                                 CODE OF VIRGINIA

PROBABLE CAUSE HEARING; PROCEDURES (§ 37.2-906)

A. Upon the filing of a petition alleging that the respondent is a sexually
violent predator, the circuit court shall (i) forthwith order that until a final
order is entered in the proceeding, in the case of a prisoner, he remain in the
secure custody of the Department of Corrections or, in the case of a defendant,
he remain in the secure custody of the Department and (ii) schedule a hearing
within 90 days to determine whether probable cause exists to believe that the
respondent is a sexually violent predator. The respondent may waive his right to
a hearing under this section. A continuance extending the case beyond the 90
days may be granted to either the Attorney General or the respondent upon good
cause shown or by agreement of the parties. The clerk shall mail a copy of the
petition to the attorney appointed or retained for the respondent and to the
person in charge of the facility in which the respondent is then confined. The
person in charge of the facility shall cause the petition to be delivered to the
respondent and shall certify the delivery to the clerk. In addition, a written
explanation of the sexually violent predator involuntary commitment process and
the statutory protections associated with the process shall be given to the
respondent at the time the petition is delivered.

B. Any hearing or proceeding under this section may be conducted using a two-way
electronic video and audio communication system to provide for the appearance of
any parties and witnesses. Any two-way electronic video and audio communication
system shall meet the standards set forth in subsection B of &#xA7; 19.2-3.1.

C. Prior to any hearing under this section, the judge shall ascertain if the
respondent is represented by counsel and, if he is not represented by counsel,
the judge shall appoint an attorney to represent him. However, if the respondent
requests an opportunity to employ counsel, the court shall give him a reasonable
opportunity to employ counsel at his own expense.

D. A respondent who has refused to cooperate with a mental health examination
required pursuant to &#xA7; 37.2-904 may, within 21 days of the retention of
counsel or appointment of counsel, rescind his refusal and elect to cooperate
with the mental health examination. Counsel for the respondent shall provide
written notice of the respondent&#8217;s election to cooperate with the mental
health examination to the court and the attorney for the Commonwealth within 30
days of the retention or appointment of counsel, and the probable cause hearing
shall be stayed until 30 days after receipt of the mental health
examiner&#8217;s report. The mental health examination shall be conducted in
accordance with subsection B of &#xA7; 37.2-904. Results of the evaluation shall
be filed with the court and copies of the results shall be provided to counsel
for the parties. The mental health examiner&#8217;s itemized account of
expenses, duly sworn to, shall be presented to the court and, when allowed,
shall be certified to the Supreme Court for payment out of the state treasury
and shall be charged against the appropriations made to pay criminal charges.
			In the event that a respondent refuses to cooperate with the mental health
examination required by &#xA7; 37.2-904 or fails or refuses to cooperate with
the mental health examination following rescission of his refusal pursuant to
this subsection, the court shall admit evidence of such failure or refusal and
shall bar the respondent from introducing his own expert psychiatric and
psychological evidence.

E. At the probable cause hearing, the judge shall (i) verify the
respondent&#8217;s identity and (ii) determine whether probable cause exists to
believe that he is a sexually violent predator. The existence of any prior
convictions or charges may be shown with affidavits or documentary evidence. The
details underlying the commission of an offense or behavior that led to a prior
conviction or charge may be shown by affidavits or documentary evidence,
including but not limited to, hearing and/or trial transcripts, probation and
parole and sentencing reports, police and sheriffs&#8217; reports, and mental
health evaluations. If he meets the qualifications set forth in subsection B of
&#xA7; 37.2-904, the expert witness may be permitted to testify at the probable
cause hearing as to his diagnosis, his opinion as to whether the respondent
meets the definition of a sexually violent predator, his recommendations as to
treatment, and the basis for his opinions. Such opinions shall not be
dispositive of whether the respondent is a sexually violent predator.

F. In the case of a prisoner in the custody of the Department of Corrections, if
the judge finds that there is not probable cause to believe that the respondent
is a sexually violent predator, the judge shall dismiss the petition, and the
respondent shall remain in the custody of the Department of Corrections until
his scheduled date of release from prison. In the case of a defendant, if the
judge finds that there is not probable cause to believe the respondent is a
sexually violent predator, the judge shall dismiss the petition and order that
the respondent be discharged, involuntarily admitted pursuant to &#xA7;&#xA7;
37.2-814 through 37.2-819, or certified for admission pursuant to &#xA7;
37.2-806.

HISTORY: 1999, cc. 946, 985, § 37.1-70.7; 2001, c. 776; 2004, c. 764; 2005, c.
716; 2006, cc. 863, 914; 2007, c. 876; 2009, c. 740; 2011, cc. 446, 448; 2012,
cc. 121, 246.