Bill Text: VA HB485 | 2012 | Regular Session | Prefiled
Bill Title: Drug charges; expungement of marijuana conviction and those dismissed.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-14 - House: Left in Courts of Justice [HB485 Detail]
Download: Virginia-2012-HB485-Prefiled.html
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12101289D Be it enacted by the General Assembly of Virginia: 1. That §§18.2-250.1, 18.2-251, and 19.2-392.2 of the Code of Virginia are amended and reenacted as follows: §18.2-250.1. Possession of marijuana unlawful. A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (§54.1-3400 et seq.). Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana. Any person who violates this section B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in §53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties. §18.2-251. Persons charged with first offense may be placed on probation; conditions; substance abuse screening, assessment treatment and education programs or services; drug tests; costs and fees; violations; discharge. Whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to narcotic drugs, marijuana, synthetic cannabinoids, or stimulant, depressant, or hallucinogenic drugs, or has not previously had a proceeding against him for violation of such an offense dismissed as provided in this section, pleads guilty to or enters a plea of not guilty to possession of a controlled substance under §18.2-250 or to possession of marijuana under §18.2-250.1, or to possession of synthetic cannabinoids under subsection B of §18.2-248.1:1, the court, upon such plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. As a term or condition, the court shall require the accused to undergo a substance abuse assessment pursuant to §18.2-251.01 or 19.2-299.2, as appropriate, and enter treatment and/or education program or services, if available, such as, in the opinion of the court, may be best suited to the needs of the accused based upon consideration of the substance abuse assessment. The program or services may be located in the judicial district in which the charge is brought or in any other judicial district as the court may provide. The services shall be provided by (i) a program licensed by the Department of Behavioral Health and Developmental Services, by a similar program which is made available through the Department of Corrections, (ii) a local community-based probation services agency established pursuant to § 9.1-174, or (iii) an ASAP program certified by the Commission on VASAP. The court shall require the person entering such program under the provisions of this section to pay all or part of the costs of the program, including the costs of the screening, assessment, testing, and treatment, based upon the accused's ability to pay unless the person is determined by the court to be indigent. As a condition of probation, the court shall require the accused (i) to successfully complete treatment or education program or services, (ii) to remain drug and alcohol free during the period of probation and submit to such tests during that period as may be necessary and appropriate to determine if the accused is drug and alcohol free, (iii) to make reasonable efforts to secure and maintain employment, and (iv) to comply with a plan of at least 100 hours of community service for a felony and up to 24 hours of community service for a misdemeanor. Such testing shall be conducted by personnel of the supervising probation agency or personnel of any program or agency approved by the supervising probation agency. The court shall, unless done at arrest, order the accused to report to the original arresting law-enforcement agency to submit to fingerprinting. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. Discharge and dismissal under this section shall also be eligible for expungement pursuant to §19.2-392.2. Notwithstanding any other provision of this section, whenever a court places an individual on probation upon terms and conditions pursuant to this section, such action shall be treated as a conviction for purposes of §§ 18.2-259.1, 22.1-315 and 46.2-390.1, and the driver's license forfeiture provisions of those sections shall be imposed. The provisions of this paragraph shall not be applicable to any offense for which a juvenile has had his license suspended or denied pursuant to §16.1-278.9 for the same offense. §19.2-392.2. Expungement of police and court records. A. If a person is charged with the commission of a crime or
any offense defined in Title 18.2 A1. Any person who (i) was convicted of a violation of §18.2-250.1 or (ii) has had a charge of possession of marijuana in violation of §18.2-250.1 discharged and dismissed, or a drug charge discharged and dismissed, in accordance with the provisions of §18.2-251 more than five years prior to his petition for expungement may file a petition setting forth the relevant facts and requesting expungement of the police records and the court records relating to the charge, or the charge and conviction. The Department of Criminal Justice Services shall maintain a record of an expungement under this subsection, to be made available to any attorney for the Commonwealth upon request. B. If any person whose name or other identification has been used without his consent or authorization by another person who has been charged or arrested using such name or identification, he may file a petition with the court disposing of the charge for relief pursuant to this section. Such person shall not be required to pay any fees for the filing of a petition under this subsection. A petition filed under this subsection shall include one complete set of the petitioner's fingerprints obtained from a law-enforcement agency. C. The petition with a copy of the warrant or indictment if reasonably available shall be filed in the circuit court of the county or city in which the case was disposed of by acquittal or being otherwise dismissed and shall contain, except where not reasonably available, the date of arrest and the name of the arresting agency. Where this information is not reasonably available, the petition shall state the reason for such unavailability. The petition shall further state the specific criminal charge to be expunged, the date of final disposition of the charge as set forth in the petition, the petitioner's date of birth, and the full name used by the petitioner at the time of arrest. D. A copy of the petition shall be served on the attorney for the Commonwealth of the city or county in which the petition is filed. The attorney for the Commonwealth may file an objection or answer to the petition within 21 days after it is served on him. E. The petitioner shall obtain from a law-enforcement agency one complete set of the petitioner's fingerprints and shall provide that agency with a copy of the petition for expungement. The law-enforcement agency shall submit the set of fingerprints to the Central Criminal Records Exchange (CCRE) with a copy of the petition for expungement attached. The CCRE shall forward under seal to the court a copy of the petitioner's criminal history, a copy of the source documents that resulted in the CCRE entry that the petitioner wishes to expunge, and the set of fingerprints. Upon completion of the hearing, the court shall return the fingerprint card to the petitioner. F. After receiving the criminal history record information from the CCRE, the court shall conduct a hearing on the petition. If the court finds that the continued existence and possible dissemination of information relating to the arrest of the petitioner causes or may cause circumstances which constitute a manifest injustice to the petitioner, it shall enter an order requiring the expungement of the police and court records, including electronic records, relating to the charge and communicate the order to the Department of Criminal Justice Services. Otherwise, it shall deny the petition. However, if the petitioner has no prior criminal record and the arrest was for a misdemeanor violation, the petitioner shall be entitled, in the absence of good cause shown to the contrary by the Commonwealth, to expungement of the police and court records relating to the charge, and the court shall enter an order of expungement and communicate the order to the Department of Criminal Justice Services. G. The Commonwealth shall be made party defendant to the proceeding. Any party aggrieved by the decision of the court may appeal, as provided by law in civil cases. H. Notwithstanding any other provision of this section, when
the charge is dismissed because the court finds that the person arrested or
charged is not the person named in the summons, warrant, indictment or
presentment, the court dismissing the charge shall, upon motion of the person
improperly arrested or charged, enter an order requiring expungement of the
police and court records relating to the charge. Such order shall contain a
statement that the dismissal and expungement are ordered pursuant to this
subsection and shall be accompanied by the complete set of the petitioner's
fingerprints filed with his petition. Upon the entry of such order, it shall be
treated as provided in subsection K I. Notwithstanding any other provision of this section, when a
person has been granted an absolute pardon for the commission of a crime that
he did not commit, he may file in the circuit court of the county or city in
which the conviction occurred a petition setting forth the relevant facts and
requesting expungement of the police records and the court records relating to
the charge and conviction, and the court shall enter an order requiring
expungement of the police and court records relating to the charge and
conviction. Such order shall contain a statement that the expungement is
ordered pursuant to this subsection. Upon the entry of such order, it shall be
treated as provided in subsection K J. Upon receiving a copy of a writ vacating a conviction
pursuant to §19.2-327.5 or 19.2-327.13, the court shall enter an order
requiring expungement of the police and court records relating to the charge and
conviction. Such order shall contain a statement that the expungement is
ordered pursuant to this subsection. Upon the entry of the order, it shall be
treated as provided in subsection K K. Upon the entry of an order of expungement, the clerk of the court shall cause a copy of such order to be forwarded to the Department of State Police, which shall, pursuant to rules and regulations adopted pursuant to §9.1-134, direct the manner by which the appropriate expungement or removal of such records shall be effected. Any person whose criminal record is expunged of any charge or conviction may lawfully reply to any inquiry regarding his criminal record that he has not been charged with or convicted of the criminal offense that was the subject of the expungement. L. Costs shall be as provided by §17.1-275, but shall not be recoverable against the Commonwealth. M. Any order entered where (i) the court or parties failed to strictly comply with the procedures set forth in this section or (ii) the court enters an order of expungement contrary to law, shall be voidable upon motion and notice made within three years of the entry of such order. 2. 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 $0 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. |
