Bill Text: VA HB2417 | 2019 | Regular Session | Prefiled
Bill Title: Emergency protective order; required conditions, petition to dissolve or modify.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Engrossed - Dead) 2019-02-13 - Passed by indefinitely in Courts of Justice with letter (12-Y 3-N) [HB2417 Detail]
Download: Virginia-2019-HB2417-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §§16.1-253.4 and 19.2-152.8 of the Code of Virginia are amended and reenacted as follows:
§16.1-253.4. Emergency protective orders authorized in certain cases; penalty.
A. 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.
B. When a law-enforcement officer or an allegedly abused
person asserts under oath to a judge or magistrate, and on that assertion or
other evidence the judge or magistrate (i) finds that a warrant for a violation
of §18.2-57.2 has been issued or issues a warrant for violation of §18.2-57.2
and finds that there is probable danger of further acts of family abuse against
a family or household member by the respondent or (ii) finds that reasonable
grounds exist to believe that the respondent has committed family abuse and there
is probable danger of a further such offense against a family or household
member by the respondent, the judge or magistrate shall issue an ex parte
emergency protective order, except if the respondent is a minor, an emergency
protective order shall not be required,
imposing one or more of the following
conditions on the respondent:
1. Prohibiting. As conditions of such
emergency protective order, the judge or
magistrate shall prohibit (a) acts of
family abuse or criminal offenses by the respondent
that result in injury to person or property;
2. Prohibiting and (b) such
contacts by the respondent with the allegedly abused person or family or
household members of the allegedly abused person, including prohibiting the
respondent from being in the physical presence of the allegedly abused person
or family or household members of the allegedly abused person, as the judge or
magistrate deems necessary to protect the safety of such persons;
3. Granting. The judge or magistrate, as additional
conditions of such emergency
protective order, may grant (1)
the family or household member possession of the premises occupied by the
parties to the exclusion of the respondent;, however,
no such grant of possession shall affect title to any real or personal property;,
and
4. Granting (2) 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.
When the judge or magistrate considers the issuance of an emergency protective order pursuant to clause (i), he shall presume that there is probable danger of further acts of family abuse against a family or household member by the respondent unless the presumption is rebutted by the allegedly abused person.
C. 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 juvenile and domestic relations district court is in session. When issuing an emergency protective order under this section, the judge or magistrate shall provide the protected person or the law-enforcement officer seeking the emergency protective order with the form for use in filing petitions pursuant to §16.1-253.1 and written information regarding protective orders that shall include the telephone numbers of domestic violence agencies and legal referral sources on a form prepared by the Supreme Court. If these forms are provided to a law-enforcement officer, the officer may provide these forms to the protected person when giving the emergency protective order to the protected person. The respondent or petitioner may at any time file a motion with the court requesting a hearing to dissolve or modify the order issued hereunder, including removal or modification of the conditions imposed pursuant to subsection B. The hearing on the motion shall be given precedence on the docket of the court.
D. 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 §16.1-253.1 or 16.1-279.1, 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 allegedly abused person.
E. 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 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 respondent. 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. One copy of the order shall be given to the allegedly abused person when it is issued, and one copy shall be filed with the written report required by subsection D of §19.2-81.3. 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 juvenile and domestic relations 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 allegedly abused person with information regarding the date and time of service.
F. The availability of an emergency protective order shall not be affected by the fact that the family or household member left the premises to avoid the danger of family abuse by the respondent.
G. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
H. 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 who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the 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.
I. 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.
J. 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.
K. No fee shall be charged for filing or serving any petition or order pursuant to this section.
L. Except as provided in §16.1-253.2, a violation of a protective order issued under this section shall constitute contempt of court.
M. Upon issuance of an emergency protective order, the clerk of 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.
§19.2-152.8. Emergency protective orders authorized.
A. 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.
B. 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. As conditions of such
emergency protective order, the judge or magistrate shall prohibit (a)
acts of violence, force, or threat or criminal offenses by
the respondent resulting in injury to person or property;
2. Prohibiting and (b) 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. The judge or magistrate may impose such
other conditions as the judge or magistrate deems necessary to prevent (i) (1)
acts of violence, force, or threat, (ii) (2) criminal offenses
resulting in injury to person or property, or (iii) (3) communication or other
contact of any kind by the respondent;,
and
4. Granting may grant 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.
C. 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 or petitioner may at any time file a motion with the court requesting a hearing to dissolve or modify the order, including removal or modification of any of the conditions imposed pursuant to subsection B. The hearing on the motion shall be given precedence on the docket of the court.
D. 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.
E. 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.
F. The issuance of an emergency protective order shall not be considered evidence of any wrongdoing by the respondent.
G. 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.
H. 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.
I. 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.
J. No fee shall be charged for filing or serving any petition pursuant to this section.
K. 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.
L. 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.
