Criminal Justice (Courts)

Certain civil arrests prohibited in courthouses; penalty. Provides that a party who is required to attend any court of the Commonwealth, or such party's family or household member or person attending the court with such party to serve as a witness, shall be privileged from civil arrest, defined in the bill, while attending, going to, or coming from the court. The bill also prohibits a person with the lawful authority to perform civil arrests from entering a courthouse to conduct a civil arrest unless he complies with certain requirements, including presenting a judicial warrant or judicial order authorizing the civil arrest to the appropriate courthouse officer or employee. Additionally, the bill requires that any judicial warrant or judicial order authorizing the civil arrest be reviewed by a designated judicial officer or attorney before a civil arrest pursuant to such warrant or order can be performed. Finally, the bill provides that any person who conducts a civil arrest, or facilitates or assists with the performance of, a civil arrest in violation of the provisions of the bill shall be punished with contempt of court.

Emergency protective orders; duration. Extends the duration of an emergency protective order from a maximum of three days to a maximum of two weeks. The bill permits a petitioner, prior to the expiration of an emergency protective order, to file a written motion requesting to extend such order and authorizes a court, upon good cause shown, to extend the emergency protective order for an additional period of time not to exceed two weeks after expiration of the original order. Finally, the bill permits a court to continue an emergency protective order to the first hearing date of any related criminal offense. The bill contains technical amendments.

Affirmative defense or reduced penalty for mental illness, neurocognitive disorder, or intellectual or developmental disability. Provides an affirmative defense to prosecution of a person for assault or assault and battery against certain specified persons for which the enhanced Class 6 felony and six-month mandatory minimum apply if such person proves, by a preponderance of the evidence, that at the time of the assault or assault and battery (i) the person's behaviors were a result of (a) mental illness or (b) a neurocognitive disorder, including dementia, or an intellectual disability or a developmental disability such as autism spectrum disorder, as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, or (ii) the person met the criteria for issuance of an emergency custody order.The bill requires such person or his counsel to give notice in writing to the attorney for the Commonwealth at least 60 days prior to his trial in circuit court, or at least 14 days if the trial date is set within 21 days of his last court appearance, of his intention to present such evidence. Additionally, if such notice is not given, and the person proffers such evidence at his trial as a defense, then the court may in its discretion either allow the Commonwealth a continuance or, under appropriate circumstances, bar such person from presenting such evidence; any such continuance shall not be counted for speedy trial purposes pursuant to relevant law.Lastly, the bill provides that if such person does not prove that his behaviors were a result of his mental illness, intellectual disability, developmental disability, or neurocognitive disorder but the evidence establishes that his mental illness, intellectual disability, developmental disability, or neurocognitive disorder otherwise contributed to his behaviors, the finder of fact may find such person guilty of a Class 1 misdemeanor. The bill also provides that such affirmative defense shall not be construed to allow an affirmative defense for voluntary intoxication. This bill is identical to HB 246.

Parole; exception to limitation on the application of parole statutes. Provides that a person is eligible to be considered for parole if such person (i) was sentenced by a jury after the date of the Supreme Court of Virginia decision in Fishback v. Commonwealth, 260 Va. 104 (2000), in which the Supreme Court held that a jury should be instructed on the fact that parole has been abolished, for a felony committed on or after the abolition of parole going into effect on January 1, 1995; (ii) can prove by the preponderance of the evidence that the jury in his case was not instructed on the fact that parole has been abolished; and (iii) remained incarcerated for the offense on July 1, 2026, and the offense was not one of the following: (a) a Class 1 felony; (b) if the victim was a minor, rape, forcible sodomy, object sexual penetration, or aggravated sexual battery or an attempt to commit any such act; or (c) carnal knowledge. The bill also requires the Parole Board to establish procedures for consideration of parole of persons entitled to it and also provides that any person who is eligible for parole as of July 1, 2026, shall be scheduled for a parole interview no later than July 1, 2027, allowing for extension of time for reasonable cause.

Court appearance of a person not free on bail. Makes various changes to provisions regarding bail hearings, including (i) the appointment of counsel for the accused; (ii) the information provided to counsel for the accused; (iii) a requirement that counsel for the accused, when practicable, be provided with adequate time to confer with the accused prior to any bail hearing; and (iv) the compensation of counsel for the accused. The bill provides that, effective in due course, the chief judge in each circuit shall create a plan to be completed by November 1, 2026, that establishes the means by which the jurisdiction will meet such provisions. The remaining provisions of the bill have a delayed effective date of January 1, 2027.

Expungement of police and court records. Permits the expungement of police and court records relating to an initial charge when a person is arrested, charged, summonsed, or indicted for the commission of an infraction, a crime, or a civil offense and such person is not ultimately convicted, provided that no stipulation of facts sufficient to find guilt was entered or the court did not determine the facts sufficient to find guilt but deferred adjudication or disposition to a later date. The bill also permits that a petition may request expungement of the police and court records for multiple charges arising out of separate transactions or occurrences. The bill also provides that if a person was the subject of a delinquency or traffic proceeding and was not ultimately adjudicated delinquent or convicted, provided that no stipulation of facts sufficient to find guilt was entered or the court did not determine facts sufficient to find guilt but deferred adjudication or disposition to a later date, such matter is eligible for expungement. Lastly, the bill (i) allows certain deferred dispositions to be eligible for expungement; (ii) requires the attorney for the Commonwealth, if he files an objection to the petition for expungement, to include the factual basis for such objection; (iii) provides that the unavailability of certain information shall not be a basis for refusing expungement; (iv) requires the court, if it finds potential manifest injustice to the petitioner, to order expungement; (v) provides that the existence of a prior conviction alone shall not be a sufficient basis to deny an expungement; (vi) allows any person whose petition for relief is the subject of an appeal to proceed under a pseudonym pursuant to relevant law; and (vii) allows specifically identified emergency or preliminary protective orders to be expunged. The bill has a delayed effective date of December 1, 2026.

Fines, costs, forfeitures, penalties, and restitution; collection fees; assessment against incarcerated defendant; deferred payment agreement. Extends from 90 days without payment to 180 days without payment the period of delinquency necessary for an account to be included on the required monthly report of delinquent accounts made by the clerk of the circuit court and district court.The bill also provides that for any defendant sentenced to an active term of incarceration and ordered to pay any fine, cost, forfeiture, or penalty related to the charge that such defendant is incarcerated for, or any other charge for which such defendant was sentenced on the same day, the court shall enter such defendant into a deferred payment agreement for such fines, costs, forfeitures, or penalties. The bill requires the due date for such deferred payment agreement to be set no earlier than the defendant's scheduled release from incarceration on the charge for which such defendant received the longest period of active incarceration. The bill has a delayed effective date of January 1, 2027. This bill was incorporated into SB 180.

Limitation on prosecution of felony due to lapse of time after finding of probable cause; misdemeanors; exceptions; retaining counsel. Provides that the speedy trial statute is tolled for the accused to retain private counsel or have counsel appointed to him pursuant to relevant law. The bill requires the court to conduct, not more than 30 days apart, reviews of the accused's attorney status and provides that such tolling shall end when the accused has either retained counsel or had counsel appointed to him and such counsel has entered an appearance in the case or the accused executes a valid waiver of counsel. Lastly, the bill provides that such provisions shall not be construed as ending the tolling of speedy trial for any other reason pursuant to relevant law.

Abolition of fees; legal representation of indigent defendant; jury trial costs; report. Eliminates the fees for the cost of court-appointed counsel or public defender representation for persons who are determined to be indigent. The bill also eliminates fees for persons who utilize a jury trial. The bill contains a reenactment clause for such elimination of fees.The bill also directs the Indigent Defense Commission, in consultation with the Executive Secretary of the Supreme Court or his designee, to convene a work group with all relevant stakeholders, including the Attorney General or his designee, the Secretary of Health and Human Resources or his designee; representatives from the Compensation Board, the Virginia Crime Commission, the Virginia Joint Legislative Audit and Review Commission, the Virginia Court Clerk's Association, the Virginia Association of Commonwealth's Attorneys, staff from the House Appropriations and the Senate Finance and Appropriations Committees, and the Virginia Probation and Parole Association; and a minimum of two criminal justice reform organizations working on fees and other financial assessments imposed in criminal prosecutions in Virginia; on several topics, including current collection practices, use of funds received as a result of such collections, and the burden of a fee assessment on indigent individuals. The bill requires the work group to submit an executive summary and report of its findings and recommendations to the Governor and the General Assembly by November 1, 2026, and a final report by November 1, 2027.

Discovery; methods of delivery. Requires the Commonwealth, upon request by the accused or his counsel, to copy or photograph any discovery materials or evidence the accused is permitted to inspect and review, including relevant police reports, criminal records, dashboard camera footage, and body-worn camera footage, and requires the Commonwealth to provide copies to the accused or his counsel, subject to the redaction, restricted dissemination, and protective order provisions of the relevant Rules of the Supreme Court of Virginia and unless such material is prohibited from being distributed by law.The bill requires the attorney for the Commonwealth in any district court to provide to counsel of record for the accused, if requested, a copy of any relevant police report at least 10 days prior to the date the case is set for trial or preliminary hearing, and such report is subject to limitations on dissemination. The bill further provides that if such materials are provided to counsel of record for the accused in district court for a preliminary hearing, the circuit court shall order such counsel to provide discovery to the attorney for the Commonwealth subject to the relevant Rules of the Supreme Court of Virginia prior to trial in circuit court. Lastly, the bill provides that if at any time during the course of the proceedings it is brought to the attention of the court that the attorney for the Commonwealth has failed to comply with such provisions, the court may order the Commonwealth to permit discovery or inspection, grant a continuance, or prohibit the Commonwealth from introducing evidence not disclosed, or the court may enter such other order as it deems just under the circumstances.