Justice Matters with Bryan Porter: A look at new Virginia laws

Justice Matters with Bryan Porter: A look at new Virginia laws
Bryan Porter in his office at the Alexandria Courthouse. (Photo Credit: Missy Schrott)

The Virginia General Assembly recently wrapped up an unprecedented 83-day special session that began on Aug. 18. While a large portion of the session was dedicated to passing a budget, a significant number of changes to the criminal code were enacted as well. As I have previously promised, this month’s column will look at several of those new laws.

The assembly made several changes to the law surrounding police use of force. For example, the use of neck restraints, commonly referred to as “choke holds,”
by law enforcement officers was prohibited unless “immediately necessary” to protect the officer or another person from death or serious bodily injury. A similar provision prohibits an officer from shooting into or at a moving vehicle unless doing so is “immediately necessary” to prevent death or great bodily injury.

The assembly also enacted provisions creating a “duty to intervene” for law enforcement officers. The new code section requires an officer to intervene to stop a fellow officer from using excessive force during an arrest.

The intervening officer also has a duty to render aid and medical attention to any person injured as a result of excessive force. This code section also requires the intervening officer to report the incident to their department and provides whistleblower protection to the reporting officer.

The legislature also restricted the right of police to initiate traffic stops for certain minor traffic violations. For example, an officer who observes a car with a broken taillight or heavily tinted windows may no longer initiate a traffic stop for these violations.

The code was also changed to provide motorists with a three-month “grace period” for expired inspection stickers and license plate registrations. An officer may not initiate a stop based on an expired sticker “prior to the first day of the fourth month after the original expiration date.” For example, if your license plate expired on Dec. 31, 2020, the police may not stop you for expired plates until April 1, 2021.

Police officers have also been prohibited from stopping pedestrians for jaywalking and from conducting a warrantless search based solely on the odor of marijuana.

Significant changes were made to the process by which law enforcement officers execute search warrants. The biggest change is that so-called “no knock” search warrants, in which the police make entry into a home without first alerting the occupants of their presence, have been eliminated. Officers executing a warrant have to be identifiable as law enforcement and must knock and announce before entering.

Additionally, nighttime service of warrants was severely restricted and now requires the prior approval of a judge or magistrate.

Significant changes were made to courtroom procedure as well. For decades, Virginia has been among a small minority of states that allowed a criminal jury to recommend a sentence after conviction. That ability has been eliminated in most circumstances, meaning the judge will be solely responsible for ascertaining punishment after conviction. The upshot is likely a significantly higher number of criminal juries.

With the agreement of both the prosecutor and the defense, trial judges may now defer criminal cases on certain conditions and then subsequently dismiss the charge if the charged citizen complies with the court-imposed conditions. This is a much-needed change as the court’s authority in these areas has been unclear for many years.

Finally, the Assembly created a couple of new criminal offenses. For example, a new code section was enacted making it clear that law enforcement officers may not engage in sexual relations with those in their custody. Likewise, if a person falsely reports to 911 that a person is committing a crime based on the person’s race, religious conviction, gender, disability, gender identity, sexual orientation, color or national origin, the person is guilty of a felony.

Given the devil is often in the details of new legislation, I encourage citizens to go online and read the specific texts associated with these bills. I likewise note that some of the laws discussed above go into effect on Jan. 1, while others may have a slightly delayed enactment. To be certain of effective dates, it behooves the reader to peruse the official versions of the enacted bills. The necessary text may be found at: www.lis.virginia.gov.

The writer is Commonwealth’s Attorney for Alexandria.