                                 CODE OF VIRGINIA

TRIAL IN CIRCUIT COURT; PRELIMINARY HEARING; DIRECT INDICTMENT; REMAND (§
16.1-269.1)

A. Except as provided in subsections B and C, if a juvenile 14 years of age or
older at the time of an alleged offense is charged with an offense which would
be a felony if committed by an adult, the court shall, on motion of the attorney
for the Commonwealth and prior to a hearing on the merits, hold a transfer
hearing and may retain jurisdiction or transfer such juvenile for proper
criminal proceedings to the appropriate circuit court having criminal
jurisdiction of such offenses if committed by an adult. Any transfer to the
appropriate circuit court shall be subject to the following conditions:

   1. Notice as prescribed in &#xA7;&#xA7; 16.1-263 and 16.1-264 shall be given
   to the juvenile and his parent, guardian, legal custodian or other person
   standing in loco parentis; or attorney;

   2. The juvenile court finds that probable cause exists to believe that the
   juvenile committed the delinquent act as alleged or a lesser included
   delinquent act which would be a felony if committed by an adult;

   3. The juvenile is competent to stand trial. The juvenile is presumed to be
   competent and the burden is on the party alleging the juvenile is not
   competent to rebut the presumption by a preponderance of the evidence; and

   4. The court finds by a preponderance of the evidence that the juvenile is not
   a proper person to remain within the jurisdiction of the juvenile court. In
   determining whether a juvenile is a proper person to remain within the
   jurisdiction of the juvenile court, the court shall consider, but not be
   limited to, the following factors:
   				a. The juvenile&#8217;s age;
   				b. The seriousness and number of alleged offenses, including (i) whether
   the alleged offense was committed in an aggressive, violent, premeditated, or
   willful manner; (ii) whether the alleged offense was against persons or
   property, with greater weight being given to offenses against persons,
   especially if death or bodily injury resulted; (iii) whether the maximum
   punishment for such an offense is greater than 20 years confinement if
   committed by an adult; (iv) whether the alleged offense involved the use of a
   firearm or other dangerous weapon by brandishing, threatening, displaying or
   otherwise employing such weapon; and (v) the nature of the juvenile&#8217;s
   participation in the alleged offense;
   				c. Whether the juvenile can be retained in the juvenile justice system
   long enough for effective treatment and rehabilitation;
   				d. The appropriateness and availability of the services and dispositional
   alternatives in both the criminal justice and juvenile justice systems for
   dealing with the juvenile&#8217;s problems;
   				e. The record and previous history of the juvenile in this or other
   jurisdictions, including (i) the number and nature of previous contacts with
   juvenile or circuit courts, (ii) the number and nature of prior periods of
   probation, (iii) the number and nature of prior commitments to juvenile
   correctional centers, (iv) the number and nature of previous residential and
   community-based treatments, (v) whether previous adjudications and commitments
   were for delinquent acts that involved the infliction of serious bodily
   injury, and (vi) whether the alleged offense is part of a repetitive pattern
   of similar adjudicated offenses;
   				f. Whether the juvenile has previously absconded from the legal custody of
   a juvenile correctional entity in this or any other jurisdiction;
   				g. The extent, if any, of the juvenile&#8217;s degree of intellectual
   disability or mental illness;
   				h. The juvenile&#8217;s school record and education;
   				i. The juvenile&#8217;s mental and emotional maturity;
   				j. The juvenile&#8217;s physical condition and physical maturity; and
   				k. Any evidence that the juvenile was a victim of felonious criminal
   sexual assault in violation of Article 7 (&#xA7; 18.2-61 et seq.) of Chapter 4
   of Title 18.2 or trafficking in violation of Article 3 (&#xA7; 18.2-344 et
   seq.) of Chapter 8 of Title 18.2 by the alleged victim prior to or during the
   commission of the alleged offense and that such alleged offense was a direct
   result of the juvenile being a victim of such felonious criminal sexual
   assault or trafficking. This subdivision shall be construed to prioritize the
   successful treatment and rehabilitation of juvenile victims of human
   trafficking and sex crimes who commit acts of violence against their abusers.
   It is the intent of the General Assembly that these juveniles be viewed as
   victims and provided treatment and services in the juvenile system.
   				No transfer decision shall be precluded or reversed on the grounds that
   the court failed to consider any of the factors specified in subdivision 4.

B. The juvenile court shall conduct a preliminary hearing whenever a juvenile 16
years of age or older is charged with murder in violation of &#xA7; 18.2-31,
18.2-32 or 18.2-40, or aggravated malicious wounding in violation of &#xA7;
18.2-51.2. If the juvenile is 14 years of age or older, but less than 16 years
of age, then the court may proceed, on motion of the attorney for the
Commonwealth, as provided in subsection A. Upon motion of the juvenile, the
court may conduct a hearing to allow the juvenile to present any evidence
described in subdivision A 4 k. If the court finds by a preponderance of the
evidence that sufficient evidence exists to believe that the juvenile was a
victim of felonious criminal sexual assault in violation of Article 7 (&#xA7;
18.2-61 et seq.) of Chapter 4 of Title 18.2 or trafficking in violation of
Article 3 (&#xA7; 18.2-344 et seq.) of Chapter 8 of Title 18.2 by the alleged
victim prior to or during the commission of the alleged offense and that such
alleged offense was a direct result of the juvenile being a victim of such
felonious criminal sexual assault or trafficking, then the court shall proceed
as provided in subsection A.

C. The juvenile court shall conduct a preliminary hearing whenever a juvenile 16
years of age or older is charged with murder in violation of &#xA7; 18.2-33;
felonious injury by mob in violation of &#xA7; 18.2-41; abduction in violation
of &#xA7; 18.2-48; malicious wounding in violation of &#xA7; 18.2-51; malicious
wounding of a law-enforcement officer in violation of &#xA7; 18.2-51.1;
felonious poisoning in violation of &#xA7; 18.2-54.1; adulteration of products
in violation of &#xA7; 18.2-54.2; robbery in violation of subdivision B 1 or 2
of &#xA7; 18.2-58 or carjacking in violation of &#xA7; 18.2-58.1; rape in
violation of &#xA7; 18.2-61; forcible sodomy in violation of &#xA7; 18.2-67.1;
object sexual penetration in violation of &#xA7; 18.2-67.2; manufacturing,
selling, giving, distributing, or possessing with intent to manufacture, sell,
give, or distribute a controlled substance or an imitation controlled substance
in violation of &#xA7; 18.2-248 if the juvenile has been previously adjudicated
delinquent on two or more occasions of violating &#xA7; 18.2-248 provided the
adjudications occurred after the juvenile was at least 16 years of age;
manufacturing, selling, giving, distributing, or possessing with intent to
manufacture, sell, give, or distribute methamphetamine in violation of &#xA7;
18.2-248.03 if the juvenile has been previously adjudicated delinquent on two or
more occasions of violating &#xA7; 18.2-248.03 provided the adjudications
occurred after the juvenile was at least 16 years of age; or felonious
manufacturing, selling, giving, distributing, or possessing with intent to
manufacture, sell, give, or distribute anabolic steroids in violation of &#xA7;
18.2-248.5 if the juvenile has been previously adjudicated delinquent on two or
more occasions of violating &#xA7; 18.2-248.5 provided the adjudications
occurred after the juvenile was at least 16 years of age, provided the attorney
for the Commonwealth gives written notice of his intent to proceed pursuant to
this subsection. Prior to giving written notice of his intent to proceed
pursuant to this subsection, the attorney for the Commonwealth shall submit a
written request to the director of the court services unit to complete a report
as described in subsection B of &#xA7; 16.1-269.2 unless waived by the juvenile
and his attorney or other legal representative. The report shall be filed with
the court and mailed or delivered to (i) the attorney for the Commonwealth and
(ii) counsel for the juvenile, or, if the juvenile is not represented by
counsel, to the juvenile and a parent, guardian, or other person standing in
loco parentis with respect to the juvenile, within 21 days of the date of the
written request. After reviewing the report, if the attorney for the
Commonwealth still intends to proceed pursuant to this subsection, he shall then
provide the written notice of such intent, which shall include affirmation that
he reviewed the report. The notice shall be filed with the court and mailed or
delivered to counsel for the juvenile or, if the juvenile is not then
represented by counsel, to the juvenile and a parent, guardian or other person
standing in loco parentis with respect to the juvenile at least seven days prior
to the preliminary hearing. If the attorney for the Commonwealth elects not to
give such notice, if he elects to withdraw the notice prior to certification of
the charge to the grand jury, or if the juvenile is 14 years of age or older,
but less than 16 years of age, he may proceed as provided in subsection A. Upon
motion of the juvenile, the court may conduct a hearing to allow the juvenile to
present any evidence described in subdivision A 4 k. If the court finds by a
preponderance of the evidence that sufficient evidence exists to believe that
the juvenile was a victim of felonious criminal sexual assault in violation of
Article 7 (&#xA7; 18.2-61 et seq.) of Chapter 4 of Title 18.2 or trafficking in
violation of Article 3 (&#xA7; 18.2-344 et seq.) of Chapter 8 of Title 18.2 by
the alleged victim prior to or during the commission of the alleged offense and
that such alleged offense was a direct result of the juvenile being a victim of
such felonious criminal sexual assault or trafficking, then the court shall
proceed as provided in subsection A.

D. Upon a finding of probable cause pursuant to a preliminary hearing under
subsection B or C, the juvenile court shall certify the charge, and all
ancillary charges, to the grand jury. Such certification shall divest the
juvenile court of jurisdiction as to the charge and any ancillary charges.
Nothing in this subsection shall divest the juvenile court of jurisdiction over
any matters unrelated to such charge and ancillary charges which may otherwise
be properly within the jurisdiction of the juvenile court.
			If the court does not find probable cause to believe that the juvenile has
committed the violent juvenile felony as charged in the petition or warrant or
if the petition or warrant is terminated by dismissal in the juvenile court, the
attorney for the Commonwealth may seek a direct indictment in the circuit court.
If the petition or warrant is terminated by nolle prosequi in the juvenile
court, the attorney for the Commonwealth may seek an indictment only after a
preliminary hearing in juvenile court.
			If the court finds that the juvenile was not (i) for the purposes of
subsection A, 14 years of age or older or (ii) for purposes of subsection B or
C, 16 years of age or older, at the time of the alleged commission of the
offense or that the conditions specified in subdivision A 1, 2, or 3 have not
been met, the case shall proceed as otherwise provided for by law.

E. An indictment in the circuit court cures any error or defect in any
proceeding held in the juvenile court except with respect to the
juvenile&#8217;s age. If an indictment is terminated by nolle prosequi, the
Commonwealth may reinstate the proceeding by seeking a subsequent indictment.

HISTORY: 1994, cc. 859, 949; 1996, cc. 755, 914; 1997, c. 862; 2012, cc. 476,
507, 772; 2020, cc. 987, 988; 2021, Sp. Sess. I, c. 534; 2024, c. 365.