest policies and procedures in domestic violence and family abuse cases, see § 9.1-1300 .

§ 19.2-81.5. Cooperation with a law-enforcement officer.

Upon receipt of a request and documentation of an indictment or issuance of a warrant from a law-enforcement agency, any public agency within the Commonwealth may disclose to the requesting law-enforcement agency from agency records, to the extent permitted by federal law, the address of an individual who has been indicted or for whom a warrant for arrest for a crime punishable by incarceration has been issued.

(1998, c. 436.)

§ 19.2-81.6. Authority of law-enforcement officers to arrest illegal aliens.

All law-enforcement officers enumerated in § 19.2-81 shall have the authority to enforce immigration laws of the United States, pursuant to the provisions of this section. Any law-enforcement officer enumerated in § 19.2-81 may, in the course of acting upon reasonable suspicion that an individual has committed or is committing a crime, arrest the individual without a warrant upon receiving confirmation from the Bureau of Immigration and Customs Enforcement of the United States Department of Homeland Security that the individual (i) is an alien illegally present in the United States, and (ii) has previously been convicted of a felony in the United States and deported or left the United States after such conviction. Upon receiving such confirmation, the officer shall take the individual forthwith before a magistrate or other issuing authority and proceed pursuant to § 19.2-82 .

(2004, cc. 360, 412.)

OPINIONS OF THE ATTORNEY GENERAL

Virginia law-enforcement officers have authority to detain and arrest individuals who have committed violations of the laws of the United States and other states, and such authority extends to violations of federal criminal immigration law. It would not be advisable to enforce such violations outside of the scope of an agreement with federal authorities. See opinion of Attorney General to The Honorable Kenneth W. Stolle, Member, Senate of Virginia, and The Honorable David B. Albo, Member, House of Delegates, 07-086 (10/15/07).

Law-enforcement officers may inquire into immigration status. - Virginia law-enforcement officers, including conservation officers, may inquire into the immigration status of persons stopped or arrested; however, persons tasked with enforcing zoning laws lack the authority to investigate criminal violations of the law, including criminal violations of the immigration laws of the United States. See opinion of Attorney General to The Honorable Robert G. Marshall, Member, Virginia House of Delegates, 10-047, 2010 Va. AG LEXIS 37 (7/30/10).

Authority of state and local law-enforcement officers to arrest for immigration violations. - Prior Attorney General opinions concluding that state and local law-enforcement officers may not arrest individuals for civil violations of immigration law absent express federal authorization or direction remain valid. Virginia statutes do not preclude the implementation of agreements between the United States Attorney General and state or local law-enforcement agencies entered pursuant to 8 U.S.C. § 1357(g). See opinion of Attorney General to The Honorable Scott Surovell, Member of the Virginia Senate, and the Honorable Alfonso Lopez, Member of the Virginia House of Delegates, 16-045, 2019 Va. AG LEXIS 9 (4/12/19).

§ 19.2-82. Procedure upon arrest without warrant.

1. A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73 . As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1 , in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1 . If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190 , if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134 , if the issuing officer is a magistrate or other issuing officer having jurisdiction. If such warrant or summons is not issued, the person so arrested shall be released.
2. A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6 , and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6 . If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody. (Code 1950, § 19.1-100.1; 1968, c. 639; 1975, c. 495; 1981, c. 382; 1983, c. 564; 1984, c. 766; 1991, c. 41; 2002, c. 310; 2004, cc. 360, 412; 2009, c. 669.)

The 2002 amendments. - The 2002 amendment by c. 310 deleted "however, this section shall not bar a judge of a district court from proceeding in accord with the provisions of § 16.1-129.1" at the end of the last sentence of the last paragraph.

The 2004 amendments. - The 2004 amendments by cc. 360 and 412 are identical, and inserted the A designation at the beginning of the first paragraph and added subsection B.

The 2009 amendments. - The 2009 amendment by c. 669, in subsection B, deleted "the Bureau" preceding "Immigration and Customs" in the second sentence and added "except where confirmation has been received from Immigration and Customs Enforcement that the arrested person will be taken into federal custody" in the last sentence.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 8, 12; 5B M.J. Criminal Procedure, §§ 13, 17, 19, 21; 19 M.J. Warrants, § 2.

§ 19.2-82.1. Giving false identity to law-enforcement officer; penalty.

Any person who falsely identifies himself to a law-enforcement officer with the intent to deceive the law-enforcement officer as to his real identity after having been lawfully detained and after being requested to identify himself by a law-enforcement officer, is guilty of a Class 1 misdemeanor.

(2006, c. 387.)

Cross references. - As to punishment for Class 1 misdemeanor, see § 18.2-11 .

Law review. - For 2006 survey article, "Criminal Law and Procedure," see 41 U. Rich. L. Rev. 83 (2006).

§ 19.2-83.

Repealed by Acts 1994, c. 273.

§ 19.2-83.1. Report of arrest of school employees and adult students for certain offenses.

1. Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, upon arresting a person who is known or discovered by the arresting official to be a full-time, part-time, permanent, or temporary teacher or other employee in any public school division in this Commonwealth for a felony or a Class 1 misdemeanor or an equivalent offense in another state shall file a report of such arrest with the division superintendent of the employing division as soon as practicable. The contents of the report required pursuant to this section shall be utilized by the local school division solely to implement the provisions of subsection B of § 22.1-296.2 and § 22.1-315.
2. Every state official or agency and every sheriff, police officer, or other local law-enforcement officer or conservator of the peace having the power to arrest for a felony, shall file a report, as soon as practicable, with the division superintendent of the school division in which the student is enrolled upon arresting a person who is known or discovered by the arresting official to be a student age 18 or older in any public school division in this Commonwealth for:
   1. A firearm offense pursuant to Article 4 (§ 18.2-279 et seq.), 5 (§ 18.2-288 et seq.), 6 (§ 18.2-299 et seq.), 6.1 (§ 18.2-307.1 et seq.), or 7 (§ 18.2-308.1 et seq.) of Chapter 7 of Title 18.2;
   2. Homicide, pursuant to Article 1 (§ 18.2-30 et seq.) of Chapter 4 of Title 18.2;
   3. Felonious assault and bodily wounding, pursuant to Article 4 (§ 18.2-51 et seq.) of Chapter 4 of Title 18.2;
   4. Criminal sexual assault, pursuant to Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2;
   5. Manufacture, sale, gift, distribution or possession of Schedule I or II controlled substances, pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
   6. Manufacture, sale or distribution of marijuana pursuant to Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2;
   7. Arson and related crimes, pursuant to Article 1 (§ 18.2-77 et seq.) of Chapter 5 of Title 18.2;
   8. Burglary and related offenses, pursuant to §§ 18.2-89 through 18.2-93 ;
   9. Robbery pursuant to § 18.2-58 ;
   10. Prohibited criminal street gang activity pursuant to § 18.2-46.2 ;
   11. Recruitment of juveniles for criminal street gang pursuant to § 18.2-46.3 ;
   12. An act of violence by a mob pursuant to § 18.2-42.1 ; or
   13. Abduction of any person pursuant to § 18.2-47 or 18.2-48 . (1991, c. 2; 1996, cc. 958, 960; 1997, c. 721; 2001, c. 591; 2004, c. 517; 2011, cc. 384, 410; 2013, c. 746; 2014, cc. 674, 719; 2018, c. 281.)

Editor's note. - Acts 2013, c. 746, cl. 2 provides: "That the provisions of this act are declaratory of existing law."

Acts 2014, cc. 674 and 719, cl. 3 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is at least $66,663 for periods of imprisonment in state adult correctional facilities and cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 2001 amendments. - The 2001 amendment by c. 591 substituted "or a Class 1 misdemeanor" for "a misdemeanor involving (i) sexual assault as established in Article 7 ( § 18.2-61 et seq.) of Chapter 4 of Title 18.2, (ii) obscenity and related offenses as established in Article 5 ( § 18.2-372 et seq.) of Chapter 8 of Title 18.2, (iii) drugs as established in Article 1 ( § 18.2-247 et seq.) of Chapter 7 of Title 18.2, (iv) moral turpitude, or (v) the physical or sexual abuse or neglect of a child."

The 2004 amendments. - The 2004 amendment by c. 517 added the subsection A designation; in subsection A, substituted "as practicable" for "as reasonably practical" at the end of the first sentence, and "subsection B of § 22.1-296.2 and § 22.1-315" for " §§ 22.1-296.2 B and 22.1-315" at the end of the last sentence; and added subsection B.

The 2011 amendments. - The 2011 amendments by cc. 384 and 410, effective March 23, 2011, are identical, and, inserted "or synthetic cannabinoids" in subdivision B 6.

The 2013 amendments. - The 2013 amendment by c. 746 inserted "6.1 ( § 18.2-307.1 et seq.)," and substituted "18.2-308.1" for "18.2-308" in subdivision B 1.

The 2014 amendments. - The 2014 amendments by cc. 674 and 719 are identical, and deleted "or synthetic cannabinoids" following "marijuana" in subdivision B 6.

The 2018 amendments. - The 2018 amendment by c. 281 added subdivisions B 12 and B 13 and made related changes.

Michie's Jurisprudence. - For related discussion, see 16 M.J. Schools, § 14.

§ 19.2-83.2. Jail officer to ascertain citizenship of inmate.

Whenever any person is taken into custody at any jail for a felony offense, the sheriff or other officer in charge of such facility shall inquire as to whether the person (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States. The sheriff or other officer in charge of such facility shall make an immigration alien query to the Law Enforcement Support Center of the U.S. Immigration and Customs Enforcement for any person taken into custody for a felony who (i) was born in a country other than the United States and (ii) is a citizen of a country other than the United States, or for whom the answer to clause (i) or (ii) is unknown. The sheriff or other officer in charge shall communicate the results of any immigration alien query to the Local Inmate Data System of the State Compensation Board. The State Compensation Board shall communicate, on a monthly basis, the results of any immigration alien query that results in a confirmation that the person is illegally present in the United States to the Central Criminal Records Exchange of the Department of State Police in a format approved by the Exchange. The information received by the Central Criminal Records Exchange concerning the person's immigration status shall be recorded in the person's criminal history record.

(2008, cc. 180, 415; 2020, cc. 995, 996.)

Editor's note. - Acts 2008, cc. 180 and 415, cl. 2 provides: "That the State Compensation Board shall maintain in the Local Inmate Data System, and the Department of Corrections shall maintain in its offender management system, a specific data field for the entry of the response received from the Law Enforcement Support Center of the United States Immigration and Customs Enforcement pursuant to the request made in accordance with § 19.2-83.2 or 53.1-218 of the Code of Virginia for information on an inmate's immigration status."

Acts 2008, cc. 180 and 415, cl. 3 provides: "That the Department of Corrections shall confirm the validity of the social security numbers given by inmates and omit from its database those social security numbers determined to be fictitious."

The 2020 amendments. - The 2020 amendments by cc. 995 and 996 are identical, and in the first sentence, inserted "for a felony offense"; in the second sentence, substituted "U.S. Immigration and Customs Enforcement for any person taken into custody for a felony" for "United States Immigration and Customs Enforcement for any person" and "to clause (i) or (ii) is unknown" for "to (i) or (ii) is unknown" and made stylistic changes.

§ 19.2-83.3. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Deadly force" means any force that is likely or intended to cause serious bodily injury or death.

"Deadly weapon" means any object, other than a body part or stationary object, that in the manner of its actual, attempted, or threatened use is likely to cause serious bodily injury or death.

"Excessive force" means any force that is objectively unreasonable given the totality of the circumstances, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

"Kinetic impact munitions" includes impact rounds and baton rounds, such as rubber batons, bean bag rounds, foam baton rounds, and plastic, wax, wood, or rubber-coated projectiles.

"Neck restraint" means the use of any body part or object to attempt to control or disable a person by applying pressure against the neck, including the trachea or carotid artery, with the purpose, intent, or effect of controlling or restricting the person's movement or restricting the person's blood flow or breathing, including chokeholds, carotid restraints, and lateral vascular neck restraints.

(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)

Editor's note. - Acts 2020 Sp. Sess. I, c. 37, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 1289 of the Acts of Assembly of 2020 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020 Sp. Sess. I, c. 55, cl. 2, effective March 1, 2021, provides: "That the Department of Criminal Justice Services shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment."

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.4. Prohibited practices for law-enforcement officers during an arrest or detention.

1. The use of a neck restraint by a law-enforcement officer is prohibited unless the use of a neck restraint is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
2. The willful discharge of a firearm by a law-enforcement officer into or at a moving vehicle is prohibited unless the discharge of a firearm is immediately necessary to protect the law-enforcement officer or another person from death or serious bodily injury.
3. The use of kinetic impact munitions by a law-enforcement officer is prohibited unless the use of kinetic impact munitions is necessary to protect the law-enforcement officer or another person from bodily injury.

   (2020, Sp. Sess. I, cc. 35, 37, 55.)

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.5. Use of deadly force by a law-enforcement officer during an arrest or detention.

1. A law-enforcement officer shall not use deadly force against a person unless:
   1. The law-enforcement officer reasonably believes that deadly force is immediately necessary to protect the law-enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death;
   2. If feasible, the law-enforcement officer has provided a warning to the subject of the deadly force that he will use deadly force;
   3. The law-enforcement officer's actions are reasonable, given the totality of the circumstances; and
   4. All other options have been exhausted or do not reasonably lend themselves to the circumstances.
2. In determining if a law-enforcement officer's use of deadly force is proper, the following factors shall be considered:
   1. The reasonableness of the law-enforcement officer's belief and actions from the perspective of a reasonable law-enforcement officer on the scene at the time of the incident; and
   2. The totality of the circumstances, including (i) the amount of time available to the law-enforcement officer to make a decision; (ii) whether the subject of the use of deadly force (a) possessed or appeared to possess a deadly weapon and (b) refused to comply with the law-enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law-enforcement officer using deadly force; (iii) whether the law-enforcement officer engaged in de-escalation measures prior to the use of deadly force, including taking cover, waiting for backup, trying to calm the subject prior to the use of force, or using non-deadly force prior to the use of deadly force; (iv) whether any conduct by the law-enforcement officer prior to the use of deadly force intentionally increased the risk of a confrontation resulting in deadly force being used; and (v) the seriousness of the suspected crime.

      (2020, Sp. Sess. I, c. 37.)

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.6. Failure of a law-enforcement officer to intervene in use of excessive force.

1. Any law-enforcement officer who, while in the performance of his official duties, witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall intervene, when such intervention is feasible, to end the use of excessive force or attempted use of excessive force, or to prevent the further use of excessive force. A law-enforcement officer shall also render aid, as circumstances reasonably permit, to any person injured as the result of the use of excessive force.
2. Any law-enforcement officer who intervenes pursuant to subsection A or who witnesses another law-enforcement officer engaging or attempting to engage in the use of excessive force against another person shall report such intervention or use of excessive force in accordance with the law-enforcement officer's employing agency's policies and procedures for reporting misconduct committed by a law-enforcement officer. No employing agency shall retaliate, threaten to retaliate, or take or threaten to take any disciplinary action against a law-enforcement officer who intervenes pursuant to subsection A or makes a report pursuant to this subsection.

   (2020, Sp. Sess. I, cc. 25, 37.)

The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, c. 25 was § 19.2-83.4 .

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-83.7. Penalties for violations of this chapter.

In addition to any other penalty authorized by law, any law-enforcement officer who knowingly violates the provisions of this chapter shall be subject to disciplinary action, including dismissal, demotion, suspension, or transfer of the law-enforcement officer or decertification as provided in subsection D of § 15.2-1707 .

(2020, Sp. Sess. I, cc. 25, 35, 37, 55.)

The number of this section was assigned by Acts 2020, Sp. Sess. 1, c. 37, and the Virginia Code Commission; the number in Acts 2020, cc. 25, 35, and 55 was § 19.2-83.5 .

Effective date. - This section is effective March 1, 2021, pursuant to Va. Const. Art. IV, § 13.

§ 19.2-84. Governor to surrender on requisition of President.

The Governor shall whenever required by the executive authority of the United States, pursuant to the Constitution and laws thereof, deliver over to justice any person found within the Commonwealth, who is charged with having committed any crime without the jurisdiction of the United States.

(Code 1950, § 19.1-47; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-85. Definitions.

When appearing in this chapter:

1. The term "Governor" includes any person performing the functions of Governor by authority of the law of this Commonwealth;
2. The term "executive authority" includes the Governor, and any person performing the functions of Governor in a state other than this Commonwealth;
3. The term "State," referring to a state other than this Commonwealth, includes any other state or territory, organized or unorganized, of the United States of America, and the District of Columbia; and
4. The term "judge" means a judge of a court of record having criminal jurisdiction.

   (Code 1950, § 19.1-49; 1960, c. 366; 1975, c. 495.)

Uniform law cross references. - For other signatory state provisions, see:

Alaska: Alaska Stat. §§ 12.70.010 to 12.70.290.

Arizona: A.R.S. §§ 13-3841 to 13-3870.01.

Arkansas: A.C.A. §§ 16-94-201 to 16-94-231.

California: Cal. Pen. Code, § 1548 et seq.

Colorado: C.R.S. §§ 16-19-101 through 16-19-134.

Connecticut: Conn. Gen. Stat. §§ 54-157 to 54-185.

Delaware: 11 Del. Ch. § 2501 et seq.

Florida: Fla. Stat. § 941.01 et seq.

Georgia: O.C.G.A. §§ 17-13-20 to 17-13-49.

Hawaii: H.R.S. §§ 832-1 to 832-27.

Idaho: Idaho Code § 19-4501 et seq.

Illinois: 725 I.L.C.S. 225/1 to 225/32.

Indiana: Burns Ind. Code Ann., IC 35-33-10-3.

Iowa: Iowa Code §§ 820.1 to 820.29.

Kansas: K.S.A. §§ 22-2701 to 22-2730.

Kentucky: K.R.S. §§ 440.150 to 440.420.

Maine: 15 M.R.S. §§ 201 to 229.

Maryland: Md. Criminal Procedure Code Ann. §§ 9-101 through 9-128.

Michigan: M.C.L.S. §§ 780.1 to 780.31.

Minnesota: Minn. Stat. §§ 629.01 to 629.29.

Missouri: §§ 548.011 through 548.300 R.S. Mo.

Montana: Mont. Code Anno. §§ 46-30-101 to 46-30-413.

Nebraska: R.R.S. Neb. §§ 29-729 to 29-758.

Nevada: N.R.S. §§ 179.177 to 179.235.

New Hampshire: R.S.A. §§ 612:1 to 612:30.

New Jersey: N.J. Stat. § 2A-160-1 et seq.

New Mexico: N.M. Stat. Ann. §§ 31-4-1 to 31-4-30.

New York: NY CLS CPL §§ 570.02 to 570.66.

North Carolina: N.C. Gen. Stat. §§ 15A-721 to 15A-751.

Ohio: ORC Ann. 2963.01 et seq.

Oklahoma: 22 Okl. St. §§ 1141.1 to 1141.30.

Oregon: O.R.S. §§ 133.743 to 133.857.

Pennsylvania: 42 Pa. C.S. § 9121 et seq.

Puerto Rico: 34 L.P.R.A. § 1881 et seq.

Rhode Island: R.I. Gen. Laws § 12-9-1 et seq.

South Dakota: S.D. Codified Laws §§ 23-24-1 through 23-24-39.

Tennessee: Tenn. Code Ann. § 40-9-101 et seq.

Texas: Tex. Code Crim. Proc., art. 51.13.

Utah: Utah Code Ann. § 77-30-1 et seq.

Vermont: 13 V.S.A. §§ 4941 to 4969.

Virgin Islands: 5 V.I.C. §§ 3801 through 3829.

Washington: Rev. Code Wash. §§ 10.88.200 to 10.88.930.

West Virginia: W. Va. Code § 5-1-7 et seq.

Wisconsin: Wis. Stat. § 976.03.

Wyoming: Wyo. Stat. §§ 7-3-201 through 7-3-227.

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-86. Fugitives from justice; duty of Governor.

Subject to the provisions of this chapter, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, the Governor shall have arrested and delivered up to the executive authority of any other of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this Commonwealth.

(Code 1950, § 19.1-50; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?", see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-87. Form of demand.

No demand for the extradition of a person charged with, or convicted of, crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under § 19.2-91 , that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from such state, and accompanied: (1) by a copy of an indictment found, (2) by a copy or an information supported by an affidavit filed in the state having jurisdiction of the crime, (3) by a copy of an affidavit made before a magistrate in such state together with a copy of any warrant which was issued thereupon, or (4) by a copy of a judgment of conviction or of a sentence imposed in execution thereof together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.

(Code 1950, § 19.1-51; 1960, c. 366; 1975, c. 495.)

CIRCUIT COURT OPINIONS

Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).

Petition for writ of habeas corpus. - Because it was clear that the Governor of California made the extradition request for an inmate in Virginia, albeit through a duly authorized agent, the circuit court in Virginia had to give full faith and credit to the manner in which the request was communicated to the Governor of Virginia, and the requesting authorities accurately named and identified the fugitive sought in an indictment. The court ordered the suspension of the execution of its order and ordered the inmate to remain in Virginia pending resolution of an appeal. Soriano v. Commonwealth, 98 Va. Cir. 243, 2018 Va. Cir. LEXIS 41 (Fairfax County Mar. 19, 2018).

§ 19.2-88. Governor may investigate case.

When a demand shall be made upon the Governor by the executive authority of another state for the surrender of a person so charged with, or convicted of, crime, the Governor may call upon the Attorney General or any other officer of this Commonwealth to investigate or assist in investigating the demand and to report to him the situation and circumstances of the person so demanded and whether he ought to be surrendered.

(Code 1950, § 19.1-52; 1960, c. 366; 1975, c. 495.)

§ 19.2-89. Extradition of persons imprisoned or awaiting trial in another state.

When it is desired to have returned to this Commonwealth a person charged in this Commonwealth with a crime and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or his term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this Commonwealth as soon as the prosecution in this Commonwealth is terminated.

(Code 1950, § 19.1-53; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-90. Extradition of persons who have left demanding state involuntarily.

The Governor may also surrender on demand of the executive authority of any other state any person in this Commonwealth who is charged in the manner provided in §§ 19.2-109 to 19.2-111 , with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.

(Code 1950, § 19.1-54; 1960, c. 366; 1975, c. 495.)

§ 19.2-91. Extradition of persons not in demanding state at time of commission of crime.

The Governor may also surrender, on demand of the executive authority of any other state, any person in this Commonwealth charged in such other state in the manner provided in § 19.2-87 with committing an act in this Commonwealth, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand. The provisions of this chapter not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime, and has not fled therefrom.

(Code 1950, § 19.1-55; 1960, c. 366; 1975, c. 495.)

CIRCUIT COURT OPINIONS

Request for extradition and affidavit incorrect. - Because the Florida extradition warrant signed by the Governor of Florida and its underlying request for extradition and probable cause affidavit were incorrect on their face, and because the office of the Secretary of the Commonwealth failed to provide a resident 10 days in which to respond to Florida's extradition warrant, the resident was entitled to have the petition for writ of habeas corpus be granted. Cole v. Commonwealth, 84 Va. Cir. 367, 2012 Va. Cir. LEXIS 38 (Fairfax County Mar. 14, 2012).

§ 19.2-92. Issuance of Governor's warrant of arrest; its recitals.

If the Governor decides that a demand for the extradition of a person, charged with, or convicted of, crime in another state should be complied with, he shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to the sheriff or sergeant of any county or city or to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance. Any electronically transmitted facsimile of a Governor's warrant shall be treated as an original document, provided the original is received within four working days of receipt of the facsimile.

(Code 1950, § 19.1-56; 1960, c. 366; 1975, c. 495; 2001, cc. 214, 226; 2011, c. 59.)

The 2001 amendments. - The 2001 amendment by cc. 214 and 226 are identical, and added the last sentence.

The 2011 amendments. - The 2011 amendment by c. 59 inserted "working" in the last sentence.

§ 19.2-93. Manner and place of execution of warrant.

Such warrant shall authorize the officer or other person to whom it is directed to arrest the accused at any time and at any place where he may be found within the Commonwealth and to command the aid of all peace officers or other persons in the execution of the warrant and to deliver the accused, subject to the provisions of this chapter, to the duly authorized agent of the demanding state.

(Code 1950, § 19.1-57; 1960, c. 366; 1975, c. 495.)

§ 19.2-94. Assistance to arresting officer.

Every officer or other person empowered to make the arrest, as provided in the preceding section, shall have the same authority, in arresting the accused, to command assistance therein as the sheriffs and sergeants of the several counties and cities of this Commonwealth have by law in the execution of any criminal process directed to them, with like penalties against those who refuse to render their assistance.

(Code 1950, § 19.1-58; 1960, c. 366; 1975, c. 495.)

§ 19.2-95. Rights of accused persons; application for writ of habeas corpus.

No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a circuit or general district court in the Commonwealth, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof and of the time and place of hearing thereon shall be given to the attorney for the Commonwealth of the county or city in which the arrest is made and in which the accused is in custody, and to the agent of the demanding state.

(Code 1950, § 19.1-59; 1960, c. 366; 1975, c. 495; 2005, c. 839.)

The 2005 amendments. - The 2005 amendment by c. 839, effective October 1, 2005, substituted "the Commonwealth" for "this Commonwealth"; and deleted "or trial justice" preceding "shall fix."

Research References. - Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 33 Writs and Injunctions. § 33.01 Writs. Friend.

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.

§ 19.2-96. Penalty for noncompliance with preceding section.

Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant in willful disobedience to the last preceding section shall be guilty of a Class 1 misdemeanor.

(Code 1950, § 19.1-60; 1960, c. 366; 1975, c. 495.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11 .

§ 19.2-97. Confinement in jail when necessary.

The officer or persons executing the Governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.

(Code 1950, § 19.1-61; 1960, c. 366; 1975, c. 495.)

§ 19.2-98. Same; for prisoners being taken through Commonwealth.

The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this Commonwealth with such prisoner for the purpose of returning immediately such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of such jail shall receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, such officer or agent, however, being chargeable with the expense of keeping, provided, however, that such officer or agent shall deliver to the jailer the warrant or legal order authorizing custody of the prisoner. Such prisoner shall not be entitled to demand a new requisition while in this Commonwealth.

(Code 1950, § 19.1-62; 1960, c. 366; 1975, c. 495.)

§ 19.2-99. Arrest prior to requisition.

Whenever: (1) any person within this Commonwealth shall be charged on the oath of any credible person before any judge, magistrate or other officer authorized to issue criminal warrants in this Commonwealth with the commission of any crime in any other state and, except in cases arising under § 19.2-91 , (a) with having fled from justice, (b) with having been convicted of a crime in that state and of having escaped from confinement, or (c) of having broken the terms of his bail, probation, or parole, or (2) complaint shall have been made before any such judge, magistrate or other officer in this Commonwealth setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under § 19.2-91 , (a) has fled from justice, (b) having been convicted of a crime in that state has escaped from confinement, or (c) broken the terms of his bail, probation or parole, and that the accused is believed to be in this Commonwealth, such judge, magistrate or other officer shall issue a warrant directed to any sheriff or to any peace officer commanding him to apprehend the person named therein, wherever he may be found in this Commonwealth, and to bring him before any judge who may be available in or convenient of access to the place where the arrest may be made, to answer the charge of complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

(Code 1950, § 19.1-63; 1960, c. 366; 1975, c. 495.)

§ 19.2-100. Arrest without warrant.

The arrest of a person may be lawfully made also by any peace officer or private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by imprisonment for a term exceeding one year. But when so arrested the accused shall be taken before a judge, magistrate or other officer authorized to issue criminal warrants in the Commonwealth with all practicable speed and complaint made against him under oath setting forth the ground for the arrest as in § 19.2-99 , and thereafter his answer shall be heard as if he had been arrested on a warrant.

(Code 1950, § 19.1-64; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - For arrest without warrant in cases of flight and pursuit, see § 19.2-77 .

For other statutes authorizing arrests without warrants, see §§ 19.2-81 and 52-20 .

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "imprisonment" in the first sentence; substituted " § 19.2-99 " for "the preceding section" in the last sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arrest, §§ 5, 12.

§ 19.2-101. Confinement to await requisition; bail.

If from the examination before the judge it appears that the person held pursuant to either of the two preceding sections is the person charged with having committed the crime alleged and, except in cases arising under § 19.2-91 , that he has fled from justice, the judge shall, by a warrant reciting the accusation, commit him to jail for such a time, not exceeding thirty days, specified in the warrant as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in the next section, or until he shall be legally discharged.

(Code 1950, § 19.1-65; 1960, c. 366; 1975, c. 495.)

§ 19.2-102. In what cases bail allowed; conditions of bond.

Unless the offense with which the prisoner is charged is shown to be an offense punishable by life imprisonment under the laws of the state in which it was committed, any judge, magistrate or other person authorized by law to admit persons to bail in the Commonwealth may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned upon his appearance before a judge at a time specified in such bond and upon his surrender for arrest upon the warrant of the Governor of the Commonwealth.

(Code 1950, § 19.1-66; 1960, c. 366; 1975, c. 495; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "death or" preceding "life"; and made stylistic changes.

Research References. - Virginia Forms (Matthew Bender). No. 9-1111. Motion to Set Bail for Defendant Under Detainer.

§ 19.2-103. Discharge, recommitment or renewal of bail.

If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, any judge in this Commonwealth may discharge him or may recommit him for a further period not to exceed sixty days, or such judge may again take bail for his appearance and surrender, as provided in the preceding section, but within a period not to exceed sixty days after the date of such new bond.

(Code 1950, § 19.1-67; 1960, c. 366; 1975, c. 495.)

§ 19.2-104. Forfeiture of bail.

If the prisoner is admitted to bail and fails to appear and surrender himself according to the conditions of his bond, any judge of a circuit or general district court by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he be within this Commonwealth. Recovery may be had on such bond in the name of the Commonwealth as in the case of other bonds given by the accused in criminal proceedings within this Commonwealth.

(Code 1950, § 19.1-68; 1960, c. 366; 1975, c. 495.)

§ 19.2-105. Persons under criminal prosecution in this Commonwealth at time of requisition.

If a criminal prosecution has been instituted against such person under the laws of this Commonwealth and is still pending, the Governor, in his discretion, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this Commonwealth.

(Code 1950, § 19.1-69; 1960, c. 366; 1975, c. 495.)

§ 19.2-106. When guilt or innocence of accused inquired into.

The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.

(Code 1950, § 19.1-70; 1960, c. 366; 1975, c. 495.)

§ 19.2-107. Governor may recall warrant or issue alias.

The Governor may recall his warrant of arrest or may issue another warrant whenever he deems it proper.

(Code 1950, § 19.1-71; 1960, c. 366; 1975, c. 495.)

§ 19.2-108. Fugitives from this Commonwealth; duty of Governor.

Whenever the Governor shall demand a person charged with crime or with escaping from confinement or breaking the terms of his bail, probation or parole in this Commonwealth, from the executive authority of any other state, or from the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of this Commonwealth to some agent commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county or city in this Commonwealth in which the offense was committed. Nothing herein shall prevent the sheriff or police chief of a county or city who has been directed to execute such warrant from authorizing a private prisoner transportation company meeting the minimum qualifications set by the Department of Criminal Justice Services to receive and return the person to the Commonwealth.

(Code 1950, § 19.1-72; 1960, c. 366; 1975, c. 495; 2009, c. 848.)

The 2009 amendments. - The 2009 amendment by c. 848 added the last sentence.

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

OPINIONS OF THE ATTORNEY GENERAL

Governor may appoint any agent he chooses to retrieve and return to court a fugitive located in another state. See opinion of Attorney General to The Honorable H. S. Caudill, Sheriff for Tazewell County, 02-096 (12/20/02).

§ 19.2-109. Application for requisition for return of person charged with crime.

When the return to this Commonwealth of a person charged with crime in this Commonwealth is required, the attorney for the Commonwealth shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that, in the opinion of the attorney for the Commonwealth, the ends of justice require the arrest and return of the accused to this Commonwealth for trial and that the proceeding is not instituted to enforce a private claim.

(Code 1950, § 19.1-73; 1960, c. 366; 1975, c. 495.)

§ 19.2-110. Application for requisition for return of escaped convict, etc.

When the return to this Commonwealth is required of a person who has been convicted of a crime in this Commonwealth and has escaped from confinement or broken the terms of his bail, probation or parole, the attorney for the Commonwealth, of the county or city in which the offense was committed, or the warden of the institution or sheriff of the county or city from which the escape was made, shall present to the Governor a written application for a requisition for the return of such person, in which application shall be stated the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation or parole and the state in which he is believed to be, including the location of the person therein at the time application is made.

(Code 1950, § 19.1-74; 1960, c. 366; 1975, c. 495.)

§ 19.2-111. Form of such applications; copies, etc.

The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge of a circuit or general district court or other officer issuing the warrant stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The attorney for the Commonwealth, warden or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information, and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Secretary of the Commonwealth, to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.

(Code 1950, § 19.1-75; 1960, c. 366; 1975, c. 495.)

§ 19.2-112. Costs and expenses of extradition.

1. The expenses incident to the extradition of any person under the four preceding sections may be paid out of the state treasury, on warrants of the Comptroller issued upon vouchers signed by the Governor, or such other person as may be designated by him for such purpose.
2. If the person extradited is found guilty, or if the person was extradited after illegally leaving the Commonwealth while on parole or on probation, the person extradited, and not the Commonwealth, shall be responsible for the costs and expenses of extradition. The state treasury shall continue to reimburse local jurisdictions for the costs and expenses of extradition. The fugitive shall pay the costs and expenses of his extradition into the state treasury.

   (Code 1950, § 19.1-76; 1960, c. 366; 1975, c. 495; 1999, c. 322; 2002, c. 622.)

The 1999 amendment, added the subsection A designation, substituted "may" for "shall" in subsection A, and added subsection B.

The 2002 amendments. - The 2002 amendment by c. 622 inserted "extradited is found guilty, or if the person" in the first sentence of subsection B.

§ 19.2-113. Immunity from service of process in certain civil actions.

A person brought into this Commonwealth by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which he is being or has been returned, until he has been convicted in the criminal proceeding, or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.

(Code 1950, § 19.1-77; 1960, c. 366; 1975, c. 495.)

§ 19.2-114. Written waiver of extradition proceedings.

Any person arrested in this Commonwealth charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation or parole may waive the issuance and service of the warrant provided for in §§ 19.2-92 and 19.2-93 and all other procedures incidental to extradition proceedings by executing or subscribing in the presence of a judge of a circuit or district court within this Commonwealth a writing which states that he consents to return to the demanding state. However, before the waiver is executed or subscribed by the person, it shall be the duty of the judge to inform the person of his rights to the issuance and service of a warrant of extradition and to obtain a writ of habeas corpus as provided for in § 19.2-95 .

If and when such consent has been duly executed, it shall forthwith be forwarded to the office of the Governor and filed therein. The judge shall direct the officer having the person in custody to promptly deliver him to the duly accredited agent of the demanding state, and shall deliver or cause to be delivered to such agent a copy of the consent.

This section shall not be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an executive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this Commonwealth.

(Code 1950, § 19.1-78; 1960, c. 366; 1975, c. 495; 1992, c. 306.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Habeas Corpus, § 16.

§ 19.2-115. Nonwaiver by this Commonwealth.

Nothing in this chapter contained shall be deemed to constitute a waiver by this Commonwealth of its right, power or privilege to try such demanded person for crime committed within this Commonwealth, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this Commonwealth, nor shall any proceedings had under this chapter which result in, or fail to result in, extradition be deemed a waiver by this Commonwealth of any of its rights, privileges or jurisdiction in any way whatsoever.

(Code 1950, § 19.1-79; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-116. No right of asylum; no immunity from other criminal prosecutions while in this Commonwealth.

After a person has been brought back to this Commonwealth by, or after waiver of, extradition proceedings he may be tried in this Commonwealth for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.

(Code 1950, § 19.1-80; 1960, c. 366; 1975, c. 495.)

Law review. - For essay, "In the Aftermath of Soering, Is Interstate Extradition to Virginia Illegal?," see 48 Wash. & Lee L. Rev. 1477 (1991).

§ 19.2-117. Interpretation of article.

The provisions of this article shall be so interpreted and construed as to effectuate its general purposes to make uniform the law of those states which enact statutes similar thereto.

(Code 1950, § 19.1-81; 1960, c. 366; 1975, c. 495.)

§ 19.2-118. Short title.

This article may be cited as the Uniform Criminal Extradition Act.

(Code 1950, § 19.1-82; 1960, c. 366; 1975, c. 495.)

Applied in Arebaugh v. Dalton, 600 F. Supp. 1345 (E.D. Va. 1985).

§ 19.2-119. Definitions.

As used in this chapter:

"Bail" means the pretrial release of a person from custody upon those terms and conditions specified by order of an appropriate judicial officer.

"Bond" means the posting by a person or his surety of a written promise to pay a specific sum, secured or unsecured, ordered by an appropriate judicial officer as a condition of bail to assure performance of the terms and conditions contained in the recognizance.

"Criminal history" means records and data collected by criminal justice agencies or persons consisting of identifiable descriptions and notations of arrests, detentions, indictments, informations or other formal charges, and any deposition arising therefrom.

"Judicial officer" means, unless otherwise indicated, any magistrate serving the jurisdiction, any judge of a district court and the clerk or deputy clerk of any district court or circuit court within their respective cities and counties, any judge of a circuit court, any judge of the Court of Appeals and any justice of the Supreme Court of Virginia.

"Person" means any accused, or any juvenile taken into custody pursuant to § 16.1-246.

"Recognizance" means a signed commitment by a person to appear in court as directed and to adhere to any other terms ordered by an appropriate judicial officer as a condition of bail.

(Code 1950, § 19.1-109.1; 1973, c. 485; 1974, c. 114; 1975, c. 495; 1984, c. 703; 1991, c. 581; 1993, c. 636; 1999, cc. 829, 846; 2008, cc. 551, 691.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the paragraphs defining "Criminal history" and "Person."

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and substituted "magistrate serving the jurisdiction" for "magistrate within his jurisdiction" in the definition for "Judicial officer."

§ 19.2-120. Admission to bail.

Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history.

1. A person who is held in custody pending trial or hearing for an offense, civil or criminal contempt, or otherwise shall be admitted to bail by a judicial officer, unless there is probable cause to believe that:
   1. He will not appear for trial or hearing or at such other time and place as may be directed, or
   2. His liberty will constitute an unreasonable danger to himself, family or household members as defined in § 16.1-228, or the public.
2. In making a determination under subsection A, the judicial officer shall consider all relevant information, including (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the commission of the offense; (iii) the weight of the evidence; (iv) the history of the accused or juvenile, including his family ties or involvement in employment, education, or medical, mental health, or substance abuse treatment; (v) his length of residence in, or other ties to, the community; (vi) his record of convictions; (vii) his appearance at court proceedings or flight to avoid prosecution or convictions for failure to appear at court proceedings; and (viii) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness, juror, victim, or family or household member as defined in § 16.1-228.
3. The judicial officer shall inform the person of his right to appeal from the order denying bail or fixing terms of bond or recognizance consistent with § 19.2-124 .
4. If the judicial officer sets a secured bond and the person engages the services of a licensed bail bondsman, the magistrate executing recognizance for the accused shall provide the bondsman, upon request, with a copy of the person's Virginia criminal history record, if readily available, to be used by the bondsman only to determine appropriate reporting requirements to impose upon the accused upon his release. The bondsman shall pay a $15 fee payable to the state treasury to be credited to the Literary Fund, upon requesting the defendant's Virginia criminal history record issued pursuant to § 19.2-389 . The bondsman shall review the record on the premises and promptly return the record to the magistrate after reviewing it. (1975, c. 495; 1978, c. 755; 1979, c. 649; 1987, c. 390; 1991, c. 581; 1993, c. 636; 1996, c. 973; 1997, cc. 6, 476; 1999, cc. 829, 846; 2000, c. 797; 2002, cc. 588, 623; 2004, cc. 308, 360, 406, 412, 461, 819, 954, 959; 2005, c. 132; 2006, c. 504; 2007, cc. 134, 386, 745, 923; 2008, c. 596; 2010, c. 862; 2011, cc. 445, 450, 480; 2012, c. 467; 2015, c. 413; 2018, c. 71; 2020, c. 999; 2021, Sp. Sess. I, cc. 337, 344, 345, 523, 540.)

Editor's note. - Acts 2002, cc. 588 and 623, cl. 2, provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2006, c. 504, provided in cl. 2: "That the provisions of this act shall not become effective unless an appropriation of funds effectuating the purposes of this act is included in the general appropriation act for the period of July 1, 2006, through June 30, 2008, passed during the 2006 Session of the General Assembly and signed into law by the Governor." Such an appropriation was not made. Had an appropriation been made, Acts 2006, c. 504, would have amended subdivision B 7 by substituting "A violation of § 18.2-67.3 or conspiracy to commit an offense under that section; or any other offense" for "An offense" and "if the person" for "and the person."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 829 and 846, which are identical, substituted "Prior to conducting any hearing on the issue of bail, release or detention, the judicial officer shall, to the extent feasible, obtain the person's criminal history" for "An accused, or juvenile taken into custody pursuant to § 16.1-246" in the present first paragraph, and adding "A person" in the second paragraph; deleted "as defined in § 19.2-119 " following "judicial officer" in the present second paragraph, substituted the sentence beginning "The judicial officer shall presume" and including subdivisions 1 through 7 for "If the judicial officer finds by clear and convincing evidence that (i) within the preceding sixteen years, the accused or juvenile was convicted of an offense listed in §§ 18.2-248 , 18.2-248 .01, 18.2-255 , or § 18.2-255.2 that involves a Schedule I or II controlled substance, was previously convicted as a 'drug kingpin' as defined in § 18.2-248, or was previously convicted of an act of violence as defined in § 19.2-297.1 and finds probable cause to believe that the accused or juvenile who is currently charged with one of these offenses committed the offense charged, or (ii) the accused or juvenile had previously been convicted of an offense listed in subsection B of § 18.2-67.5:2 and finds probable cause to believe that the accused or juvenile who is currently charged with one of these offenses committed the offense charged, then the judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public," inserted subdivisions 1 through 7, and substituted "person" for "accused or juvenile" in the last paragraph.

The 2000 amendments. - The 2000 amendment by c. 797 designated the former second, third and fourth paragraphs as present subsections A, B and D, respectively; and added subsection C.

The 2002 amendments. - The 2002 amendments by cc. 588 and 623 are identical, and deleted "or" from the end of subdivision B 6; added "or" to the end of subdivision B 7; and added subdivision B 8.

The 2004 amendments. - The 2004 amendments by cc. 308 and 819 are identical, and substituted "10" for "ten" in subdivision B 3; and inserted " § 18.2-46.2 , 18.2-46.3 " in subdivision B 8; and inserted "membership in a criminal street gang as defined in § 18.2-46.1 " in subdivision C 2.

The 2004 amendments by cc. 360 and 412 are identical, and substituted "10" for "ten" in subdivision B 3; inserted subsection C; and redesignated former subsections C and D as present subsections D and E.

The 2004 amendment by c. 406 substituted "10" for "ten" in subdivision B 3; added subdivision B 9; and made minor stylistic changes.

The 2004 amendment by c. 461 substituted "10" for "ten" in subdivision B 3 and "mandatory minimum" for "minimum, mandatory" in subdivision B 4.

The 2004 amendment by cc. 954 and 959 are identical, and substituted "10" for "ten" in subdivision B 3; and added subdivision B 9 and made minor stylistic changes.

The 2005 amendments. - The 2005 amendment by c. 132 inserted "or a substantially similar offense under the laws of any state or the United States" in subdivision B 7 and made minor stylistic changes.

The 2007 amendments. - The 2007 amendments by cc. 134 and 386 are identical, and in subsection B, inserted subdivision 8 and redesignated former subdivisions 8 and 9 as subdivisions 9 and 10.

The 2007 amendments by cc. 745 and 923 are identical, and added subdivision B 10 [now B 11] and made related changes.

The 2008 amendments. - The 2008 amendment by c. 596 deleted "or" at the end of subdivision B 10; substituted "; or" for a period at the end of subdivision B 11; and added subdivision B 12.

The 2010 amendments. - The 2010 amendment by c. 862 added subsection F.

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and inserted "or 18.2-60.4 " in subdivision B 11.

The 2011 amendment by c. 450 added subdivision B 13 and made related changes.

The 2012 amendments. - The 2012 amendment by c. 467 added subsection D; and redesignated former subsections D through F as subsections E through G.

The 2015 amendments. - The 2015 amendment by c. 413 added subdivision B 14 and made related changes.

The 2018 amendments. - The 2018 amendment by c. 71 added subdivision B 15 and made related changes.

The 2020 amendments. - The 2020 amendment by c. 999, in subsection D, deleted the first sentence, which read, "A judicial officer who is a magistrate, clerk, or deputy clerk of a district court or circuit court may not admit to bail, that is not set by a judge, any person who is charged with an offense giving rise to a rebuttable presumption against bail as set out in subsection B or C without the concurrence of an attorney for the Commonwealth"; in the second sentence, substituted "judicial officer" for "judge" and deleted "after notice and an opportunity to be heard has been provided to the attorney for the Commonwealth" at the end and in subsection E, substituted "judicial officer" for "court" in the introductory paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 337, effective July 1, 2021, inserted "family or household members as defined in § 16.1-228" in subdivision A 2; deleted former subsections B through D, which created presumptions against bail if a person is charged with certain offenses and rewrote former subsection E as subsection B and redesignated the remaining subdivisions accordingly.

The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "or death" from the end of subdivision B 2.

The 2021 amendments by Sp. Sess. I, cc. 523 and 540, effective July 1, 2021, are identical, and inserted "including a diagnosis of an intellectual or developmental disability as defined in § 37.2-100 " in subdivision E 2.

Law review. - For 2003/2004 survey of criminal law and procedure, see 39 U. Rich. L. Rev. 133 (2004).

§ 19.2-120.1.

Repealed by Acts 2021, Sp. Sess. I, c. 337, cl. 2, effective July 1, 2021.

Editor's note. - Former § 19.2-120.1 , which provided for a presumption of no bail for illegal aliens charged with certain crimes, derived from 2008, cc. 469, 834; 2013, c. 746.

§ 19.2-121. Fixing terms of bail.

1. If the person is admitted to bail, the terms thereof shall be such as, in the judgment of any official granting or reconsidering the same, will be reasonably fixed to assure the appearance of the accused and to assure his good behavior pending trial. The judicial officer shall take into account (i) the nature and circumstances of the offense; (ii) whether a firearm is alleged to have been used in the offense; (iii) the weight of the evidence; (iv) the financial resources of the accused or juvenile and his ability to pay bond; (v) the character of the accused or juvenile including his family ties, employment or involvement in education; (vi) his length of residence in the community; (vii) his record of convictions; (viii) his appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; (ix) whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim; and (x) any other information available which the court considers relevant to the determination of whether the accused or juvenile is unlikely to appear for court proceedings.
2. When a magistrate conducts a bail hearing for a person arrested on a warrant or capias for a jailable offense, the magistrate shall describe the information considered under subsection A on a form provided by the Executive Secretary of the Supreme Court and shall transmit the completed form to the circuit court or district court before which the warrant or capias is returnable.
3. In any case where the accused has appeared and otherwise met the conditions of bail, no bond therefor shall be used to satisfy fines and costs unless agreed to by the person who posted such bond.

   (1975, c. 495; 1978, c. 755; 1980, c. 190; 1991, c. 581; 1992, c. 576; 1993, c. 636; 1999, cc. 829, 846; 2019, c. 176.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846, which are identical, in the first paragraph, substituted "If the person" for "If the accused, or juvenile taken into custody pursuant to § 16.1-246" in the first sentence, and in the second sentence, deleted "and" following "court proceedings," inserted present clause (ix), and redesignated former clause (ix) as present clause (x).

The 2019 amendments. - The 2019 amendment by c. 176 designated the existing provisions as subsections A and C, and added subsection B.

CIRCUIT COURT OPINIONS

Cash or surety bond release. - Circuit court found that release of defendant under supervised release and a personal recognizance bond was appropriate because there was no constitutional right to cash bail and the imposition of a cash or surety bond release term upon defendant, who was determined to be indigent, would have been an unconstitutional application of the Virginia statutory bail bond scheme in derogation of the Due Process Clause of the United States Constitution. Commonwealth v. Hunter,, 2020 Va. Cir. LEXIS 491 (Fairfax County Nov. 6, 2020).

§ 19.2-122.

Repealed by Acts 1986, c. 327.

§ 19.2-123. Release of accused on secured or unsecured bond or promise to appear; conditions of release.

1. Any person arrested for a felony who has previously been convicted of a felony, or who is presently on bond for an unrelated arrest in any jurisdiction, or who is on probation or parole, may be released only upon a secure bond. This provision may be waived with the approval of the judicial officer and with the concurrence of the attorney for the Commonwealth or the attorney for the county, city or town. Subject to the foregoing, when a person is arrested for either a felony or a misdemeanor, any judicial officer may impose any one or any combination of the following conditions of release:
   1. Place the person in the custody and supervision of a designated person, organization or pretrial services agency which, for the purposes of this section, shall not include a court services unit established pursuant to § 16.1-233;
   2. Place restrictions on the travel, association or place of abode of the person during the period of release and restrict contacts with household members for a specified period of time; 2a. Require the execution of an unsecured bond;
   3. Require the execution of a secure bond which at the option of the accused shall be satisfied with sufficient solvent sureties, or the deposit of cash in lieu thereof. Only the actual value of any interest in real estate or personal property owned by the proposed surety shall be considered in determining solvency and solvency shall be found if the value of the proposed surety's equity in the real estate or personal property equals or exceeds the amount of the bond; 3a. Require that the person do any or all of the following: (i) maintain employment or, if unemployed, actively seek employment; (ii) maintain or commence an educational program; (iii) avoid all contact with an alleged victim of the crime and with any potential witness who may testify concerning the offense; (iv) comply with a specified curfew; (v) refrain from possessing a firearm, destructive device, or other dangerous weapon; (vi) refrain from excessive use of alcohol, or use of any illegal drug or any controlled substance not prescribed by a health care provider; and (vii) submit to testing for drugs and alcohol until the final disposition of his case; 3b. Place a prohibition on a person who holds an elected constitutional office and who is accused of a felony arising from the performance of his duties from physically returning to his constitutional office; 3c. Require the accused to accompany the arresting officer to the jurisdiction's fingerprinting facility and submit to having his photograph and fingerprints taken prior to release; or
   4. Impose any other condition deemed reasonably necessary to assure appearance as required, and to assure his good behavior pending trial, including a condition requiring that the person return to custody after specified hours or be placed on home electronic incarceration pursuant to § 53.1-131.2 or, when the person is required to execute a secured bond, be subject to monitoring by a GPS (Global Positioning System) tracking device, or other similar device. The defendant may be ordered by the court to pay the cost of the device. Upon satisfaction of the terms of recognizance, the accused shall be released forthwith. In addition, where the accused is an individual receiving services in a state training center for individuals with intellectual disability, the judicial officer may place the individual in the custody of the director of the training center, if the director agrees to accept custody. The director is hereby authorized to take custody of the individual and to maintain him at the training center prior to a trial or hearing under such circumstances as will reasonably assure the appearance of the accused for the trial or hearing.
2. In any jurisdiction served by a pretrial services agency which offers a drug or alcohol screening or testing program approved for the purposes of this subsection by the chief general district court judge, any such person charged with a crime may be requested by such agency to give voluntarily a urine sample, submit to a drug or alcohol screening, or take a breath test for presence of alcohol. A sample may be analyzed for the presence of phencyclidine (PCP), barbiturates, cocaine, opiates or such other drugs as the agency may deem appropriate prior to any hearing to establish bail. The judicial officer and agency shall inform the accused or juvenile being screened or tested that test results shall be used by a judicial officer only at a bail hearing and only to determine appropriate conditions of release or to reconsider the conditions of bail at a subsequent hearing. All screening or test results, and any pretrial investigation report containing the screening or test results, shall be confidential with access thereto limited to judicial officers, the attorney for the Commonwealth, defense counsel, other pretrial service agencies, any criminal justice agency as defined in § 9.1-101 and, in cases where a juvenile is screened or tested, the parents or legal guardian or custodian of such juvenile. However, in no event shall the judicial officer have access to any screening or test result prior to making a bail release determination or to determining the amount of bond, if any. Following this determination, the judicial officer shall consider the screening or test results and the screening or testing agency's report and accompanying recommendations, if any, in setting appropriate conditions of release. In no event shall a decision regarding a release determination be subject to reversal on the sole basis of such screening or test results. Any accused or juvenile whose urine sample has tested positive for such drugs and who is admitted to bail may, as a condition of release, be ordered to refrain from use of alcohol or illegal drugs and may be required to be tested on a periodic basis until final disposition of his case to ensure his compliance with the order. Sanctions for a violation of any condition of release, which violations shall include subsequent positive drug or alcohol test results or failure to report as ordered for testing, may be imposed in the discretion of the judicial officer and may include imposition of more stringent conditions of release, contempt of court proceedings or revocation of release. Any test given under the provisions of this subsection which yields a positive drug or alcohol test result shall be reconfirmed by a second test if the person tested denies or contests the initial drug or alcohol test positive result. The results of any drug or alcohol test conducted pursuant to this subsection shall not be admissible in any judicial proceeding other than for the imposition of sanctions for a violation of a condition of release.
3. [Repealed.]
4. Nothing in this section shall be construed to prevent an officer taking a juvenile into custody from releasing that juvenile pursuant to § 16.1-247. If any condition of release imposed under the provisions of this section is violated, a judicial officer may issue a capias or order to show cause why the recognizance should not be revoked.
5. Nothing in this section shall be construed to prevent a court from imposing a recognizance or bond designed to secure a spousal or child support obligation pursuant to § 16.1-278.16, Chapter 5 (§ 20-61 et seq.) of Title 20, or § 20-114 in addition to any recognizance or bond imposed pursuant to this chapter. (Code 1950, § 19.1-109.2; 1973, c. 485; 1975, c. 495; 1978, cc. 500, 755; 1979, c. 518; 1981, c. 528; 1984, c. 707; 1989, c. 369; 1991, cc. 483, 512, 581, 585; 1992, c. 576; 1993, c. 636; 1999, cc. 829, 846; 2000, cc. 885, 1020, 1041; 2001, c. 201; 2006, c. 296; 2008, cc. 129, 884; 2011, cc. 799, 837; 2012, cc. 476, 507; 2013, c. 614; 2014, c. 466.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in subsection A, substituted the present introductory paragraph for the former first and second paragraphs, which read:

"If any judicial officer has brought before him any person held in custody and charged with an offense, other than an offense punishable by death, or a juvenile taken into custody pursuant to § 16.1-246, the judicial officer shall consider the release pending trial or hearing of the accused on his recognizance.

"In the case of a juvenile or in any case where the judicial officer determines that such a release will not reasonably assure the appearance of the accused as required, the judicial officer shall then, either in lieu of or in addition to the above methods of release, impose any one or any combination of the following conditions of release which will reasonably assure the appearance of the accused or juvenile for trial or hearing," and substituted "and supervision of a designated person, organization or" for "of a designated person or organization agreeing to supervise him or in the custody and under the supervision of a" in subdivision 1, deleted "or" at the end of subdivision 3, and added subdivision 3a, and substituted "person" for "accused or juvenile" in the first sentence in subsection B.

The 2000 amendments. - The 2000 amendment by c. 885, in subsection A, inserted the first two sentences and added "Subject to the foregoing" at the beginning of the third sentence.

The 2000 amendments by cc. 1020 and 1041 are identical, and in subsection B, inserted "or alcohol" following "drug" throughout the subsection, inserted "screened or" or "screening or" preceding "test," "tested," or "testing" throughout the subsection, added the language following "urine sample" through the end of the first sentence, substituted "A" for "This" at the beginning of the second sentence, inserted "and any pretrial investigation report containing the screening or test results," and inserted "other pretrial service agencies, any criminal justice agency as defined in § 9-169" in the fourth sentence.

The 2001 amendments. - The 2001 amendment by c. 201 inserted "when a person is arrested for either a felony or a misdemeanor" in the introductory paragraph of subsection A.

The 2006 amendments. - The 2006 amendment by c. 296 substituted a semicolon for a period at the end of subdivision A 3.

The 2008 amendments. - The 2008 amendment by c. 129 added subsection E.

The 2008 amendment by c. 884, inserted subdivision A 3b and made minor stylistic changes.

The 2011 amendments. - The 2011 amendments by cc. 799 and 837 are identical, and in the first paragraph in subdivision A 4, added "or, when the person is required to execute a secured bond, be subject to monitoring by a GPS (Global Positioning System) tracking device, or other similar device" in the first sentence, and added the last sentence.

The 2012 amendments. - The 2012 amendments by cc. 476 and 507 are identical, and in the third paragraph in subdivision A 4, substituted "is an individual receiving services in a state training center for individuals with intellectual disability" for "is a resident of a state training center for the mentally retarded," "individual" for "person" and "training center" for "state facility" in the first sentence and substituted "The director" for "Such director" and "the individual" for "such person" in the second sentence.

The 2013 amendments. - The 2013 amendments by c. 614 added subdivision A 3c.

The 2014 amendments. - The 2014 amendment by c. 466 in subdivision A 2 inserted "specified" and substituted "of time" for "not to exceed 72 hours."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973). For survey on legal issues involving children in Virginia for 1989, see 23 U. Rich. L. Rev. 705 (1989).

§ 19.2-124. Appeal from bail, bond, or recognizance order.

1. If a judicial officer denies bail to a person, requires excessive bond, or fixes unreasonable terms of a recognizance under this article, the person may appeal the decision of the judicial officer.

   If the initial bail decision on a charge brought by a warrant or district court capias is made by a magistrate, clerk, or deputy clerk, the person shall first appeal to the district court in which the case is pending.

   If the initial bail decision on a charge brought by direct indictment or presentment or circuit court capias is made by a magistrate, clerk, or deputy clerk, the person shall first appeal to the circuit court in which the case is pending.

   If the appeal of an initial bail decision is taken on any charge originally pending in a district court after that charge has been appealed, certified, or transferred to a circuit court, the person shall first appeal to the circuit court in which the case is pending.

   Any bail decision made by a judge of a court may be appealed successively by the person to the next higher court, up to and including the Supreme Court of Virginia, where permitted by law.

   The bail decision of the higher court on such appeal, unless the higher court orders otherwise, shall be remanded to the court in which the case is pending for enforcement and modification. The court in which the case is pending shall not modify the bail decision of the higher court, except upon a change in the circumstances subsequent to the decision of the higher court.

2. The attorney for the Commonwealth may appeal a bail, bond, or recognizance decision to the same court to which the accused person is required to appeal under subsection A.
3. The court granting or denying such bail may, upon appeal thereof, and for good cause shown, stay execution of such order for so long as reasonably practicable for the party to obtain an expedited hearing before the next higher court.

   No such stay under this subsection may be granted after any person who has been granted bail has been released from custody on such bail.

4. No filing or service fees shall be assessed or collected for any appeal taken pursuant to this section.

   (Code 1950, §§ 19.1-109.3, 19.1-112; 1960, c. 366; 1973, cc. 130, 485; 1975, c. 495; 1978, c. 755; 1984, c. 703; 1991, c. 581; 1999, cc. 829, 846; 2007, cc. 462, 549; 2010, cc. 404, 592; 2013, cc. 408, 474; 2016, c. 621; 2019, c. 616; 2021, Sp. Sess. I, c. 337.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and added the subsection A designator, and substituted "judicial officer denies bail to a person, requires excessive bond, or fixes unreasonable terms of a recognizance under this article, the person" for "magistrate or other judicial officer denies bail to an accused or juvenile taken into custody pursuant to § 16.1-246, requires excessive bond, or fixes unreasonable terms of a recognizance under § 19.2-123 , the accused or juvenile," and added subsection B.

The 2007 amendments. - The 2007 amendments by cc. 462 and 549 are identical, and added subsection C.

The 2010 amendments. - The 2010 amendments by cc. 404 and 592 are identical, and in subsection A, substituted "the decision of the judicial officer" for "therefrom successively to the next higher court or judge thereof, up to and including the Supreme Court of Virginia or any justice thereof where permitted by law" in the introductory paragraph and added the second to last paragraphs; and rewrote subsection B.

The 2013 amendments. - The 2013 amendments by cc. 408 and 474 are identical, and added subsection C and redesignated former subsection C as D.

The 2016 amendments. - The 2016 amendment by c. 621 rewrote subsection C, which formerly read: "The court granting or denying such bail may, upon appeal thereof, and for good cause shown, stay execution of such order for so long as reasonably practicable for the party to obtain an expedited hearing before the next higher court. No such stay may be granted after any person who has been granted bail has been released from custody on such bail."

The 2019 amendments. - The 2019 amendment by c. 616 added the sixth paragraph to subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 337, effective July 1, 2021, in the first paragraph of subsection C, deleted "In a matter not governed by subsection B or C of § 19.2-120 or § 19.2-120.1 " at the beginning, and deleted the second sentence, which read: "When a district court grants bail over the presumption against bail in a matter that is governed by subsection B or C of § 19.2-120 or § 19.2-120.1 , and upon notice by the Commonwealth of its appeal of the court's decision, the court shall stay execution of such order for so long as reasonably practical for the Commonwealth to obtain an expedited hearing before the circuit court, but in no event more than five days, unless the defendant requests a hearing date outside the five-day limit"; and made stylistic changes.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972). For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

§ 19.2-125. Release pending appeal from conviction in court not of record.

A person who has been convicted of an offense in a district court and who has noted an appeal shall be given credit for any bond that he may have posted in the court from which he appeals and shall be treated in accordance with the provisions of this article.

(Code 1950, § 19.1-109.4; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "this article" for " § 19.2-123 and 19.2-124 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

§ 19.2-126.

Repealed by Acts 1999, cc. 829 and 846.

§ 19.2-127. Conditions of release of material witness.

If it appears by affidavit that the testimony of a person is material in any criminal proceeding, and it reasonably appears that it will be impossible to secure his presence by a subpoena, a judge shall inquire into the conditions of his release pursuant to this article.

(Code 1950, § 19.1-109.6; 1973, c. 485; 1975, c. 495; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "this article" for " § 19.2-123 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

Research References. - Virginia Forms (Matthew Bender). No. 9-1616. Motion to Compel Access to Witnesses.

§ 19.2-128. Penalties for failure to appear.

1. Whoever, having been released pursuant to this chapter or § 19.2-319 or on a summons pursuant to § 19.2-73 or § 19.2-74 , willfully fails to appear before any court or judicial officer as required, shall, after notice to all interested parties, incur a forfeiture of any security which may have been given or pledged for his release, unless one of the parties can show good cause for excusing the absence, or unless the court, in its sound discretion, shall determine that neither the interests of justice nor the power of the court to conduct orderly proceedings will be served by such forfeiture.
2. Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 6 felony.
3. Any person (i) charged with a misdemeanor offense or (ii) convicted of a misdemeanor offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 1 misdemeanor. (Code 1950, § 19.1-109.7; 1973, c. 485; 1975, c. 495; 1981, c. 382; 1982, c. 271; 1999, c. 821.)

Cross references. - As to punishment for Class 6 felonies, see § 18.2-10 .

As to punishment for Class 1 misdemeanors, see § 18.2-11 .

The 1999 amendment inserted "or § 19.2-319 " following "this chapter" in subsection A; added the subsection C designator, in subsections B and C, inserted the clause (i) designation, and added "or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 ."

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

For survey of Virginia law on criminal law and procedure for the year 2007-2008, see 43 U. Rich. L. Rev. 149 (2008).

§ 19.2-129. Power of court to punish for contempt.

Nothing in this chapter shall interfere with or prevent the exercise by any court of the Commonwealth of its power to punish for contempt, except that a person shall not be sentenced for contempt and under the provisions of § 19.2-128 for the same absence.

(Code 1950, § 19.1-109.8; 1973, c. 485; 1975, c. 495.)

Law review. - For survey of Virginia law on criminal procedure for the year 1972-1973, see 59 Va. L. Rev. 1478 (1973).

§ 19.2-130. Bail in subsequent proceeding arising out of initial arrest.

1. Any person admitted to bail by a judge or clerk of a district court or by a magistrate shall not be required to be admitted to bail in any subsequent proceeding arising out of the initial arrest unless the court having jurisdiction of such subsequent proceeding deems the initial amount of bond or security taken inadequate. When the court having jurisdiction of the proceeding believes the amount of bond or security inadequate or excessive, it may change the amount of such bond or security, require new and additional sureties, or set other terms of bail as are appropriate to the case, including, but not limited to, drug and alcohol monitoring. The court may, after notice to the parties, initiate a proceeding to alter the terms and conditions of bail on its own motion.
2. Any motion to alter the terms and conditions of bail where the initial bail decision is made by a judge or clerk of a district court or by a magistrate on any charge originally pending in that district court shall be filed in that district court unless (i) a bail decision is on appeal, (ii) such charge has been transferred pursuant to § 16.1-269.1 to a circuit court, or (iii) such charge has been certified by a district court.

   (Code 1950, § 19.1-111.1; 1972, c. 366; 1975, c. 495; 1978, c. 755; 1991, c. 581; 2008, cc. 363, 812; 2019, c. 616.)

The 2008 amendments. - The 2008 amendments by cc. 363 and 812 are identical, and substituted "security inadequate or excessive, it may change the amount of such bond or security, require new and additional sureties, or set other terms of bail as are appropriate to the case, including, but not limited to, drug and alcohol monitoring" for "security inadequate, it may increase the amount of such bond or security or require new and additional sureties" in the second sentence and added the last sentence.

The 2019 amendments. - The 2019 amendment by c. 616 inserted the subsection A designation and added subsection B.

Law review. - For survey of Virginia criminal law for the year 1971-1972, see 58 Va. L. Rev. 1206 (1972).

For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

§ 19.2-130.1. Bail terms set by court on a capias to be honored by magistrate.

A magistrate who is to set the terms of bail of a person arrested and brought before him pursuant to § 19.2-234 shall, unless circumstances exist that require him to set more restrictive terms, set the terms of bail in accordance with the order of the court that issued the capias, if such an order is affixed to or made a part of the capias by the court.

(2010, cc. 312, 375; 2011, c. 112.)

The 2011 amendments. - The 2011 amendment by c. 112 substituted "shall, unless circumstances exist that require him to set more restrictive terms, set the terms of bail" for "shall do so."

§ 19.2-131. Bail for person held in jurisdiction other than that of trial.

In any case in which a person charged with a misdemeanor or felony, or a juvenile taken into custody pursuant to § 16.1-246 is held in some county, city or town other than that in which he is to be tried upon such charge, he may be admitted to bail by any judicial officer of the county, city or town in which he is so held in accordance with the provisions of law concerning the granting of bail in cases in which persons are so admitted to bail, when held in the county, city or town in which they are to be tried.

In such case, such judicial officer before whom he is brought may, without trial or examination, let him to bail, upon taking a recognizance for his appearance before the court having cognizance of the case. The fact of taking such recognizance shall be certified by the court or officer taking it upon the warrant under which such person was arrested or taken into custody and the warrant and recognizance shall be returned forthwith to the clerk of the court before whom the accused or juvenile taken into custody pursuant to § 16.1-246 is to appear. And to such court, the judicial officer who issued such warrant shall recognize or cause to be summoned such witnesses as he may think proper.

(Code 1950, §§ 19.1-118, 19.1-119; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1992, c. 576.)

§ 19.2-132. Motion to increase amount of bond fixed by judicial officer; when bond may be increased.

1. If the amount of any bond fixed by a judicial officer is subsequently deemed insufficient, or the security taken inadequate, or if it appears that bail should have been denied or that the person has violated a term or condition of his release, or has been convicted of or arrested for a felony or misdemeanor, the attorney for the Commonwealth of the county or city in which the person is held for trial may, on reasonable notice to the person and, if such person has been admitted to bail, to any surety on the bond of such person, move the appropriate judicial officer to increase the amount of such bond or to revoke bail. The court may grant such motion and may require new or additional sureties therefor, or both, or revoke bail. Any surety in a bond for the appearance of such person may take from his principal collateral or other security to indemnify such surety against liability. The failure to notify the surety will not prohibit the court from proceeding with the bond hearing.

   The court ordering any increase in the amount of such bond, ordering new or additional sureties, or both, or revoking such bail may, upon appeal, and for good cause shown, stay execution of such order for so long as reasonably practicable for such person to obtain an expedited hearing before the court to which such order has been appealed.

2. Any motion filed pursuant to subsection A where the initial bail decision is made by a judge or clerk of a district court or by a magistrate on any charge originally pending in that district court shall be filed in that district court unless (i) a bail decision is on appeal, (ii) such charge has been transferred pursuant to § 16.1-269.1 to a circuit court, or (iii) such charge has been certified by a district court.

   (Code 1950, § 19.1-120; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1989, c. 519; 1991, c. 581; 1999, cc. 829, 846; 2010, cc. 404, 592; 2013, cc. 408, 474; 2019, c. 616.)

Cross references. - As to constitutional provision against excessive bail, see Va. Const., Art. I, § 9.

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in subsection A, in the first sentence, substituted "person" for "party," inserted "or if it appears that bail should have been denied," substituted "person" for "accused or juvenile taken into custody pursuant to § 16.1-246," substituted "person" for "accused or juvenile," substituted "person" for "accused or juvenile," substituted "such person" for "such accused or juvenile," and added "or to revoke bail," inserted "or revoke bail" in the second sentence, and substituted "such person" for "such party"; in subsection B, substituted "person" for "accused or juvenile" twice, inserted "or revoke bail" following "such bond," and in clause (ii), substituted "person's family ties" for "accused's or juvenile's family ties," and inserted "whether the person is likely to obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate a prospective witness, juror, or victim."

The 2010 amendments. - The 2010 amendments by cc. 404 and 592 are identical, and deleted the subsection A designation; in the first sentence, substituted "If the amount of any bond fixed by a judicial officer" for "Although a person has been admitted to bail, if the amount of any bond," inserted "or that the person has violated a term or condition of his release, or has been convicted of or arrested for a felony or misdemeanor" and "if such person has been admitted to bail" and deleted "court, or the" preceding "appropriate judicial officer," and deleted "in accordance with subsection B" following "court may" in the second sentence; and deleted subsection B.

The 2013 amendments. - The 2013 amendments by cc. 408 and 474 are identical, and added the second paragraph.

The 2019 amendments. - The 2019 amendment by c. 616 inserted the subsection A designation and added subsection B; and inserted "or both" in the second paragraph of subsection A.

Law review. - For article, "Criminal Law and Procedure," see 54 U. Rich. L. Rev. 31 (2019).

§§ 19.2-132.1, 19.2-133.

Repealed by Acts 1991, c. 581.

Cross references. - For current provision relating to when accused admitted to bail may be subject to a motion to increase his bond, see § 19.2-132 .

§ 19.2-134. When bail piece to be delivered to accused; form of bail piece.

In all cases in which recognizances, at the suit of the Commonwealth, may have been, or shall hereafter be entered into, it shall be the duty of the clerk of the court in which, or in the clerk's office of which, any recognizance is filed, to deliver to the accused and his sureties upon request, a bail piece, in substance, as follows: "A. B. of the county or city of ......, is delivered to bail, unto C. D. of the county or city of ......, at the suit of the Commonwealth. Given under my hand, this day of ........, in the year ............."

(Code 1950, § 19.1-123; 1960, c. 366; 1975, c. 495; 1991, c. 581; 1992, c. 576.)

§ 19.2-134.1. Collection and reporting of data related to adults charged with a criminal offense punishable by confinement in jail or a term of imprisonment.

1. The Virginia Criminal Sentencing Commission shall, on an annual basis, collect statewide and locality-level data related to all adults charged with any criminal offense punishable by confinement in jail or a term of imprisonment in the Commonwealth. The Virginia Criminal Sentencing Commission may request data and shall be provided such data upon request from (i) every department, division, board, bureau, commission, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party, or any political subdivision thereof; (ii) any criminal justice agency as defined in § 9.1-101 ; and (iii) the clerk of each circuit court. If the statewide Circuit Court Case Management System is used by the circuit court clerk, the Executive Secretary of the Supreme Court shall provide for the transfer of such data upon request of the Virginia Criminal Sentencing Commission. The Virginia Criminal Sentencing Commission shall use the data only for research, evaluation, or statistical purposes and shall ensure the confidentiality and security of the data.
2. The Virginia Criminal Sentencing Commission shall collect data as necessary to report on the following:
   1. Information about the individual charged, including sex, race, year of birth, and residential zip code;
   2. The type of charging document, including summons, warrant, direct indictment, or any other charging document;
   3. Information related to the offense or offenses with which the individual was charged, including (i) the date on which the individual was charged; (ii) the total number of charges; (iii) the Code section or county, city, or town ordinance under which the charge was issued; (iv) whether the charge was a felony, misdemeanor, or other type of offense; and (v) the classification of each such felony, misdemeanor, or other type of offense;
   4. Whether, at the time the individual was charged, that individual was a named defendant in any pending criminal proceeding in the Commonwealth;
   5. Whether, at the time the individual was charged, that individual was under the supervision of the Department of Corrections, any local community-based probation agency, or any pretrial services agency;
   6. Whether, at the time the individual was charged, that individual's criminal history record included any charges or convictions for failure to appear within the Commonwealth, and if so, the date of such charge or conviction;
   7. Whether, at the time the individual was charged, that individual's criminal history record included any conviction for any criminal offense committed within the Commonwealth, and if so, the offense for which that individual was convicted and the date of such conviction;
   8. Whether, at the time the individual was charged, that individual's criminal history record included any convictions for which the individual was ordered to serve an active term of incarceration;
   9. Information related to the individual's detention status at the time of the charge and any changes to the individual's detention status prior to the final disposition of the charge, including whether that individual was released on a summons, denied bail, or admitted to bail, and if admitted to bail, the date of release from custody;
   10. For those individuals who were detained at the time of the charge, information related to the conditions of bail and the bond initially ordered on the charge, including (i) whether bail was denied, (ii) whether the bond was secured or unsecured, and (iii) all monetary amounts set on the bond;
   11. For those individuals admitted to bail prior to the final disposition of the charge, whenever available, information related to the conditions of bail and the bond at the time that individual was admitted to bail, including (i) whether the bond was secured or unsecured, (ii) all monetary amounts set on the bond, (iii) whether that individual was ordered to be supervised by a pretrial services agency, and (iv) whether that individual utilized the services of a bail bondsman;
   12. Whether the individual was charged with failure to appear in the Commonwealth prior to the final disposition of the charge, and if so, the date on which the failure to appear was alleged to have occurred and whether the individual was convicted of the charge of failure to appear;
   13. Whether the individual was charged with any other criminal offense punishable by confinement in jail or a term of imprisonment in the Commonwealth prior to the final disposition of the charge, and if so, the offense for which the individual was charged, the date of the offense, the date of arrest, and whether the individual was convicted of the offense;
   14. Information related to the final disposition of the charge, including (i) the date of final disposition; (ii) whether the charge resulted in a conviction, dismissal, entry of a nolle prosequi, finding of not guilty, or other disposition; (iii) whether the individual was sentenced to a term of incarceration for such charge, and if so, the length of such term of incarceration and the length of time that the individual was incarcerated for such charge; (iv) whether the individual was placed under the supervision of the Department of Corrections; and (v) when available, whether the individual was placed under the supervision of any local community-based probation agency for such charge;
   15. Whether the individual was represented by a public defender or court-appointed attorney on the charge at the time of the final disposition of the case; and
   16. Any other data deemed relevant and reliable by the Virginia Criminal Sentencing Commission.
3. The Virginia Criminal Sentencing Commission shall submit an annual report on the statewide and locality-level data collected pursuant to this section on or before December 1 to the General Assembly, the Governor, and the Office of the Executive Secretary of the Supreme Court of Virginia. Such report may include recommendations related to the collection of data.
4. The Virginia Criminal Sentencing Commission shall annually make the statewide and locality-level data collected pursuant to this section publicly available on a website established and maintained by the Virginia Criminal Sentencing Commission on or before December 1. The data shall be made available as (i) an electronic dataset, excluding any personal and case identifying information, that may be downloaded by members of the public and (ii) an electronic interactive data dashboard tool that displays aggregated data based on characteristics or indicators selected by the user. The Virginia Criminal Sentencing Commission shall not be required to provide electronic data in a format not regularly used by the agency. Data containing any personal or case identifying information shall not be subject to the Virginia Freedom of Information Act (§ 2.2-3700 et seq.) and shall not be made publicly available.
5. Nothing in this section shall require any (i) department, division, board, bureau, commission, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party, or any political subdivision thereof; (ii) criminal justice agency as defined in § 9.1-101 ; or (iii) clerk of circuit court to provide data to the Virginia Criminal Sentencing Commission if the requested data is not regularly maintained by such entity or if such data is prohibited from such disclosure under any other law or under the Virginia Rules of Professional Conduct. (2021, Sp. Sess. I, cc. 111, 112.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 111 and 112, cl. 2 provides: "That the Virginia Criminal Sentencing Commission shall not be required to submit an annual report or make statewide or locality-level data publicly available as required by subsections C and D of § 19.2-134.1 , as created by this act, prior to December 1, 2022."

Acts 2021, Sp. Sess. I, cc. 111 and 112, cl. 3 provides: "That the Virginia State Crime Commission shall provide the Virginia Criminal Sentencing Commission with the final dataset of all adults charged with a criminal offense punishable by confinement in jail or a term of imprisonment in October 2017 and that the Virginia Criminal Sentencing Commission shall make such statewide and locality-level data publicly available as an electronic dataset, excluding any personal and case identifying information, by October 1, 2021, and on an electronic interactive data dashboard tool that displays aggregated data based on characteristics or indicators selected by the user by December 1, 2022. The Virginia Criminal Sentencing Commission shall not be required to provide electronic data in a format not regularly used by the agency. Data from this dataset containing any personal or case identifying information shall not be subject to the Virginia Freedom of Information Act ( § 2.2-3700 et seq. of the Code of Virginia) and shall not be made publicly available."

Effective date. - This section is effective July 1, 2021.

§ 19.2-135. Commitment for trial; recognizance; notice to attorney for Commonwealth; remand on violation of condition.

When a judicial officer considers that there is sufficient cause for charging the accused or juvenile taken into custody pursuant to § 16.1-246 with a felony, unless it be a case wherein it is otherwise specially provided, the commitment shall be for trial or hearing. Any recognizance taken of the accused or juvenile shall be upon the following conditions: (1) that he appear to answer for the offense with which he is charged before the court or judge before whom the case will be tried at such time as may be stated in the recognizance and at any time or times to which the proceedings may be continued and before any court or judge thereafter in which proceedings on the charge are held; (2) that he shall not depart from the Commonwealth unless the judicial officer taking recognizance or a court in a subsequent proceeding specifically waives such requirement; and (3) that he shall keep the peace and be of good behavior until the case is finally disposed of. Every such recognizance shall also include a waiver such as is required by § 49-12 in relation to the bonds therein mentioned and though such waiver be not expressed in the recognizance it shall be deemed to be included therein in like manner and with the same effect as if it was so expressed. The judge shall return to the clerk of the court wherein the accused or juvenile is to be tried, or the case be heard as soon as may be, a certificate of the nature of the offense, showing whether the accused or juvenile was committed to jail or recognized for his appearance; and the clerk, as soon as may be, shall inform the attorney for the Commonwealth of such certificate.

The court may, in its discretion, in the event of a violation of any condition of a recognizance taken pursuant to this section, remand the principal to jail until the case is finally disposed of, and if the principal is remanded to jail, the surety is discharged from liability.

When a recognizance is taken of a witness in a case against an accused or juvenile, the condition thereof shall be that he appear to give evidence in such case and that he shall not depart from the Commonwealth without the leave of such court or judge.

(Code 1950, §§ 19.1-125, 19.1-128, 19.1-133; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1977, c. 287; 1978, c. 755; 1979, c. 735; 1988, c. 688; 1992, c. 576.)

§ 19.2-136. How bonds in recognizances payable; penalty.

Bonds in recognizances in criminal or juvenile cases shall be payable to the county or city in which the case is prosecuted. The treasurer or director of finance of such locality may engage in collection activity regarding the judgment of default rendered pursuant to § 19.2-143 . Any responses to the judgment of default rendered pursuant to § 19.2-143 shall be filed with the court, with notice given to such locality. Every bond under this title shall be in such sum as the court or officer requiring it may direct.

(Code 1950, § 19.1-127; 1960, c. 366; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1991, c. 581; 2011, c. 802; 2012, c. 408.)

Cross references. - As to increase in amount of bail, see § 19.2-132 .

As to recognizance containing waiver, see § 19.2-135 .

As to recognizance for mentally incapacitated persons, see § 19.2-141 .

As to effect of defects in form of recognizance, see § 19.2-146 .

The 2011 amendments. - The 2011 amendment by c. 802 rewrote the first two sentences, which read: "Bonds in recognizances in criminal or juvenile cases, where the violation is committed against the Commonwealth or where the Commonwealth is a party, shall be payable to the Commonwealth of Virginia. Bonds in recognizances in criminal cases where the violation is a violation of a county, city or town ordinance, shall be payable to such county, city or town"; and added the third sentence.

The 2012 amendments. - The 2012 amendment by c. 408 substituted "to the county or city in which the case is prosecuted" for "to the county, city or town wherein the recognizance was taken" at the end of the first sentence, substituted "locality" for "county, city or town" in the second sentence, and substituted "notice given to such locality" for "notice given to the county, city or town wherein the recognizance was taken" at the end of the third sentence.

Law review. - For note, "Grand Jury Reform: A Proposal for Change in Virginia," see 23 U. Rich. L. Rev. 279 (1989).

§ 19.2-137. Order of court on recognizance.

When such recognizance is taken by a court of a person to answer a charge or of a witness to give evidence it shall be sufficient for the order of the court taking the recognizance to state that the party or parties recognized were duly recognized upon a bond in such sum as the court may have directed with such surety as the court may have accepted for his or their appearance before such court at such time as may have been prescribed by the court to answer for the offense with which such person is charged or to give evidence, as the case may be.

(Code 1950, § 19.1-129; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 3.

§§ 19.2-138 through 19.2-140.

Repealed by Acts 1987, c. 670.

Cross references. - As to cash bonds, see § 19.2-143 .

§ 19.2-141. How recognizance taken for incapacitated or insane person or one under disability.

A recognizance which would be taken of a person but for his being a minor, insane or otherwise mentally incapacitated, may be taken of another person and without further surety, if such other person is deemed sufficient, for the performance by such minor, insane or otherwise incapacitated person, of the conditions of the recognizance.

(Code 1950, § 19.1-134; 1960, c. 366; 1975, c. 495; 1997, c. 801.)

Editor's note. - Acts 1997, c. 801, cl. 2, provides: "That the provisions of this act shall become effective on January 1, 1998. The powers granted and duties imposed pursuant to this act shall apply prospectively to guardians and conservators appointed by court order entered on or after that date, or modified on or after that date if the court so directs, without regard to when the petition was filed. The procedures specified in this act governing proceedings for appointment of a guardian or conservator or termination or other modification of a guardianship shall apply on and after that date without regard to when the petition therefor was filed or the guardianship or conservatorship created."

§ 19.2-142. Where recognizance taken out of court to be sent.

A person taking a recognizance out of court shall forthwith transmit it to the clerk of the court for appearance before which it is taken; or, if it be not for appearance before a court, to the clerk of the circuit court of the county or city in which it is taken; and it shall remain filed in the clerk's office.

(Code 1950, § 19.1-136; 1960, c. 366; 1975, c. 495.)

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 18.

§ 19.2-143. Where default recorded; process on recognizance; forfeiture on recognizance; when copy may be used; cash bond.

When a person, under recognizance in a case, either as party or witness, fails to perform the condition of appearance thereof, if it is to appear before a court of record, or a district court, the court shall record the default therein, and shall issue a notice of default within five days of the breach of the condition of appearance.

If the defendant or juvenile is brought before the court within 150 days of the findings of default, the court shall dismiss the default upon the filing of a motion by the party in default. After 150 days of the finding of default, his default shall be recorded therein, and if it is to appear before a district court, his default shall be entered by the judge of such court, on the case papers unless the defendant or juvenile has been delivered or appeared before the court. The process on any such forfeited recognizance shall be issued from the court before which the appearance was to be, and wherein such forfeiture was recorded or entered. Any such process issued by a judge shall be made returnable before, and tried by, such judge, who shall promptly transmit to the clerk of the circuit court of his county or city wherein deeds are recorded an abstract of such judgment as he may render thereon, which shall be forthwith docketed by the clerk of such court. If the forfeited recognizance is not paid by 4:00 p.m. on the last day of the 150-day period from the finding of default, the license of any bail bondsman on the bond shall be suspended in accordance with § 9.1-185.8 . At such time, the court shall issue a notice to pay within 10 business days to any employer of such bail bondsman if a property bondsman. If the forfeiture is not paid within 10 business days of the notice to pay, licenses of the employer of the bail bondsman and agents thereof shall be suspended in accordance with § 9.1-185.8 .

If the defendant or juvenile appears before or is delivered to the court within 24 months of the findings of default, the court shall remit any bond previously ordered forfeited by the courts, less such costs as the court may direct.

If it is brought to the attention of the court that the defendant or juvenile is incarcerated in another state or country within 48 months of the finding of default, thereby preventing his delivery or appearance within that period, the court shall remit any bond previously ordered forfeited. If the defendant or juvenile left the Commonwealth with the permission of the court, the bond shall be remitted without deduction of costs; otherwise, the cost of returning him to the Commonwealth shall be deducted from the bond.

Evidence that the defendant or juvenile is incarcerated or subject to court process in another jurisdiction on the day his appearance is required or a medical certificate from a duly licensed physician that the defendant was physically unable to so appear shall be considered evidence of good cause why the recognizance should not be forfeited.

If such recognizance so forfeited is not for such appearance, process thereon shall be issued from the court in which it was taken, or the court to which it was made returnable, and in a proceeding in one court on a recognizance entered in another a copy thereof shall be evidence in like manner as the original would be if it had been entered in the court wherein the proceeding is being had thereon.

However, when any defendant or juvenile who posted a cash bond and failed to appear is tried in his absence and is convicted, the court or judge trying the case shall first apply the cash bond, or so much thereof as may be necessary, to the payment of any fines or costs, or both, adjudged against the defendant or juvenile or imposed by law. Any remaining funds shall be forfeited without further notice. However, if a rehearing is granted, the court may remit part or all of such cash bond not applied ultimately to fines or costs, and order a refund of the same by the State Treasurer, or by the treasurer or director of finance of the locality, if the bond was collected by a locality pursuant to § 19.2-136 , but only if good cause is shown.

If the defendant or juvenile posted a cash bond and failed to appear, but is not tried in his absence, the bond shall be forfeited promptly without further notice. However, if the defendant or juvenile appears in court within 60 days after the bond is forfeited, the judge may remit part or all of any bond previously forfeited and order a refund of the same by the State Treasurer, or by the treasurer or director of finance of the locality, if the bond was collected by a locality pursuant to § 19.2-136 .

(Code 1950, § 19.1-137; 1960, c. 366; 1962, c. 499; 1970, c. 371; 1973, c. 409; 1975, c. 495; 1978, c. 755; 1979, c. 735; 1987, c. 670; 1988, c. 443; 1990, c. 624; 2000, c. 885; 2003, c. 840; 2005, c. 585; 2006, cc. 296, 316; 2011, c. 802; 2012, c. 408; 2019, c. 200.)

Cross references. - As to when penalty of recognizance remitted, see § 19.2-145 .

As to action on recognizance not being defeated by defect in form of recognizance, see § 19.2-146 .

As to limitation of action on recognizance, see § 8.01-246 .

The 2000 amendments. - The 2000 amendment by c. 885 added the second sentence in the first paragraph.

The 2003 amendments. - The 2003 amendment by c. 840 substituted "45" for "forty-five" in the second sentence of the first paragraph; substituted "60" for "sixty" in the first and second sentences of the second paragraph and in the second sentence of the last paragraph; substituted "on the case papers unless" for "on the page of his docket whereon the case is docketed unless" in the second sentence of the second paragraph; and substituted "12" for "twelve" in the third paragraph and in the first sentence of the fourth paragraph.

The 2005 amendments. - The 2005 amendment by c. 585, substituted "48 months" for "12 months" in the fourth paragraph.

The 2006 amendments. - The 2006 amendment by c. 296 substituted "150 days" for "60 days" in two places in the second paragraph; and substituted "24 months" for "12 months" in the third paragraph.

The 2006 amendment by c. 316, in the second paragraph, deleted the comma following "unless" in the first sentence and "when the penalty of the recognizance so forfeited is in excess of the maximum jurisdictional amount specified in § 16.1-77 (1) shall be made returnable to the circuit court of his county or city, and when not in excess of such amount it" following "by a judge" in the last sentence.

The 2011 amendments. - The 2011 amendment by c. 802, in the last two paragraphs, inserted "or by the treasurer or director of finance of the county, city or town, if the bond was collected by a county, city or town pursuant to § 19.2-136 ."

The 2012 amendments. - The 2012 amendment by c. 408 substituted "locality" for "county, city or town" in the last two paragraphs.

The 2019 amendments. - The 2019 amendment by c. 200 in the first paragraph substituted "the court shall record the default therein, and shall issue a notice of default within five" for "a hearing shall be held upon reasonable notice to all parties affording them opportunity to show cause why the recognizance or any part thereof should not be forfeited. The show cause notice shall be issued within 45"; in the second paragraph, deleted "the court finds the recognizance or any part thereof should be forfeited, the default shall be recorded therein, unless" following "If" and inserted "the court shall dismiss the default upon the filing of a motion by the party in default" in the first sentence and added the last three sentences.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 3, 27-31 .

§ 19.2-144. Forfeiture of recognizance while in military or naval service.

If in any motion, action, suit or other proceeding made or taken in any court of this Commonwealth on a forfeited bail bond or forfeited recognizance, or to enforce the payment of the bond in any manner or any judgment thereon, or to forfeit any bail bond or recognizance, it appears that the person for whose alleged default such bail bond or recognizance was forfeited or judgment rendered, or such motion is made or proceeding taken, was prevented from complying with the condition of such bail bond or recognizance by reason of his having enlisted or been drafted in the army or navy of the United States, then judgment or decree on such motion, action, suit or other proceeding shall be given for the defendant.

(Code 1950, § 19.1-139; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

§ 19.2-145. How penalty remitted.

When in an action or on a motion to extend the period for enforcement of a judgment on a recognizance the penalty is adjudged to be forfeited the court may on an application of a defendant or juvenile remit the penalty or any part of it and render judgment on such terms and conditions as it deems reasonable.

(Code 1950, § 19.1-140; 1960, c. 366; 1975, c. 495; 1978, c. 755; 1982, c. 153.)

Cross references. - As to discharge of recognizance in misdemeanor cases where injured party acknowledges satisfaction, etc., see §§ 19.2-151 and 19.2-152 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, § 20.

§ 19.2-146. Defects in form of recognizance not to defeat action or judgment.

No action or judgment on a recognizance shall be defeated or arrested by reason of any defect in the form of the recognizance, if it appear to have been taken by a court or officer authorized to take it and be substantially sufficient.

(Code 1950, § 19.1-141; 1960, c. 366; 1975, c. 495.)

Cross references. - As to form and sufficiency of recognizance, etc., see § 19.2-135 .

§ 19.2-147. Docketing judgment on forfeited recognizance or bond.

Whenever a judgment is entered in any court of record in favor of the Commonwealth of Virginia upon a forfeited recognizance or bond, the clerk of the court in which the judgment is rendered shall certify an abstract of the same to the clerk of the circuit court of the county or city wherein the judgment debtor resides or of any city or county in which he may own real property, who shall thereupon enter the abstract of judgment upon his judgment docket.

(Code 1950, § 19.1-142; 1960, c. 366; 1975, c. 495; 1994, c. 432.)

§ 19.2-148. Surety discharged on payment of amount, etc., into court.

A surety on a bond in a recognizance may, after default, pay into the court from which the process has issued, or may issue thereon, the amount for which he is bound, with such costs as the court may direct, and be thereupon discharged.

(Code 1950, § 19.1-143; 1960, c. 366; 1975, c. 495; 1991, c. 581.)

Cross references. - As to procedure for discharge of surety by surrender of principal, see §§ 19.2-149 and 19.2-150 .

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25.

§ 19.2-149. How surety on a bond in recognizance may surrender principal and be discharged from liability; deposit for surrender of principal.

1. A bail bondsman or his licensed bail enforcement agent on a bond in a recognizance may at any time arrest his principal and surrender him to the court before which the recognizance was taken or before which such principal's appearance is required, or to the sheriff, sergeant or jailer of the county or city wherein the court before which such principal's appearance is required is located; in addition to the above authority, upon the application of the surety, the court, or the clerk thereof, before which the recognizance was taken, or before which such principal's appearance is required, or any magistrate shall issue a capias for the arrest of such principal, and such capias may be executed by such bail bondsman or his licensed bail enforcement agent, or by any sheriff, sergeant or police officer, and the person executing such capias shall deliver such principal and such capias to the sheriff or jailer of the county or the sheriff, sergeant or jailer of the city in which the appearance of such principal is required, and thereupon the surety or the property bail bondsman shall be discharged from liability for any act of the principal subsequent thereto. Upon application of the surety for a capias, the surety shall state the basis for which the capias is being requested. Such sheriff, sergeant or jailer shall thereafter deliver such capias to the clerk of such court, with his endorsement thereon acknowledging delivery of such principal to his custody.

   If a magistrate issues a capias pursuant to this section, the magistrate shall transmit a copy of the capias to the court before which such principal's appearance is required by the close of business on the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed.

2. If a bail bondsman on a bond in a recognizance surrenders his principal for any reason other than the principal's failure to appear in any court, the bondsman shall deposit with the clerk or magistrate the greater of 10 percent of the amount of the bond or $50, which shall be made at such time the bondsman makes application for a capias. The bondsman shall petition the court within 15 days from the surrender of the principal to show cause, if any can be shown, why the bondsman is entitled to the amount deposited. If the court finds that there was sufficient cause to surrender the principal, the court shall return the deposited funds to the bondsman. If the court finds that the surrender of the principal by the bondsman was unreasonable, the deposited funds shall be returned to the payer. Remission of funds shall not be issued by the court until the sixteenth day after the finding. If the bondsman does not petition the court for the return of the deposited funds within 15 days from the surrender of the principal, the deposited funds shall be paid into the state treasury to be credited to the Literary Fund. Nothing in this subsection shall apply to a private citizen who posted cash or real estate to secure the release of a defendant.

   (Code 1950, § 19.1-144; 1960, c. 366; 1975, c. 495; 1991, c. 581; 2004, c. 460; 2015, c. 622; 2019, cc. 176, 205; 2020, cc. 20, 531.)

Cross references. - As to right of surety to take indemnity from bail, see § 19.2-132 .

As to how penalty remitted, see § 19.2-145 .

As to discharge of surety upon payment, see § 19.2-148 .

Editor's note. - Acts 2004, c. 460, cl. 5 provides: "That the provisions of this act, except for § 16.1-77, shall become effective on July 1, 2005."

Acts 2004, c. 460, cl. 6 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2004 amendments. - The 2004 amendment by c. 460, effective July 1, 2005, in the first sentence, substituted "bail bondsman or his licensed bail enforcement agent" for "surety" and "bail bondsman or his licensed bail enforcement" for "surety, or his authorized," inserted "or the property bail bondsman" near the end, and made a minor stylistic change.

The 2015 amendments. - The 2015 amendment by c. 622 inserted "or any magistrate" following "appearance is required" in the first sentence and added the third sentence.

The 2019 amendments. - The 2019 amendment by c. 176 inserted the second sentence in the first paragraph.

The 2019 amendment by c. 205 designated the existing provisions as subsection A and added subsection B.

The 2020 amendments. - The 2020 amendment by c. 20, in subdivision B, substituted "principal's failure to appear in any court" for "a summons to show cause issued by the court for which the principal is to appear" in the first sentence; substituted "payer" for "principal" at the end of the fourth sentence; and added the sixth sentence.

The 2020 amendment by c. 531 added an identical sixth sentence as was added by c. 20.

Law review. - For note on liability of bail bondsmen under 42 U.S.C. § 1983, see 42 Wash. & Lee L. Rev. 215 (1985).

Research References. - Virginia Forms (Matthew Bender). No. 9-522. Surety's Capias and Bailpiece Release--Circuit Court.

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25.

§ 19.2-150. Proceeding when surety surrenders principal.

If the surrender is to the court, the court shall make such order as it deems proper; if the surrender is to a sheriff or jailer, the officer to whom the accused has been surrendered shall give the surety a certificate of the fact. After such surrender the person shall be treated in accordance with the provisions of Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title unless the court or judge thereof has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community.

(Code 1950, § 19.1-145; 1960, c. 366; 1973, c. 485; 1975, c. 495; 1978, c. 755; 1999, cc. 829, 846.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and in the first sentence, substituted "If the surrender is to the court, the court shall make" for "If the surrender be to the court it shall make," substituted "surrender is to a sheriff" for "surrender be to a sheriff, sergeant," in the second sentence, substituted "person" for "accused or juvenile," substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " § 19.2-123 ," and substituted "person" for "accused or juvenile."

Michie's Jurisprudence. - For related discussion, see 2C M.J. Bail and Recognizance, §§ 19, 25; 5B M.J. Criminal Procedure, § 64.

§ 19.2-151. Satisfaction and discharge of assault and similar charges.

When a person is in jail or under a recognizance to answer a charge of assault and battery or other misdemeanor, or has been indicted for an assault and battery or other misdemeanor for which there is a remedy by civil action, unless the offense was committed (i) by or upon any law-enforcement officer, (ii) riotously in violation of §§ 18.2-404 to 18.2-407 , (iii) against a family or household member in violation of § 18.2-57.2 , or (iv) with intent to commit a felony, if the person injured appears before the court which made the commitment or took the recognizance, or before the court in which the indictment is pending, and acknowledges in writing that he has received satisfaction for the injury, the court may, in its discretion, by an order, supersede the commitment, discharge the recognizance, or dismiss the prosecution, upon payment by the defendant of costs accrued to the Commonwealth or any of its officers.

(Code 1950, § 19.1-18; 1960, c. 366; 1968, c. 639; 1975, c. 495; 1997, c. 532; 1999, c. 963.)

The 1999 amendment deleted "and the person charged has before been convicted of a violation of § 18.2-57.2 or had a charge of such a violation dismissed pursuant to this section or by a nolle prosequi" following " § 18.2-57.2 " in clause (iii).

§ 19.2-152. Order discharging recognizance or superseding commitment; judgment for costs.

Every order discharging a recognizance shall be filed with the clerk before the session of the court at which the party was to appear. Where a person is held under a commitment, any order superseding a commitment shall be delivered to the jailer, who shall forthwith discharge the witnesses, if any, and the accused or juvenile, and judgment against the accused or juvenile shall be entered in the court for the costs of the prosecution.

(Code 1950, § 19.1-19; 1960, c. 366; 1975, c. 495; 1978, c. 755.)

§§ 19.2-152.1 through 19.2-152.1:7.

Repealed by Acts 2004, c. 460, effective July 1, 2005.

§ 19.2-152.2. Purpose; establishment of pretrial services and services agencies.

It is the purpose of this article to provide more effective protection of society by establishing pretrial services agencies that will assist judicial officers in discharging their duties pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9. Such agencies are intended to provide better information and services for use by judicial officers in determining the risk to public safety and the assurance of appearance of persons age 18 or over or persons under the age of 18 who have been transferred for trial as adults held in custody and charged with an offense, other than an offense punishable as a Class 1 felony, who are pending trial or hearing. Any city, county or combination thereof may establish a pretrial services agency and any city, county or combination thereof required to submit a community-based corrections plan pursuant to § 53.1-82.1 shall establish a pretrial services agency.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2004, c. 378; 2007, c. 133; 2021, Sp. Sess. I, cc. 344, 345.)

Cross references. - As to dissemination of juvenile record information, see § 19.2-389.1 .

As to limitations on the release of criminal incident information, see § 2.2-3706.1 .

As to the confidentiality of court records, see § 16.1-305.

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 5 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 " in the first sentence.

The 2004 amendments. - The 2004 amendment by c. 378 inserted "age 18 or over or persons under the age of 18 who have been transferred for trial as adults" in the second sentence and made a minor stylistic change.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agencies" for "programs" in the first sentence, substituted "agencies" for "programs" in the second sentence and in the last sentence, substituted "pretrial services agency" for "pretrial services program" in two places.

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and deleted "of this title" from the end of the first sentence; and substituted "as a Class 1 felony" for "by death" in the second sentence.

§ 19.2-152.3. Department of Criminal Justice Services to prescribe standards; biennial plan.

The Department of Criminal Justice Services shall prescribe standards for the development, implementation, operation and evaluation of services authorized by this article. The Department of Criminal Justice Services shall develop risk assessment and other instruments to be used by pretrial services agencies in assisting judicial officers in discharging their duties pursuant to Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title. Any city, county or combination thereof which establishes pretrial services pursuant to this article shall submit a biennial plan to the Department of Criminal Justice Services for review and approval.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2007, c. 133.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 " in the second sentence.

The 2007 amendments. - The 2007 amendment by c. 133 substituted "services" for "programs" in the first sentence, substituted "pretrial services agencies" for "pretrial services programs" in the second sentence and substituted "pretrial services" for "a pretrial services program" in the last sentence.

§ 19.2-152.4. Mandated services.

Any city, county or combination thereof which elects or is required to establish a pretrial services agency shall provide all information and services for use by judicial officers as set forth in Article 1 (§ 19.2-119 et seq.) of Chapter 9 of this title.

(1994, 2nd Sp. Sess., cc. 1, 2; 1999, cc. 829, 846; 2007, c. 133.)

The 1999 amendments. - The 1999 amendments by cc. 829 and 846 are identical, and substituted "Article 1 ( § 19.2-119 et seq.) of Chapter 9 of this title" for " §§ 19.2-121 and 19.2-123 ."

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agency" for "pretrial services program."

§ 19.2-152.4:1. Form of oath of office for local pretrial services officer; authorization to seek capias.

Every pretrial services officer who is an employee of a local pretrial services agency established by any city, county or combination thereof or operated pursuant to this article shall take an oath of office as prescribed in § 49-1 and to provide services pursuant to the requirements of this article before entering the duties of his office. The oath of office shall be taken before any general district or circuit court judge in any county or city which has established services for use by judicial officers pursuant to this article.

In addition, any officer of a pretrial services agency established or operated pursuant to this article may seek a capias from any judicial officer for the arrest of any person under the agency's custody and supervision for failure to comply with any conditions of release imposed by a judicial officer, for failure to comply with the conditions of pretrial supervision as established by a pretrial services agency, or when there is reason to believe that the person will fail to appear, will leave, or has left the jurisdiction to avoid prosecution.

(2000, c. 1040; 2007, c. 133.)

Editor's note. - Acts 2000, c. 1040, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment in state correctional facilities. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 in FY 2010."

The 2007 amendments. - The 2007 amendment by c. 133 deleted "warrant or" following "may seek a" in the second paragraph.

§ 19.2-152.4:2. Confidentiality of records of and reports on adult persons under investigation by or in the custody or supervision of a local pretrial services agency.

1. Any pretrial investigation report prepared by a local pretrial services 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; 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.
2. Any report on the progress of an accused under the supervision or custody of a pretrial services 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. (2002, c. 769; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 deleted "no right of review or correction by subject of record or report" from the end in the section heading.

§ 19.2-152.4:3. Duties and responsibilities of local pretrial services officers.

1. Each local pretrial services officer, for the jurisdictions served, shall:
   1. Investigate and interview defendants arrested on state and local warrants and who are detained in jails located in jurisdictions served by the agency while awaiting a hearing before any court that is considering or reconsidering bail, at initial appearance, advisement or arraignment, or at other subsequent hearings;
   2. Present a pretrial investigation report with recommendations to assist courts in discharging their duties related to granting or reconsidering bail;
   3. Supervise and assist all defendants residing within the jurisdictions served and placed on pretrial supervision by any judicial officer within the jurisdictions to ensure compliance with the terms and conditions of bail;
   4. Conduct random drug and alcohol tests on any defendant under supervision for whom a judicial officer has ordered testing or who has been required to refrain from excessive use of alcohol or use of any illegal drug or controlled substance or other defendant-specific condition of bail related to alcohol or substance abuse;
   5. Seek a capias from any judicial officer pursuant to § 19.2-152.4:1 for any defendant placed under supervision or the custody of the agency who fails to comply with the conditions of bail or supervision, when continued liberty or noncompliance presents a risk of flight, a risk to public safety or risk to the defendant;
   6. Seek an order to show cause why the defendant should not be required to appear before the court in those cases requiring a subsequent hearing before the court;
   7. Provide defendant-based information to assist any law-enforcement officer with the return to custody of defendants placed on supervision for which a capias has been sought; and
   8. Keep such records and make such reports as required by the Commonwealth of Virginia Department of Criminal Justice Services.
2. Each local pretrial services officer, for the jurisdictions served, may provide the following optional services, as appropriate and when available resources permit:
   1. Conduct, subject to court approval, drug and alcohol screenings, or tests at investigation pursuant to subsection B of § 19.2-123 or following release to supervision, and conduct or facilitate the preparation of screenings or assessments or both pursuant to state approved protocols;
   2. Facilitate placement of defendants in a substance abuse education or treatment program or services or other education or treatment service when ordered as a condition of bail;
   3. Sign for the custody of any defendant investigated by a pretrial services officer, and released by a court to pretrial supervision as the sole term and condition of bail or when combined with an unsecured bond;
   4. Provide defendant information and investigation services for those who are detained in jails located in jurisdictions served by the agency and are awaiting an initial bail hearing before a magistrate;
   5. Supervise defendants placed by any judicial officer on home electronic monitoring as a condition of bail and supervision;
   6. Prepare, for defendants investigated, the financial statement-eligibility determination form for indigent defense services; and
   7. Subject to approved procedures and if so requested by the court, coordinate for defendants investigated, services for court-appointed counsel and for interpreters for foreign-language speaking and deaf or hard of hearing defendants. (2003, c. 603; 2007, c. 133; 2008, cc. 551, 691; 2019, c. 288.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "agency" for "program" in subdivisions A 1 and B 4; and inserted "or services" following "treatment program" in subdivision B 2.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical and deleted "local" preceding "magistrate" at the end of subdivision B 4.

The 2019 amendments. - The 2019 amendment by c. 288 substituted "deaf or hard of hearing" for "hearing-impaired" in subdivision B 7.

§ 19.2-152.5. Community criminal justice boards.

Each city, county or combination thereof establishing a pretrial services agency shall also establish a community criminal justice board pursuant to § 9.1-178 .

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "pretrial services agency" for "pretrial services program."

§ 19.2-152.6. Withdrawal from pretrial services.

Any participating city or county may, at the beginning of any calendar quarter, by ordinance or resolution of its governing authority, notify the Department of Criminal Justice Services of its intention to withdraw from participation in pretrial services. Such withdrawal shall be effective as of the last day of the quarter in which such notice is given.

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "participation in pretrial services" for "the pretrial services program."

§ 19.2-152.7. Funding; failure to comply.

Counties and cities shall be required to establish a pretrial services agency only to the extent funded by the Commonwealth through the general appropriation act. The Department of Criminal Justice Services shall annually review each agency established under this article to determine compliance with the submitted plan and operating standards. If the Department determines that any agency is not in substantial compliance with the submitted plan or standards, the Department may suspend all or any portion of financial aid made available to the locality for purposes of this article until there is compliance.

The Department shall report annually on or before December 31 to the Governor and the General Assembly on the performance of each pretrial services agency, to include (i) the total amount of funding received by that agency; (ii) the number of investigations conducted by that agency; (iii) the number of defendants placed on pretrial supervision with that agency; (iv) the average daily caseload of that agency; (v) the appearance, public safety, and compliance rates of defendants placed on pretrial supervision with that agency; and (vi) a determination of whether that agency is in substantial compliance with all grant conditions and standards prescribed by the Department pursuant to § 19.2-152.3 . If an agency is not in substantial compliance with all grant conditions and standards prescribed by the Department pursuant to § 19.2-152.3 , that agency and the Department shall develop a plan and identify a timeframe to achieve compliance. A copy of that plan of compliance shall be included in the annual report. The Department shall ensure such report is available to the public.

(1994, 2nd Sp. Sess., cc. 1, 2; 2007, c. 133; 2018, cc. 180, 407.)

The 2007 amendments. - The 2007 amendment by c. 133 substituted "agency" for "program" in the first and second sentences and substituted "any agency" for "a program" in the second sentence.

The 2018 amendments. - The 2018 amendments by cc. 180 and 407 are nearly identical, and in the first paragraph, substituted "annually review" for "periodically review"; and added the second paragraph.

§ 19.2-152.7:1. Definitions.

As used in this chapter:

"Act of violence, force, or threat" means any act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury. Such act includes, but is not limited to, any forceful detention, stalking, criminal sexual assault in violation of Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or any criminal offense that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury.

(2011, cc. 445, 480.)

Cross references. - As to communication of emergency substantial risk orders, see § 19.2-152.13 et seq.

§ 19.2-152.8. Emergency protective orders authorized.

1. 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.
2. When a law-enforcement officer or an alleged victim asserts under oath to a judge or magistrate that such person is being or has been subjected to an act of violence, force, or threat and on that assertion or other evidence the judge or magistrate finds that (i) there is probable danger of a further such act being committed by the respondent against the alleged victim or (ii) a petition or warrant for the arrest of the respondent has been issued for any criminal offense resulting from the commission of an act of violence, force, or threat, 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 violence, force, or threat or criminal offenses resulting in injury to person or property;
   2. Prohibiting such contacts by the respondent with the alleged victim or the alleged victim's family or household members, including prohibiting the respondent from being in the physical presence of the alleged victim or the alleged victim's family or household members, as the judge or magistrate deems necessary to protect the safety of such persons;
   3. Such other conditions as the judge or magistrate deems necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses resulting in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
   4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
3. An emergency protective order issued pursuant to this section shall expire at 11:59 p.m. on the third day following issuance. If the expiration occurs on a day that the court is not in session, the emergency protective order shall be extended until 11:59 p.m. on the next 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.
4. A law-enforcement officer may request an emergency protective order pursuant to this section and, if the person in need of protection is physically or mentally incapable of filing a petition pursuant to § 19.2-152.9 or 19.2-152.10 , may request the extension of an emergency protective order for an additional period of time not to exceed three days after expiration of the original order. The request for an emergency protective order or extension of an order may be made 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 alleged victim of such crime.
5. The court or magistrate shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court or magistrate. A copy of an emergency protective order issued pursuant to this section containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement 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 Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith upon the respondent. Upon service, the agency making service shall enter the date and time of service and other appropriate information required into the Virginia Criminal Information Network and make due return to the court. One copy of the order shall be given to the alleged victim of such crime. The judge or magistrate who issues an oral order pursuant to an electronic request by a law-enforcement officer shall verify the written order to determine whether the officer who reduced it to writing accurately transcribed the contents of the oral order. The original copy shall be filed with the clerk of the 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 forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court. Upon request, the clerk shall provide the alleged victim of such crime with information regarding the date and time of service.
6. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
7. 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 § 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.
8. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
9. As used in this section:

   "Copy" includes a facsimile copy.

   "Physical presence" includes (i) intentionally maintaining direct visual contact with the petitioner or (ii) unreasonably being within 100 feet from the petitioner's residence or place of employment.

10. No fee shall be charged for filing or serving any petition pursuant to this section.
11. No emergency protective order shall be issued pursuant to this section against a law-enforcement officer for any action arising out of the lawful performance of his duties.
12. Upon issuance of an emergency protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

    (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2001, c. 474; 2002, cc. 507, 706, 810, 818; 2003, c. 730; 2008, cc. 73, 246; 2009, cc. 341, 732; 2011, cc. 445, 480; 2012, cc. 146, 637, 827; 2014, c. 346; 2016, c. 455; 2018, c. 652.)

Cross references. - As to penalty for violation of stalking protective order, see § 18.2-60.4 .

Editor's note. - Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "of any kind" in subdivision B 3.

The 2001 amendments. - The 2001 amendment by c. 474 added the second sentence in subsection E.

The 2002 amendments. - The 2002 amendment by ch. 507 substituted "Upon" for "As soon as practicable after" at the beginning of the first sentence of subsection E; and inserted present subsection H and redesignated former subsections H and I as present subsections I and J.

The 2002 amendment by c. 706, in subsection E, inserted the present fifth sentence, deleted "verified by the judge or magistrate who issued the order and then" preceding "filed" in the present sixth sentence, and substituted "shall be" for "shall also be attested" in the seventh sentence.

The 2002 amendments by cc. 810 and 818 are identical and, in subsection E, substituted "Upon" for "As soon as practicable after" in the first sentence, deleted "feasible and" preceding "practical" in the second sentence, and capitalized "criminal information network" throughout.

The 2003 amendments. - The 2003 amendment by c. 730, in the introductory language of subsection B, inserted "or an alleged victim of a criminal offense resulting in a serious bodily injury to the alleged victim," inserted "or a criminal offense resulting in a serious bodily injury to the alleged victim," and substituted "the alleged victim and" for "the allegedly stalked person and" in clause (i); inserted "violence or acts of" in subdivision B 1; substituted "the alleged victim of such crime" for "the allegedly stalked person" in subdivision B 2; substituted "prevent acts of stalking, or criminal offenses resulting in injury to person or property, or" for "prevent further acts of stalking" in subdivision B 3; substituted "72 hours" for "seventy-two hours" in the first sentence, and "72-hour period" for "seventy-two-hour period" in the second sentence of subsection C; and substituted "the alleged victim of such crime" for "the allegedly stalked person" at the end of subsection D, at the end of the fourth sentence of subsection E, and near the middle of the last sentence of subsection E.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical, and in subsection C, substituted "shall expire at the end of the third day following issuance" for "shall expire 72 hours after issuance" at the end of the first sentence, and in the second sentence, deleted "of the 72-hour period" following "If the expiration" and substituted "the end" for "5 p.m."; rewrote subsection E; and added subsection K.

The 2009 amendments. - The 2009 amendment by c. 341, in subsection B, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 " twice and made a related change; and in subdivisions B 1 and B 3, inserted "acts of sexual battery."

The 2009 amendment by c. 732, in subsection C, in the first sentence, substituted "11:59 p.m. on" for "the end of," in the second sentence, substituted "on a day" for "at a time" and "11:59 p.m. on" for "the end of" and deleted "business" preceding "day that the"; in subsection E, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted "and addendum" preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection K, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments by cc. 445 and 480 are identical, and rewrote the first paragraph in subsection B; in subdivision B 1, substituted "force, or threat or criminal offenses resulting in injury to person or property" for "acts of sexual battery, or acts of stalking in violation of § 18.2-60.3 "; in subdivision B 2, deleted "of such crime" following "victim"; in subdivision B 3, added the clause (i) designation, and therein substituted "acts of violence, force, or threat" for "acts of stalking, acts of sexual battery, or" and added the clause (ii) and (iii) designations; and in subsection D, subdivided the former first sentence, adding the language beginning "and, if the person in need of protection" in the first sentence and "The request for an emergency protective order or extension of an order may be made" in the second sentence.

The 2012 amendments. - The 2012 amendment by c. 146 added subsection K.

The 2012 amendment by c. 637 substituted "or the alleged victim's family" for "or such person's family" in subdivision B 2.

The 2012 amendment by c. 827, effective April 18, 2012, deleted "subsection B of" preceding " § 15.2-1731 " in G (ii).

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision B 4 and made related changes.

The 2016 amendments. - The 2016 amendment by c. 455, in subdivision B 2, inserted "including prohibiting the respondent from being in the physical presence of the alleged victim or the alleged victim's family or household members"; and in subsection I, added the definition of "Physical presence" and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection L.

Law review. - For article "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-219. Emergency Protective Order.

OPINIONS OF THE ATTORNEY GENERAL

Enforcement of protective orders. - A law-enforcement agency should not remove a protective order from Virginia Criminal Information Network (VCIN) unless it receives a court order of dissolution or the protective order has expired by its own terms or by operation of law. Where more than one active protective order exists involving the same parties, an individual may be charged with violating a discrete provision of either order. See opinion of Attorney General to The Honorable Steve A. Hutcherson, Campbell County Sheriff's Office, 19-006, 2019 Va. AG LEXIS 37 (12/20/19).

A law-enforcement officer may lawfully detain an individual for the purpose of serving a protective order issued pursuant to Chapter 9.1 of Title 19.2 if the officer has reasonable, articulable suspicion of criminal activity, but may not lawfully extend the period of an otherwise-justified but unrelated detention for the purpose of serving such an order. See opinion of Attorney General to The Honorable Colette Wallace McEachin, Commonwealth's Attorney, City of Richmond, 20-002, 2020 Va. AG LEXIS 35 (10/30/20).

Petition for protective orders by law enforcement on behalf of minors. - Law-enforcement officers may file petitions for emergency protective orders on behalf of minors who are victims of family abuse, stalking, sexual assault or other acts of criminal violence. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Petition by emancipated minors for protective orders. - Emancipated minor may file petitions for protective orders under applicable statutes. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Meaning of "primary law-enforcement agency." - In a city with both a police department and a sheriff's office, the police department is the primary law-enforcement agency responsible for the service of protective orders issued pursuant to §§ 16.1-253.1, 16.1-253.4, 16.1-279.1, and §§ 19.2-152.8 , 19.2-152.9 , and 19.2-152.10 . See opinion of Attorney General to The Honorable Dana Lawhorne, Sheriff, City of Alexandria, 20-037, 2020 Va. AG LEXIS 37 (12/11/20).

§ 19.2-152.9. Preliminary protective orders.

1. Upon the filing of a petition alleging that (i) the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat, or (ii) a petition or warrant has been issued for the arrest of the alleged perpetrator for any criminal offense resulting from the commission of an act of violence, force, or threat, the court may issue a preliminary protective order against the alleged perpetrator 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. If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 19.2-152.8 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings. Immediate and present danger of any act of violence, force, or threat or evidence sufficient to establish probable cause that an act of violence, force, or threat 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 violence, force, or threat or criminal offenses that may result in injury to person or property;
   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;
   3. Such other conditions as the court deems necessary to prevent (i) acts of violence, force, or threat, (ii) criminal offenses that may result in injury to person or property, or (iii) communication or other contact of any kind by the respondent; and
   4. Granting the petitioner the possession of any companion animal as defined in § 3.2-6500 if such petitioner meets the definition of owner in § 3.2-6500.
2. The court shall forthwith, but in all cases no later than the end of the business day on which the order was issued, enter and transfer electronically to the Virginia Criminal Information Network the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court. A copy of a preliminary protective order containing any such identifying information shall be forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders. Upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the alleged perpetrator in person as provided in § 16.1-264, and due return made to the court. However, if the order is issued by the circuit court, the clerk of the circuit court shall forthwith forward an attested copy of the order containing the respondent's identifying information and the name, date of birth, sex, and race of each protected person provided to the court to the primary law-enforcement agency providing service and entry of protective orders and upon receipt of the order, the primary law-enforcement 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 Criminal Information Network established and maintained by the Department pursuant to Chapter 2 (§ 52-12 et seq.) of Title 52 and the order shall be served forthwith on the alleged perpetrator in person as provided in § 16.1-264. Upon service, the agency making service shall enter the date and time of service and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network and make due return to the court. The preliminary order shall specify a date for the full hearing. The hearing shall be held within 15 days of the issuance of the preliminary order, unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered. If the respondent fails to appear at this hearing because the respondent was not personally served, the court may extend the protective order for a period not to exceed six months. The extended protective order shall be served as soon as possible on the respondent. However, upon motion of the respondent and for good cause shown, the court may continue the hearing. The preliminary order shall remain in effect until the hearing. 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 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 petitioner's motion to dissolve the preliminary protective order, a dissolution order may be issued ex parte by the court with or without a hearing. If an ex parte hearing is held, it shall be heard by the court as soon as practicable. If a dissolution order is issued ex parte, the court shall serve a copy of such dissolution order on respondent in conformity with §§ 8.01-286.1 and 8.01-296 . Upon receipt of the return of service or other proof of service pursuant to subsection C of § 16.1-264, the clerk shall forthwith forward an attested copy of the preliminary protective order to primary law-enforcement agency and the agency shall forthwith verify and enter any modification as necessary into the Virginia Criminal Information Network as described above. If the order is later dissolved or modified, a copy of the dissolution or modification order shall also be attested, forwarded forthwith to the primary law-enforcement agency responsible for service and entry of protective orders, and upon receipt of the order by the primary law-enforcement agency, the agency shall forthwith verify and enter any modification as necessary to the identifying information and other appropriate information required by the Department of State Police into the Virginia Criminal Information Network as described above and the order shall be served forthwith and due return made to the court.
3. The preliminary order is effective upon personal service on the alleged perpetrator. Except as otherwise provided, a violation of the order shall constitute contempt of court.
4. 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 that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat by a preponderance of the evidence.
5. No fees shall be charged for filing or serving petitions pursuant to this section.
6. Neither a law-enforcement agency, the attorney for the Commonwealth, a court nor the clerk's office, nor any employee of them, may disclose, except among themselves, the residential address, telephone number, or place of employment of the person protected by the order or that of the family of such person, except to the extent that disclosure is (i) required by law or the Rules of the Supreme Court, (ii) necessary for law-enforcement purposes, or (iii) permitted by the court for good cause.
7. As used in this section, "copy" includes a facsimile copy.
8. Upon issuance of a preliminary protective order, the clerk of the court shall make available to the petitioner information that is published by the Department of Criminal Justice Services for victims of domestic violence or for petitioners in protective order cases.

   (1997, c. 831; 1998, cc. 569, 684; 1999, c. 371; 2001, c. 101; 2002, cc. 507, 810, 818; 2003, c. 730; 2008, cc. 73, 128, 246; 2009, cc. 341, 732; 2011, cc. 445, 480; 2014, c. 346; 2018, c. 652; 2019, cc. 197, 718; 2020, c. 137.)

Cross references. - As to penalty for violation of stalking protective order, see § 18.2-60.4 .

Editor's note. - Acts 2014, c. 346, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 806 of the Acts of Assembly of 2013 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

The 1999 amendment inserted "of any kind" in subdivision A 3.

The 2001 amendments. - The 2001 amendment by c. 101 added the sixth and seventh sentences in subsection B.

The 2002 amendments. - The 2002 amendment by ch. 507, in subsection B, substituted "Upon" for "As soon as practicable after" at the beginning of the first paragraph, and substituted "shall, upon receipt, enter" for "shall, on the date of receipt, enter" in the first sentence of the second paragraph; and inserted present subsection F and redesignated former subsection F as present subsection G.

The 2002 amendments by cc. 810 and 818 are identical and, in subsection B, capitalized "criminal information network" throughout, in the first paragraph, substituted "Upon" for "As soon as practicable after" in the first sentence and deleted "feasible and" preceding "practical" in the second sentence; and substituted "upon" for "on the date of" in the first sentence in the second paragraph.

The 2003 amendments. - The 2003 amendment by c. 730, in subsection A, in the first sentence, inserted "or a criminal offense resulting in a serious bodily injury to the petitioner" in clause (i) and substituted "alleged perpetrator of such act or acts" for "alleged stalker" and "alleged perpetrator in order" for "alleged stalker in order" in clause (ii) of the first sentence, and in the third sentence, inserted "or another criminal offense that may result in a serious bodily injury to the petitioner" and "or a criminal offense resulting in a serious bodily injury to the petitioner"; inserted "criminal offenses that may result in injury to person or property or" in subdivision A 1; substituted "prevent acts of stalking, criminal offenses that may result in injury to person or property, or" for "prevent further acts of stalking" in subdivision A 3; substituted "15 days" for "fifteen days" in the fifth sentence of subsection B; substituted "alleged perpetrator" for "alleged stalker" at the end of the first sentence of subsection C; and inserted "a criminal offense resulting in a serious bodily injury to the petitioner" in subsection D.

The 2008 amendments. - The 2008 amendments by cc. 73 and 246 are identical and rewrote subsection B and added subsection H.

The 2008 amendment by c. 128 inserted the eighth and ninth sentences in the first paragraph of subsection B.

The 2009 amendments. - The 2009 amendment by c. 341, in subsection A, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 " twice; in subdivisions A 1 and A 3, inserted "acts of sexual battery"; in subsection B, in the first paragraph, substituted "perpetrator" for "stalker" twice; and in subsection D, inserted "sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 ."

The 2009 amendment by c. 732, in subsection B, in the first sentence, inserted "electronically to the Virginia Criminal Information Network the respondent's" and "and the name, date of birth, sex, and race of each protected person," and deleted "electronically to the Virginia Criminal Information Network" from the end, in the second sentence, deleted "and an addendum" preceding "containing any such," in the third sentence, deleted "and addendum"' preceding "by the primary," in the fourth sentence, deleted "and an addendum" following "copy of the order," inserted "the respondent's" and "and the name, date of birth, sex, and race of each protected person provided to the court" and deleted "and addendum" following "receipt of the order"; and deleted subsection H, which read: "If any identifying information in the addendum is determined to be incorrect by the entering agency, the agency shall enter the corrected information into the Virginia Criminal Information Network."

The 2011 amendments. - The 2011 amendments, by cc. 445 and 480 are identical, and in the first paragraph in subsection A, in the first sentence, rewrote clause (i), which read "the petitioner is or has been, within a reasonable period of time subjected to stalking, sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , or a criminal offense resulting in a serious bodily injury to the petitioner, and," in clause (ii), inserted "petition or" and substituted "for any criminal offense resulting from the commission of an act of violence, force, or threat" for "of such act or acts," and rewrote the last sentence; in subdivision A 1, inserted "acts of violence, force, or threat or" and deleted "acts of sexual battery, or acts of stalking in violation of § 18.2-60.3 " from the end; in subdivision A 3, added the clause designations, and substituted "violence, force, or threat" for "stalking, acts of sexual battery"; in subsection C, deleted "in § 16.1-253.2" following "provided"; and in subsection D, substituted "allegation that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat" for "allegation of a criminal offense resulting in a serious bodily injury to the petitioner, sexual battery in violation of § 18.2-67.4 , aggravated sexual battery in violation of § 18.2-67.3 , or stalking."

The 2014 amendments. - The 2014 amendment by c. 346 added subdivision A 4 and made related changes.

The 2018 amendments. - The 2018 amendment by c. 652 added subsection H.

The 2019 amendments. - The 2019 amendment by c. 197 inserted "unless the court is closed pursuant to § 16.1-69.35 or 17.1-207 and such closure prevents the hearing from being held within such time period, in which case the hearing shall be held on the next day not a Saturday, Sunday, legal holiday, or day on which the court is lawfully closed. If such court is closed pursuant to § 16.1-69.35 or 17.1-207 , the preliminary protective order shall remain in full force and effect until it is dissolved by such court, until another preliminary protective order is entered, or until a protective order is entered" in the first paragraph of subsection B.

The 2019 amendment by c. 718, in subsection A, inserted "If an ex parte order is issued without an affidavit or a completed form as prescribed by subsection D of § 19.2-152.8 being presented, the court, in its order, shall state the basis upon which the order was entered, including a summary of the allegations made and the court's findings."

The 2020 amendments. - The 2020 amendment by c. 137, added the last three sentences in the first paragraph of subsection B.

Law review. - For article, "Family Law," see 35 U. Rich. L. Rev. 651 (2001).

For article "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Research References. - Virginia Forms (Matthew Bender). No. 9-221. Petition for Protective Order (Spanish); No. 9-223. Preliminary Protective Order--Stalking (Spanish).