Virginia Poised to Raise the Felony Theft Threshold.

Virginia is poised to raise the felony theft threshold from $200 to $500 according to Governor Ralph Northam and House of Delegates Speaker Kirk Cox.  Despite repeated attempts by Democrats, this will be the first increase to the archaic threshold since 1980.

As we previously posted, the Senate had passed legislation reforming the felony theft threshold last month; however, concern remained whether the House would do the same.  Ultimately, a compromise was reached with Governor Northam stating, “Both sides have gotten something we fought for.”  Increasing the felony theft threshold comes with agreement to support Republican-backed victim restitution legislation.

Senate Bill 608 Prohibiting Waiver of Right to Petition for Expungement Provisions in Plea Agreements Passes Virginia Senate.

Senate Bill 608 proposed by Senator Scott Surovell provides that any provision in any plea agreement that purports to waive, release, or extinguish the right of a person to file a petition requesting the expungement of police and court records shall be void and unenforceable as against public policy.  SB 608 passed the Senate on February 1, 2018,and the breakdown of the 29-11 vote is as follows:

YEAS–Barker, Carrico, Chafin, Chase, Dance, Dunnavant, Ebbin, Edwards, Favola, Hanger, Howell, Lewis, Locke, Lucas, Marsden, Mason, McClellan, McDougle, McPike, Obenshain, Petersen, Saslaw, Spruill, Stanley, Sturtevant, Suetterlein, Surovell, Vogel, Wexton

NAYS–Black, Cosgrove, Deeds, DeSteph, Newman, Norment, Peake, Reeves, Ruff, Stuart, Wagner

Senate Bill 111 to Decriminalize Simple Possession of Marijuana Defeated in Courts of Justice Committee.

On January 29, 2018, the Virginia Senate’s Courts of Justice Committee voted against SB111, sponsored by Adam Ebbin, which would decriminalize simple marijuana possession and provide a civil penalty of no more than $50 for a first violation, $100 for a second violation, and $250 for a third or subsequent violation.

The 9-6 vote breakdowns as follows:

YEAS:  Saslaw (D), Howell (D), Lucas (D), Edwards (D), Deeds (D), Petersen (D)

NAYS:  Obenshain (R), Norment (R), McDougle (R), Stuart (R), Stanley (R), Reeves (R), Chafin (R), Sturtevant (R), Peake (R)

House Bill 1063 to Decriminalize Possession of One-Half Ounce or Less of Marijuana Fails in Virginia.

HB 1063, sponsored by Delegate Steve Heretick, sought to decriminalize possession of no more than one-half ounce of marijuana and provide a civil penalty of no more than $250 for a first violation and $1,000 for a second or subsequent violation.  The Bill has failed to advance from Subcommittee #1 of the Committee for the Courts of Justice.  The members of the Subcommittee are:  Chairman C. Todd Gilbert (R-15th District), Robert B. Bell (R-58th District), Benjamin Cline (R-24th District), Les Adams (R-16th District), Christopher Collins (R-29th District), Vivian Watts (D-39th District), Charniele Herring (D-46th District), and Michael Mullin (D-93rd District).  The lone vote to advance the Bill was cast by Delegate Herring.


Fairfax County Terminates Detention Agreement With ICE.

On January 22, 2018, Sheriff Kincaid notified Immigration and Customs Enforcement (ICE) that the Fairfax County Sheriff’s Office will no longer hold inmates past their release date unless an ICE administrative request to detain the inmate is accompanied by a criminal detainer issued by a court.  Sheriff Kincaid conveyed her decision to terminate the County-ICE Intergovernmental Service Agreement effective May 23, 2018.

Sheriff’s Offices throughout the Commonwealth are statutorily required to determine the residency status of individuals who are brought to jail.  Fingerprints, which are taken during the booking process, are transmitted to a state database that can be accessed by all local, state and national law enforcement agencies.

The press release can be found at:

Reforming the Felony Theft Threshold in Virginia.

A groundswell of support was seen in 2017 to raise the the felony theft threshold in Virginia from $200. Indeed, Governor Northamhas vowed to make it one of his legislative priorities, Lt. Governor Fairfax has stated that we should “not making felons out of so many people” under this archaic threshold, and Senator Saslaw (D-Fairfax), who has called the felony theft bar “unethical”, recently said, “No Virginian should be marked as a felon for stealing a pair of sunglasses.”

On January 18, the Senate voted to raise the felony theft threshold from $200 to $500. The fate of Senate Bill 105 remains to be seen; however, as the House has consistently blocked such efforts in the past.

Further Efforts to Reform First-Time Simple Possession of Marijuana Policy in Virginia.

Senate Majority Leader Thomas K. “Tommy” Norment Jr. (R-James City County) is expected to propose a bill this session that aims to further reform simple possession marijuana policy for first-time offenders. Current law provides for “deferred dispositions” for first-time offenders, which includes dismissal of the charge after the defendant complies with certain court-ordered conditions. Unfortunately, despite the dismissal, the record of the arrest can still be found on a criminal history database (i.e., the defendant’s record is not “clean” after the dismissal). Norment seeks to amend current law by allowing the record of the arrest for possession of marijuana to be removed from the national criminal database upon a defendant’s compliance with court-ordered conditions. Norment’s proposal, however, falls short of decriminalization and if fails to address concerns regarding enforcement of marijuana laws in the Commonwealth.

Implications of the GOP Tax Plan on Spousal Support.

The GOP tax plan has been passed by Congress and presented to the President for signature. Certainly, if the tax bill becomes law, the impact will be felt by nearly all Americans.  One change impacting divorcing couples is the elimination of the 75-year old provision allowing for the deduction of spousal support (alimony).

Currently, spousal support is deductible to the payor spouse and is included as income to the recipient spouse (payee). Under the GOP tax plan, spousal support will no longer deductible by the payor spouse. Further, the payments will not be included in the payee spouse’s gross income; rather, the money used for spousal support will be taxed at the payor spouse’s tax rates.

If this plan becomes law, the provision eliminating the deduction for spousal support payments will be effective for divorce and separation agreements signed after Dec. 31, 2018.

Virginia Court of Appeals: Foster Parents are Persons with Legitimate Interest in Seeking Custody.

The case is Yokshas v. Bristol City Department of Social Services (2017).

In Virginia, a “person with a legitimate interest” may pursue custody of a child, and Section 20-124.1 of the Code of Virginia requires Courts to broadly interpret this term to accommodate the best interests of the child.  The Section specifically includes and excludes persons when defining the term; however, it is silent as to whether foster parents fall within such category of persons with interest.  In an unpublished opinion authored by Judge Teresa B. Chafin, the Court of Appeals reversed the Circuit Court’s ruling excluding the foster parents, citing to the statutory mandate that the term “persons with legitimate interest” must be broadly construed.



Section 18.2-251 of the Code of Virginia was revised as it pertained to the mandatory suspension of driving privileges for an adult convicted of a first offense possession of marijuana. Previously, the law required a six-month loss of driving privileges for a person placed on deferred disposition for an offense of simple possession of marijuana. The law has been revised to provide that the court has the discretion to suspend or revoke the driver’s license of a person placed on deferred disposition for simple possession of marijuana but must suspend or revoke for six months the driver’s license of such person who was operating a motor vehicle at the time of the offense. Juveniles, however, remain subject to license suspension.