                                 CODE OF VIRGINIA

LIMITATION ON SENTENCE UPON REVOCATION OF SUSPENSION OF SENTENCE; EXCEPTIONS (§
19.2-306.1)

A. For the purposes of this section, &#8220;technical violation&#8221; means a
violation based on the probationer&#8217;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.

HISTORY: 2021, Sp. Sess. I, c. 538.