SB 684

            
2020 SESSION


CHAPTER 1175

An Act to amend and reenact �� 18.2-308.1:3 and 37.2-821 of
the Code of Virginia, relating to mental health as disqualifier for firearm
possession.

[S 684]

Approved April 11, 2020

 

Be it enacted by the General Assembly of Virginia:

1. That �� 18.2-308.1:3 and 37.2-821 of the Code of Virginia
are amended and reenacted as follows:

� 18.2-308.1:3. Purchase, possession, or transportation of
firearm by persons involuntarily admitted or ordered to outpatient treatment;
penalty.

A. It shall be unlawful for any person (i) involuntarily
admitted to a facility or ordered to mandatory outpatient treatment pursuant to
� 19.2-169.2, (ii) involuntarily admitted to a facility or ordered to mandatory
outpatient treatment as the result of a commitment hearing pursuant to Article
5 (� 37.2-814 et seq.) of Chapter 8 of Title 37.2, notwithstanding the
outcome of any appeal taken pursuant to � 37.2-821, (iii) involuntarily
admitted to a facility or ordered to mandatory outpatient treatment as a minor
14 years of age or older as the result of a commitment hearing pursuant to
Article 16 (� 16.1-335 et seq.) of Chapter 11 of Title 16.1, notwithstanding
the outcome of any appeal taken pursuant to � 16.1-345.6, (iv) who was the
subject of a temporary detention order pursuant to � 37.2-809 and subsequently
agreed to voluntary admission pursuant to � 37.2-805, or (v) who, as a
minor 14 years of age or older, was the subject of a temporary detention order
pursuant to � 16.1-340.1 and subsequently agreed to voluntary admission
pursuant to � 16.1-338 to purchase, possess, or transport a firearm. A
violation of this subsection shall be punishable as a Class 1 misdemeanor.

B. Any person prohibited from purchasing, possessing or
transporting firearms under this section may, at any time following his release
from involuntary admission to a facility, his release from an order of
mandatory outpatient treatment, or his release from voluntary admission
pursuant to � 37.2-805 following the issuance of a temporary detention order,
petition the general district court in the city or county in which he resides
or, if the person is not a resident of the Commonwealth, the general district
court of the city or county in which the most recent of the proceedings
described in subsection A occurred to restore his right to purchase, possess or
transport a firearm. A copy of the petition shall be mailed or delivered to the
attorney for the Commonwealth for the jurisdiction where the petition was filed
who shall be entitled to respond and represent the interests of the
Commonwealth. The court shall conduct a hearing if requested by either party.
If the court determines, after receiving and considering evidence concerning
the circumstances regarding the disabilities referred to in subsection A and
the persons criminal history, treatment record, and reputation as developed
through character witness statements, testimony, or other character evidence,
that the person will not likely act in a manner dangerous to public safety and
that granting the relief would not be contrary to the public interest, the
court shall grant the petition. Any person denied relief by the general
district court may petition the circuit court for a de novo review of the denial.
Upon a grant of relief in any court, the court shall enter a written order
granting the petition, in which event the provisions of subsection A do not
apply. The clerk of court shall certify and forward forthwith to the Central
Criminal Records Exchange, on a form provided by the Exchange, a copy of any
such order.

C. As used in this section, "treatment record" shall
include copies of health records detailing the petitioners psychiatric
history, which shall include the records pertaining to the commitment or
adjudication that is the subject of the request for relief pursuant to this
section.

� 37.2-821. Appeal of involuntary admission or certification
order.

A. Any person involuntarily admitted to an inpatient facility
or ordered to mandatory outpatient treatment pursuant to �� 37.2-814 through
37.2-819 or certified as eligible for admission pursuant to � 37.2-806 shall
have the right to appeal the order to the circuit court in the jurisdiction
where he was involuntarily admitted or ordered to mandatory outpatient
treatment or certified or where the facility to which he was admitted is
located. Choice of venue shall rest with such person. The court may transfer
the case upon a finding that the other forum is more convenient. An appeal
shall be filed within 10 days from the date of the order and shall be given
priority over all other pending matters before the court and heard as soon as
possible, notwithstanding � 19.2-241 regarding the time within which the court
shall set criminal cases for trial. A petition for or the pendency of an appeal
shall not suspend any order unless so ordered by a judge or special justice;
however, a person may be released after a petition for or during the pendency
of an appeal pursuant to � 37.2-837 or 37.2-838. The clerk of the court from
which an appeal is taken shall immediately transmit the record to the clerk of
the appellate court. The clerk of the circuit court shall provide written
notification of the appeal to the petitioner in the case in accordance with
procedures set forth in � 16.1-112. No appeal bond or writ tax shall be
required, and the appeal shall proceed without the payment of costs or other
fees. Costs may be recovered as provided for in � 37.2-804.

B. The appeal shall be heard de novo in accordance with the provisions
set forth in �� 37.2-802, 37.2-804, 37.2-804.1, 37.2-804.2, and 37.2-805, and
(i) � 37.2-806 or (ii) �� 37.2-814 through 37.2-819, except that the court in
its discretion may rely upon the evaluation report in the commitment hearing
from which the appeal is taken instead of requiring a new evaluation pursuant
to � 37.2-815. Any order of the circuit court shall not extend the period of
involuntary admission or mandatory outpatient treatment set forth in the order
appealed from. An order continuing the involuntary admission shall be entered
only if the criteria in � 37.2-817 are met at the time the appeal is heard.
Upon a finding by the court that the appellant no longer meets the criteria for
involuntary admission or mandatory outpatient treatment, the court shall not
dismiss the Commonwealths petition but shall reverse the order of the district
court. The person so admitted or certified shall be entitled to trial by
jury. Seven persons from a panel of 13 shall constitute a jury.

C. If the person is not represented by counsel, the judge
shall appoint an attorney to represent him. Counsel so appointed shall be paid
a fee of $75 and his necessary expenses. The order of the court from which the
appeal is taken shall be defended by the attorney for the Commonwealth.