New Laws in Virginia Effective July 1, 2021

Here’s a brief summary of some of the more notable laws passed by the 2021 Virginia legislature. Most new laws take effect on July 1st. A common theme is that they are generally considered defense-friendly, but not all. You should consult an attorney or read the code if you want to know specifics.

End of the Death Penalty

On March 24, 2021 Virginia became the first southern state to abolish Capital Punishment. Since 1976 when the U. S. Supreme Court upheld capital punishment (Gregg. v. Georgia), the Commonwealth has executed 113 people, second only to Texas. Advocates for abolition of the death penalty argue that it has been used inequitably against the poor, mentally-disabled, and people of color. Virginia is the 23rd state to abolish the death penalty. 

Legalization of Marijuana

Effective July 1, 2021 Virginia becomes the first southern state to legalize the possession and use of marijuana. The terms “cannabis” and “marijuana” are used interchangeably. Some important things to know about the legalization are noted below. SB 1406, HB 2312

• Possession of more than one ounce is still illegal.
• Possession by anyone under 21 years is still illegal.
• Consumption in public is illegal.
• Cannabis will not be available for sale in VA until 2024.
• “Adult sharing” of one ounce or less is allowed.
• The practice of purchasing a small item and receiving a gift of marijuana as is practiced by vendors in Washington, DC will not be allowed.
• You may grow your own but not more than 4 plants per household which must be hidden from view of the street, inaccessible to those under 21, and labeled.
• Unless in the sealed manufacturer’s package, cannabis in the passenger area of a vehicle will be considered open container with a presumption of DUI.
• Prior misdemeanors for possessing or selling marijuana will be sealed from public view.
• The new law allows for resentencing of those currently incarcerated with cannabis-related offenses in the court of original sentencing.
• The Commonwealth of VA has set up a webpage but it doesn’t give legal advice and it doesn’t go into many of the details of the new law. (cannabis.virginia.gov)

Restaurants/Off-Premises Consumption

Restaurants and others holding an appropriate ABC license can continue to sell mixed drinks and alcoholic beverages for off-premises consumption for another year, until July 1, 2022. HB 1879, SB 1299

Driving/Motor Vehicles

Effective January 1, 2021 it is illegal to hold a cellphone or electronic device while driving. Hands-free talking is allowed.

Effective March 1, 2021, police cannot stop a vehicle (or pedestrian) under certain circumstances that previously allowed a stop. These offenses include: Odor of alcohol, odor of marijuana, broken tail-light, expired inspection, cracked windshield, tinted windows, defective equipment, and air freshener hanging from a rear-view mirror. These items can still result in a summons but only as a secondary offense and not as a reason to pull over a vehicle. An expired inspection or registration must be at least 4 months past due for a primary stop. Any evidence obtained after an improper stop would be inadmissible in a court of law.  HB 5058 SB 5029

HB 2262 requires the driver of a motor vehicle to move over a lane if it’s not possible to pass a bicyclist with at least three feet of distance; removes the limitation on riding bicycles two abreast; and, authorizes the State Police to convene a work group to review issues allowing bicyclists to treat stop signs as yield signs.

Driver privilege cards are available to non-U.S. citizens if they are Virginia residents and have reported income over the past 12-months or are listed as a dependent on a tax return. Effective January 1, 2021HB 1965 directs the State Air Pollution Control Board to implement a low-emissions and zero-emissions vehicle program for vehicles beginning with 2025 and after. This bill attempts to increase sales of electric cars in VA by allowing vehicle manufacturers to establish a VA-specific zero-emission (electric) vehicle credit account. These credits may be traded or sold or used to meet up to 18 percent of the manufacturer’s zero-emissions vehicle program credit requirements in any model year.

Search Warrants and Sentencing

Search warrants may be executed only between 8:00 AM and 5:00 PM unless specifically authorized otherwise by a judge or magistrate according to SB 1475.

The court cannot sentence a defendant to additional incarceration if his/her suspended sentence is revoked unless a new crime has been committed. The new law distinguishes “technical violations” as not being a reason for more jail time. There are some exceptions including public safety and time necessary for evaluation or to participate in a court-ordered drug, alcohol, or mental health treatment program. HB 2038 VA Code 19.2-306.1

Firearms

Effective January 1, 2021 anyone applying for a concealed weapons permit must take an in-person firearms training course. Virtual courses are no longer acceptable.

HB 2128 increases from three days to five days the time allowed for State Police to complete a background check before transfer or sale of a firearm. If the State Police have informed the dealer that the report will not be complete within five days, the seller may continue with the transaction without it being a violation provided that all other requirements were met.

Employment

Effective January 1, 2021 employers are prohibited from paying employees as independent contractors unless they have documented proof that the employee meets the requirements of a contractor according to the test established by the IRS. SB 1323

HB 1848 adds illegal discrimination on the basis of disability to the Virginia Human Rights Act. Employers are required to make reasonable accommodations for the known physical and mental impairments of an otherwise qualified person with a disability.

Minimum Wage

Previously Virginia’s minimum wage was the federal amount of $7.25. Effective May 1st 2021 the minimum wage increased to $9.50. Additional increases will move the minimum wage to $11.00 on January 1, 2022, and to $12.00 on January 1, 2023. Further increases to $13.50 on January 1, 2025, and $15.00 on January 1, 2026 are contingent on the General Assembly's enactment by July 1, 2024.

Landlords/Tenants

HB 1889 extends certain tenant protections until July 1, 2022 including that notice of a breach of lease due to non-payment of rent requires a 14-day notice (previously 5-day), landlord must offer the tenant a payment plan to make up past due rent over six months (or the remainder of the lease, whichever is less), landlord must outline remedies available to landlord if tenant fails to pay rent or enter into a payment plan, and clarification that tenant is not precluded from participating in any other rent relief program that may be available through government or private organizations.

HB 1981 allows tenants to reasonably refuse to allow a landlord or an agent to show leased premises for sale or lease during a State of Emergency if he has concerns for his health and safety due to a communicable disease. In such a case, the tenant must provide a written statement of the refusal and must provide a video tour of the premises.

SB 1215 provides tenant remedies for exclusion from the dwelling, interrupted services or acts by Landlord to make premises unsafe. Upon petition from a tenant, a general district court can enter an ex parte order requiring landlord to return possession to tenant, restore services, or take corrective actions to make the premises safe with a full hearing within ten days. Additionally, a tenant may be awarded actual damages, the greater of $5,000 or four months rent, plus reasonable attorney’s fees and costs. 

HB 2014 prohibits a landlord from obtaining an order for possession if the tenant has fully paid the late rent, damages, monetary judgments, and other costs unless there is a non-monetary breach of contract. If a partial payment is made, the landlord can proceed to obtain possession provided that the landlord has issued a “rent with reservation notice” with specific wording. A copy of the notice must be provided to the court and served on the tenant along with the summons for unlawful detainer. “Any partial payment of rent made before or after a judgment of possession is ordered will not prevent your landlord from taking action to evict you. However, full payment of all amounts you owe the landlord, including all rent as contracted for in the rental agreement that is owed to the landlord as of the date payment is made, as well as any damages, money judgment, award of attorney fees, and court costs made at least 48 hours before the scheduled eviction will cause the eviction to be canceled, unless there are bases for the entry of an order of possession other than nonpayment of rent stated in the unlawful detainer action filed by the landlord.”

Homeowners/Property Owners

Two new disclosures must be included with a residential sales contract. HB 1824 deals with mold and HB 2320 SB 1289 deals with flood risk.HB 2175, SB 1327 strengthens protections for homeowners facing foreclosure.

The Virginia Condominium Association Act and Property Owners’ Association Act are amended in HB 1842 to allow associations to make rules regarding smoking in common areas and, for communities that contain attached units, in the attached units. The law allows for the underlying documents to prohibit the board from making such rules, but in absence of such a prohibition, the board of directors may adopt rules prohibiting smoking even inside a private residence.

“Heirs property” owners will be allowed additional time to pay delinquent taxes and to claim inherited property. This law is a recommendation from the Commission to Examine Racial Inequity in Virginia Law established by Governor Northam in 2019. HB 2165

Health Insurance

HB 1896, SB 1276 removes the prohibition on abortion coverage in any qualified health insurance plan offered through the Virginia state-based exchange. Advocates say this bill removes a medically unnecessary barrier to reproductive care.

HB 66 prohibits insurance carriers from charging more than $50 for a 30-day supply of insulin. Effective January 1, 2021

SB 1227 allows for the payment of up to a 12-month supply of birth control for Medicaid and Family Access to Medical Insurance Security (FAMIS) enrollees.

Education/Schools 

No more Snow Days. HB 1790 allows schools to teach remotely if the buildings are closed due to inclement weather.

Effective August 1, 2022, any student is eligible for state financial aid if they are eligible for in-state tuition, regardless of citizenship or immigration status. HB 2123, SB 1387 

HB 1940, SB 1439 directs the Virginia Department of Education to establish guidelines that permit middle and high school students to attend a civic or political event and receive an excused absence.

HB 2013 prohibits school boards from suing families to collect debts on unpaid school meals.

Civil Judgment

HB 2099 reduces the amount of time that action can be taken on a civil judgment from 20 years to 10 years. The judgment may be extended twice by recording a certificate prior to the judgment’s expiration with the clerk of court.

Facial Recognition Technology

HB 2031 prohibits police or campus police from using facial recognition technology.

Absentee Voting and Election Laws

Upon reasonable cause to believe that there has been a violation of election laws and the rights of a voter have been affected, the Commonwealth’s Attorney may file a civil suit. Available remedies may include a restraining order or injunction, a fine of up to $50,000 for first offense and $100,000 for second offense, and an award to cover plaintiff’s reasonable attorneys’ fees and costs.  SB 1395

HB 1968 permits the electoral board or general registrar to provide absentee voting in person in the office of the general registrar or voter satellite office on Sundays.

Family Law

Violation of a Preliminary Protective Order in a manner that endangers a child shall be a Class One misdemeanor. Previously, this would constitute contempt of court.  SB 1415

Balloons

HB 2059 prohibits anyone 16 or older from intentionally releasing non-biodegradable balloons. The penalty is $25 per balloon for this civil violation.

Animal Rights

HB 2250, SB 1379 prohibits the testing of cosmetics on animals and the selling of cosmetics that have been tested on animals beginning in 2022.

Public Defenders and Prosecuters Compensation

Proposed bill HB 869 would require any governing body that supplements the compensation of prosecutors must do the same for public defenders. Although the state compensates prosecutors and public defenders equally, some local governments supplement wages so that attorneys working for the Office of the Commonwealth’s Attorney earn more than public defenders. The 2020 bill was left in committee and has not passed, however attention has been drawn to the issue. The City of Virginia Beach is taking steps to change this discrepancy even though it isn’t required by law to do so.

Kathryn Byler is a Pender and Coward attorney focusing her practice in the areas of real estate, business, guardianships, and estate planning matters. She is currently the chair of the Virginia State Bar Real Property Section.