Posting #216 – Section 9.1-909, Code of Virginia, Provides for Relief from Certain Re-Registration Requirements

By:  RSOL of Virginia
Date:  04/26/2010

Virginia Supporters,

A supporter received a response from the Governors office a few weeks back that we finally got the time to look up.

The response said,

Section 9.1-909, Code of Virginia, provides for relief from certain Registration requirement for violent sex offenders to petition the Circuit court of conviction for relief of certain registration requirements.  Offenders who have complied with the sex offender registration requirements as provided by Virginia law may take advantage of this relief.

Thank you for the information.
Sincerely,
Banci Tewolde

So we looked that code up, http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+9.1-909

§ 9.1-909. Relief from registration or re-registration.

A. Upon expiration of three years from the date upon which the duty to register as a sexually violent offender or murderer is imposed, the person required to register may petition the court in which he was convicted or, if the conviction occurred outside of the Commonwealth, the circuit court in the jurisdiction where he currently resides, for relief from the requirement to reregister every 90 days. After five years from the date of his last conviction for a violation of § 18.2-472.1, a sexually violent offender or murderer may petition for relief from the requirement to reregister monthly. A person who is required to register may similarly petition the circuit court for relief from the requirement to reregister every 180 days after five years from the date of his last conviction for a violation of § 18.2-472.1. The court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether the person suffers from a mental abnormality or a personality disorder that makes the person a menace to the health and safety of others or significantly impairs his ability to control his sexual behavior. Prior to the hearing the court shall order a comprehensive assessment of the applicant by a panel of three certified sex offender treatment providers as defined in § 54.1-3600. A report of the assessment shall be filed with the court prior to the hearing. The costs of the assessment shall be taxed as costs of the proceeding.
If, after consideration of the report and such other evidence as may be presented at the hearing, the court finds by clear and convincing evidence that the person does not suffer from a mental abnormality or a personality disorder that makes the person a menace to the health and safety of others or significantly impairs his ability to control his sexual behavior, the petition shall be granted and the duty to reregister more frequently than once a year shall be terminated. The court shall promptly notify the State Police upon entry of an order granting the petition. The person shall, however, be under a continuing duty to register annually for life. If the petition is denied, the duty to reregister with the same frequency as before shall continue. An appeal from the denial of a petition shall lie to the Supreme Court.
A petition for relief pursuant to this subsection may not be filed within three years from the date on which any previous petition for such relief was denied.

B. The duly appointed guardian of a person convicted of an offense requiring registration or reregistration as either a sex offender, sexually violent offender or murderer, who due to a physical condition is incapable of (I) reoffending and (ii) reregistering, may petition the court in which the person was convicted for relief from the requirement to reregister. The court shall hold a hearing on the petition, on notice to the attorney for the Commonwealth, to determine whether the person suffers from a physical condition that makes the person (I) no longer a menace to the health and safety of others and (ii) incapable of reregistering. Prior to the hearing the court shall order a comprehensive assessment of the applicant by at least two licensed physicians other than the person's primary care physician. A report of the assessment shall be filed with the court prior to the hearing. The costs of the assessment shall be taxed as costs of the proceeding.
If, after consideration of the report and such other evidence as may be presented at the hearing, the court finds by clear and convincing evidence that due to his physical condition the person (I) no longer poses a menace to the health and safety of others and (ii) is incapable of reregistering, the petition shall be granted and the duty to reregister shall be terminated. However, for a person whose duty to reregister was terminated under this subsection, the Department of State Police shall, annually for sex offenders and quarterly for persons convicted of sexually violent offenses and murder, verify and report to the attorney for the Commonwealth in the jurisdiction in which the person resides that the person continues to suffer from the physical condition that resulted in such termination.
The court shall promptly notify the State Police upon entry of an order granting the petition to terminate the duty to reregister.
If the petition is denied, the duty to reregister shall continue. An appeal from the denial of a petition shall be to the Virginia Supreme Court.
A petition for relief pursuant to this subsection may not be filed within three years from the date on which any previous petition for such relief was denied.
If, at any time, the person's physical condition changes so that he is capable of reoffending or reregistering, the attorney for the Commonwealth shall file a petition with the circuit court in the jurisdiction where the person resides and the court shall hold a hearing on the petition, with notice to the person and his guardian, to determine whether the person still suffers from a physical condition that makes the person (I) no longer a menace to the health and safety of others and (ii) incapable of reregistering. If the petition is granted, the duty to reregister shall commence from the date of the court's order. An appeal from the denial or granting of a petition shall be to the Virginia Supreme Court. Prior to the hearing the court shall order a comprehensive assessment of the applicant by at least two licensed physicians other than the person's primary care physician. A report of the assessment shall be filed with the court prior to the hearing. The costs of the assessment shall be taxed as costs of the proceeding.

So this means:
That those who are required to register every 90 days can at his or her own expense petition the courts after 5 years of exemplary behavior to reduce the re registration requirement to an annual requirement. It appears that this would not be an easy process and could be expensive, but it is there.

Additionally if denied you would not be able to re-petition the courts for another 3 years. 

Those required to register every 180 days can also petition the courts at his or her own expense petition after 3 years of exemplary behavior to reduce the re registration to once a year. Then re-petition again after 3 years if denied.

Additionally if a person becomes physically unable to register in person the courts can remove his or her requirement to register at all. This would not remove them from the registry but would remove the legal responsibility of a person to register his or her self.

The Virginia State Police in this case would check either quarterly or annually that the condition that prevents this person from registering has not changed.

So all in all, this is new information that we were not aware of and suspect you were not either.

So a big thanks to the supporter who wrote to the Governors office and got the above response back to get us to read this statute to know it even existed.

This is a statute RSOL of Virginia would like to work on getting stream-lined in the future so that it would be automatic and not require monetary funds and your time to get it done. If you have gone 5 years with exemplary behavior then your re-registration should automatically become once a year, period!

If anyone does petition the court to reduce the number of times you have to re-register every year, please let us know of the cost and of the outcome so we can share that information with everyone.

RSOL of Virginia

1st Response to Posting #216
From: Bob
Date:  04/26/2010

RSOL Virginia,

I petitioned the court prior to SORNA 2006, for almost word for word statue except I was completely removed from the website registry.  It cost me 45K for the court appointed sex offender PhD analysis of me and their report to the court.  I recall one Psychiatrist charged me 17K to do their evaluation.  Each charged whatever they wanted and it was a money maker for they were court approved and I gladly paid. 

Of course, after SORNA 2006, my money was wasted and I was not afforded my day in court  for my case against the new law, or the money I felt compelled to spend to get my court order removing me completely from the SO registry, and I would register once a year.

I am supposed to re register once a year, but I have to fight for this every time I travel and register somewhere else, the VSP ignores the court order which is still valid for me to register once a year, I have to have my attorney contact the Commonwealth attorney office why I am registering every 90 days when my court order states annually?

When I came back from the Middle East it took the VSP at Richmond 120 days to comply after my attorney was involved.  

In other words, just because you have the circuit court order stating once a year, VSP will continue to send you your registration every 90 days and you will have to fight to make them comply.  Compliance could mean 5-9 months before they get around to it if you have noise from your attorney.

Bob

2nd Response to Posting #216
From: James
Date:  04/26/2010

RSOL Virginia,

I'm in the process now. 

We've filed the paperwork and I'll let you know the outcome.  My attorney fees are $2,500 and the "panel of three certified sex offender treatment providers" costs $3,000.

If anyone has already been through the panel assessment, I'd appreciate hearing their comments. 

Thanks.

James

3rd Response to Posting #216
From: Denise
Date:  04/26/2010

RSOL of Virginia,

Our son successfully petitioned the court last year.

The three psychologists, which included the testing and evaluations, were $1000 each.  The attorney was $3500, but of course that will vary depending on the attorney.

We had letters of recommendation from several respected people in the community who have known him most of his life. I believe these were presented along with the evaluations.

Denise

 

4th Response to Posting #216
From: Ed
Date:  04/26/2010

RSOL of Virginia,

Very interesting statute.

I completely agree.  A relief should be automatically granted after 5 years of good behavior.  It's a win/win situation for EVERYBODY. 

Keep up the good work.

Ed

5th Response to Posting #216
From: Dave
Date:  04/26/2010
RSOL of Virginia,

A few years ago, I checked out what it might cost to hire an attorney to file a motion for relief from registration.  That was before they changed the law and declared me violent.  

At the time, the basic fee was going to run about $750 just to file the motion.  That does not, of course, count other costs such as the two shrinks. 

Might be worth it, though.  It's sure worth considering.

Dave

6th Response to Posting #216
From: Bob
Date:  04/25/2010

RSOL of Virginia,

Here is another avenue I considered.

Bob

From: McElroy, Brenda (OPA) [mailto:Brenda.McElroy@usdoj.gov] On Behalf Of FOIA, OPAFOIA (OPA)
November  2007
Subject: Office of the Pardon Attorney, Pardon application & instructions

Sir,

I’m placing an application in the mail for you. 

If this is for you, please ensure that first, you have a federal conviction; that it’s not a state conviction.  Secondly, before you can submit a petition for presidential pardon, it must be five years since the date of conviction, unless you were incarcerated or had home confinement, then it must be five years since the date of release.

Finally, although I’m sending you the petition, this e-mail site is for submitting requests under the Freedom of Information Act to our office.  Requesting general information, such as petitions or the status of applications, may be done by writing our office at Office of the Pardon Attorney, 1425 New York Avenue, NW, Suite 11,000, Washington, DC 20530, or calling.  Our telephone number is (202) 616-6070.

Sincerely,

Brenda McElroy

FOIA Officer