RichmondLiberty.org

file GA08-02-19
General Assembly, Tuesday February 19th, 2008

7:30 a.m. Senate Courts of Justice Criminal Subcommittee. A number of bills that we've dealt with in the House are being considered here for recommendations to the full Committee.

HB34, Ingram, SUBSTITUTE. Aggravated sexual battery; person over 18 guilty of felony with child under 13.

This is the "French kissing" bill, developing from a case where the sixty-something-year-old husband of a child care provider was caught by the mother of a ten-year-old child French-kissing the child. The adult was charged with contributing to the delinquency of a minor, got no jail time and a small fine, was not required to register as a sex offender and also was not prohibited from continuing to work caring for other children.

The bill would include this specific offense as the felony of "aggravated sexual battery".

The girl's mother, "Mrs. X", testified: tough story to hear, and to tell.

Bill raises serious policy questions, which are subject to prolonged discussion in subcommittee and counsel. Agreement that there should be a harsher law to cover such acts, but vast reluctance to make this quite this serious an offense.

Subcommittee decision is to attempt to accomplish the ends of the bill in a different way, and have that ready for next meeting of full Committee.

Pending that new version, subcommittee makes no recommendation.

HB436, Miller J, Arrest or summons; charge for misdemeanor at discretion of law-enforcement officer.

This is the bill to allow an officer to physically arrest, and search, people who commit misdemeanors, instead of merely issuing a summons as is generally required under current law. Some proponents admit that they want this change so they can search people for any contraband, even though there's no relationship with any offense they may have committed. Opponents say there's already quite enough discretion provided for the officer, and only limited protection of our rights to privacy.

The "Moore" case, now before the Supreme Court, depends on use of evidence seized in arrest rather than summons. Moore was stopped, and rather than issuing a summons as the law requires, the officers arrested him, took him to his hotel room, and searched his person and his room. They discovered contraband, and used that to bring additional charges against him. In court, they admitted that they had not had any of the allowable reasons for arresting rather than issuing a summons for the original offense; they just arbitrarily decided to do so. The court ruled that they should not have arrested him, and that therefore the evidence found by the search incident to that arrest could not be used against him.

Patron explains that bill will "clear up" the summons statute, which "everyone" thought had meant that an officer could choose to arrest in spite of the fact that the statute says that he "shall" issue a summons in most cases.

Speaking for the bill:
Com. Atty. Assn. favors bill, ditto Homicide Detectives Assn.
First four cases were trespassers in public housing projects, searches found drugs, one found gun.

Delegate Stolle opposes the bill; points out that law was clear when he taught Virginia Beach police search-and-seizure law back in the seventies, and for all the years that he served on their force. "Just because some police officers have been doing it wrong doesn't justify changing State law."

Lynchburg PD representative favors law. Points out other sections of Code that specifically authorize "arrest".

Just after 9am, committee recesses until 9:45am to allow members to attend a critical meeting of the Finance Committee.
Stolle announces that he intends to move to refer the bill to the Crime Commission, to allow it to be worked on throughout the year and be ready for reintroduction in the next session.

Subcommittee reconvenes, 9:50 am.

Retail Merchant favors change; wants to be able to arrest/search shoplifters who have been barred from entering premises.

Prosecutor favors for same reason, and other trespassing situations. 45 other states have this power. (No info on how this is handled in 5 other states.)

Fraternal Order of Police favors bill. Admits that there are bad police out there, but we need to trust until some reason not to.

State Police Assn. in favor; bad police officers don't need this bill, good ones do.

Sheriff's Assn. supports. (Last year, no agreement among sheriffs across the state.)

Hope Amezquita from ACLU opposes; 4th amendment freedom from random searches, and increased opportunity for profiling and other selective enforcement.

Mike Stollenwerk from Fairfax County Privacy Council opposes: privacy rights. Has AG's opinion from years back, clarifying the statute (and thus refuting claims that "everyone" misunderstood it).

Christina Rebeil from Immigrant Peoples Coalition opposes: increased opportunity for selective application, profiling.

Mark Hjelm, private citizen, opposes: points out added costs of processing more people at lockups and jails.

Jim Kadison of Virginia Citizens' Defense League opposes: abuse potential, cites illegal enforcement actions in Norfolk and elsewhere.

D.J. Geigler of the Indigent Defense Commission opposes: enough exemptions, statute quite clear.

Ben Greenberg of the Virginia Organizing Project opposes: profiling, cost, lack of guidance.

Claire Guthrie Gastanaga of the Va. Coalition of Latino Organizations opposes: profiling, unlimited discretion for officers.

I spoke, as well. Unlike anyone else in the room, I was present when the statute was enacted, and was able to testify to the intent. It was quite clear that the Assembly meant that officers SHALL issue summonses, unless one of the exceptions applies.

Stolle responds to query about previous request for Crime Commission study. No report because they were convinced not worth it.

He asks AG's representative about differing standards for "likely to disregard". Discussion among lawyers about court interpretations of existing lanuage.

Chairman Saslaw moves change new "may" back to "shall". Carried.

Patron makes last argument for bill: previous practices by polce who misinterpreted existing law have not shown any of problems suggested by opponents. (Several people roll their eyes.)

Stolle reiterates should be no confusion. Explains the exceptions where, under present law, police officer is allowed to arrest:
If the subject refuses to sign the summons and promise to obey it;
If he refuses to discontinue the unlawful conduct;
If the officer believes that the person will disregard the summons;
If the person is "reasonably believed" to be likely to harm himself;
If the person is "reasonably believed" to be likely to harm anyone else.

Committee Counsel Steve Benjamin explains basic misconception about effect of "Moore" decision. Even if officer arrests, rather than issues summons, this has no effect on validity of original charges. The only thing that is affected is whether or not any evidence found in a search pursuant to that arrest would be admissible in court.

Hurt moves to report. Explains that we need to make law clear. Remedy for abuse of police power is to sue officer and/or government employing officer.

Stolle opposes on grounds of expansion of police powers, allows practically unfettered discretion.

Benjamin explains unliklihood of suits against police for any than the most egregious abuses with unimpeachable wittnesses. Attorneys won't take anything less than a slam-dunk, because almost impossible to win.

Vote finally comes at 10:40 am. Split vote: 3-3-1 (one abstention). There will be no recommendation either way.

Stolle asks bill not be on tomorrow's docket, to allow more time to work on it.

HB622, Brink, Sexual offender; prohibited from residing in or near public park in proximity to children.

Bans those on registry from living in or within 500 feet of a public park which is next to a school.

Amended to refer to parks which "share a property line" with schools.

Problems exist in bill where it affects people already living in such places, and with the fact that it would apply to such "public parks" as Jeffferson National Forest, which is vast. Also, as we tighten restrictions each year, there are fewer and fewer places where offenders are allowed to live, which not only causes practical problems but moves closer to point where restrictions amount to banishment, which is clearly unconstitutional and would get all restrictions struck down.

The bill needs more work. Subcommittee makes no recommendation.

SB1442, Iaquinto: SUBSTITUTES. Ignition interlock; required implementation after first DUI conviction.
This would require use of an ignition interlock device on all cars at the home of a person convicted a second time of DUI. The interlock device would not let the car be driven without the driver (or someone else) blowing alcohol-free air through a sensor. It would also periodically demand another test while car is being used. Patron explains that there's a high degree of recidivism among DUI offenders, and that the states that have implemented this change have lowered that rate.
Discussion on public policy impact, costs to Commonwealth, costs to defendants (which are high).
Representatives of Mad Mothers speaks, as does representative of company renting these devices to thousands of drivers.
Discussion of costs, need for bill, actual benefits vs. apparent ones.
Bill is recommended after amendments.

Minutes before the noon convening of the House, subcommittee rose. Balance of bills on the docket will have to wait.

AMONG THOSE NOT HEARD TODAY:
HB159, Albo, SUBSTITUTE. Stolen property; person guilty of larceny if knowledge of property buying or given is stolen.

HB567, Crockett-Stark, Sexual offenses; those convicted prohibited entry onto school property.

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9:30 a.m. House Health, Welfare and Institutions; House Room D, General Assembly Building

I could not attend this meeting because of conflict with the earlier and ongoing subcommittee meeting. Among the bills they heard were these two.

SB405, Puckett, Controlled substances; nonresident pharmacies; penalties.

Reported from Committee and referred to Appropriations. Last available cost estimate is over $606,000.

SB429, Lucas, Opiate addiction treatment providers; daily service fee.

Continued until 2009 by Committee; dead for this session.

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Next significant meetings are Wednesday:

House and Senate convene at noon.

2:00 p.m. Senate Courts of Justice; Senate Room A, General Assembly Building

1/2 hr after House adjourns House Courts of Justice - Mental Health Subcommittee; House Room C, General Assembly Building

ONE hr after House adjourns House Courts of Justice - Criminal Subcommittee; House Room C, General Assembly Building

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DETAILS:
To see the summary, text, status, estimated cost, votes, or other details on any bill, go to:
http://leg1.state.va.us/. Click on:
“Bills & Resolutions – status of individual bills and related information”.
At the text-entry block, enter the bill and type just as I have it listed above. (Use “SB921”, not “S.B. 921”, for example.)

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REMINDER:
http://leg1.state.va.us/ and http://legis.state.va.us/
These are the two websites where you can access nearly anything you want to know about practically anything related to the General Assembly. Use them!