§ 19.2-306.1. Limitation on sentence upon revocation of suspension of sentence; exceptions.
A. For the purposes of this section, "technical violation" means a violation based on the probationer's failure to (i) report any arrest, including traffic tickets, within three days to the probation officer; (ii) maintain regular employment or notify the probation officer of any changes in employment; (iii) report within three days of release from incarceration; (iv) permit the probation officer to visit his home and place of employment; (v) follow the instructions of the probation officer, be truthful and cooperative, and report as instructed; (vi) refrain from the use of alcoholic beverages to the extent that it disrupts or interferes with his employment or orderly conduct; (vii) refrain from the use, possession, or distribution of controlled substances or related paraphernalia; (viii) refrain from the use, ownership, possession, or transportation of a firearm; (ix) gain permission to change his residence or remain in the Commonwealth or other designated area without permission of the probation officer; or (x) maintain contact with the probation officer whereby his whereabouts are no longer known to the probation officer. Multiple technical violations arising from a single course of conduct or a single incident or considered at the same revocation hearing shall not be considered separate technical violations for the purposes of sentencing pursuant to this section.
B. If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, or has violated another condition other than (i) a technical violation or (ii) a good conduct violation that did not result in a criminal conviction, then the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.
C. The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumption against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. However, if the court finds, by a preponderance of the evidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a second technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shall be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.
D. The limitations on sentencing in this section shall not apply to the extent that an additional term of incarceration is necessary to allow a defendant to be evaluated for or to participate in a court-ordered drug, alcohol, or mental health treatment program. In such case, the court shall order the shortest term of incarceration possible to achieve the required evaluation or participation.
2021, Sp. Sess. I, c. 538.
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Now, let's delve into the key concepts outlined in § 19.2-306.1:
1. Technical Violation Definition (Subsection A):
- The term "technical violation" is defined as a probationer's failure to adhere to specific conditions, including reporting arrests promptly, maintaining employment, reporting release from incarceration, allowing probation officer visits, following instructions truthfully, refraining from alcohol or controlled substance abuse, adhering to firearm restrictions, gaining permission for residence changes, and maintaining contact with the probation officer.
2. Multiple Technical Violations (Subsection A):
- Multiple technical violations stemming from a single course of conduct or incident are not treated as separate violations during a revocation hearing for sentencing purposes.
3. Violation Basis for Revocation (Subsection B):
- The court can revoke suspension if the violation is based on a post-suspension criminal offense or a breach of a condition other than a technical violation or a good conduct violation without a criminal conviction.
4. Sentencing for Technical Violations (Subsection C):
- A first technical violation does not warrant active incarceration.
- There's a presumption against active incarceration for a second technical violation.
- The court may impose up to 14 days of active incarceration for a second technical violation if diversion isn't feasible.
- Subsequent technical violations may result in the imposition of the initially planned sentence.
5. Exception for Evaluation or Treatment (Subsection D):
- The limitations on sentencing do not apply if additional incarceration is necessary for a defendant to undergo court-ordered drug, alcohol, or mental health treatment.
- In such cases, the court should order the shortest term possible for the required evaluation or participation.
6. 2021 Legislative Amendment (Last Paragraph):
- The section references legislative changes introduced in 2021, specifically under Sp. Sess. I, c. 538.
This legal provision is designed to balance the need for accountability with a focus on rehabilitation, providing a framework for addressing technical violations and outlining specific circ*mstances for imposing or limiting incarceration.
