HB1431: Special conservator of peace; authority to arrest.

Offered January 17, 2006
A BILL to amend and reenact § 19.2-82 of the Code of Virginia, relating to procedure upon arrest without warrant.
Patron-- Oder

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1.  That § 19.2-82 of the Code of Virginia is amended and reenacted as follows:

§ 19.2-82. Procedure upon arrest without warrant.

A. A person arrested without a warrant shall be brought forthwith before a magistrate or other issuing authority having jurisdiction who shall proceed to examine the officer making the arrest under oath. If the magistrate or other issuing authority having jurisdiction has lawful probable cause upon which to believe that a criminal offense has been committed, and that the person arrested has committed such offense, he shall issue either a warrant under the provisions of § 19.2-72 or a summons under the provisions of § 19.2-73.

As used in this section the term "brought before a magistrate or other issuing authority having jurisdiction" shall include a personal appearance before such authority or any two-way electronic video and audio communication meeting the requirements of § 19.2-3.1, in order that the accused and the arresting officer may simultaneously see and speak to such magistrate or authority. If electronic means are used, any documents filed may be transmitted in accordance with § 19.2-3.1. As used in this section, the term "officer making the arrest" may include an officer to whom custody of the arrested person is transferred when circumstances of the arrest require that custody be transferred to another officer for the purposes of appearance before a magistrate for a determination of probable cause. Under such circumstances, the officer receiving custody of the arrested person from the officer who made the actual arrest shall be fully informed of the circumstances of the arrest by the actual arresting officer and shall be subject to examination by the magistrate as if he were the actual arresting officer.

If a warrant is issued the case shall thereafter be disposed of under the provisions of §§ 19.2-183 through 19.2-190, if the issuing officer is a judge; under the provisions of §§ 19.2-119 through 19.2-134, if the issuing officer is a magistrate or other issuing officer having jurisdiction.

If such warrant or summons is not issued, the person so arrested shall be released.

B. A warrant may be issued pursuant to this section, where the person has been arrested in accordance with § 19.2-81.6, and the magistrate or other issuing authority examines the officer making the arrest under oath, and finds lawful probable cause to believe the arrested individual meets the conditions of clauses (i) and (ii) of § 19.2-81.6. If such warrant is issued, it shall recite § 19.2-81.6 and the applicable violation of federal criminal law previously confirmed with the Bureau of Immigration and Customs Enforcement. Upon the person being taken into federal custody, such state warrant shall be dismissed. Any warrant issued under this subsection shall expire within 72 hours, or when the person is taken into federal custody, whichever occurs first. Recurrent applications for a warrant under this subsection shall not be permitted within a six-month period.