Crime panel endorses legislative proposals

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RICHMOND, Va. (AP) — The Virginia State Crime Commission endorsed legislation Wednesday to increase penalties for illegal cigarette trafficking and for texting while driving.

The panel also backed proposals to toughen the state's police officer decertification law and allow the collection of biological evidence from sexual assault victims who are unconscious or otherwise unable to give consent.

Lawmakers will consider the measures after they convene in Richmond for the 2013 session next month.

At a meeting earlier this year, experts told the commission that cigarette smuggling has dramatically increased because it can be more profitable than drug dealing, and the penalties are not as harsh. The most common type of trafficking, called "smurfing," involves people buying large quantities of cigarettes from retailers in Virginia, which has the nation's second-lowest tobacco tax at 30 cents a pack, and reselling them in higher-tax states in the Northeast. The tax in New York, for example, is $4.35 per pack.

The commission voted to keep the first smurfing offense a misdemeanor, but increase the maximum penalty from six months in jail to one year. A second offense involving 25 or more cartons of cigarettes, or a first offense involving 500 cartons or more, would be a felony punishable by up to five years in prison. A second conviction involving the larger quantity could result in a 10-year sentence.

Another measure endorsed by the panel would allow authorities to seize vehicles or other property used in cigarette smuggling.

The danger of texting while driving also has caught the commission's attention.

"We have a huge public safety problem," said Del. Manoli Loupassi, R-Richmond. He said a driver with a .08 percent blood-alcohol limit, which qualifies as drunken driving, is less dangerous than one who is texting.

Texting while driving is currently a civil violation punishable by a $20 fine. It's also a secondary offense, which means police can write a ticket for texting only if they stopped the driver for another violation.

The commission endorsed a bill already introduced by Del. Ben Cline, R-Rockbridge, that would classify the offense as reckless driving — a misdemeanor that can result in up to a year in jail. The legislation also would make it a primary offense, allowing police to pull over and charge any driver they see texting.

Cline's bill applies to a driver using any handheld communication device for other than verbal communication, prompting Loupassi to question whether someone would be in violation for punching in a number to place a call. Stewart Petoe, the commission's chief lawyer, said prosecutors and defense attorneys could both make effective arguments on that point.

Loupassi said he believes the Legislature eventually will have to prohibit any touching of a cellphone while driving to eliminate such ambiguity.

The commission also took preliminary steps toward toughening the state's police officer decertification law and allowing the collection of biological evidence from sexual assault victims who are unconscious or otherwise unable to give consent.

State law currently allows decertification of an officer for a felony conviction, failing to meet training requirements and failing or refusing to submit to a drug test. The panel voted to expand the law to allow decertification for misdemeanor sex offenses, domestic assault and crimes of "moral turpitude."

Police chiefs and sheriffs would be required to report subordinates' convictions to the Department of Criminal Justice Services, closing a loophole that has allowed some unfit officers to continue working in law enforcement. The commission was told earlier this year that only four officers have lost certification over the last two years because bosses sometimes don't report offenses and let the officers resign, allowing them to get a job elsewhere.

On the sexual assault issue, the commission struggled for more than an hour over whether a nurse should be given sole authority to collect rape kit evidence or whether permission from a magistrate should be required. Del. Rob Bell, R-Albemarle and chairman of the commission, said he was uncomfortable with allowing medical professionals to make that decision without judicial oversight. Other commissioners suggested doctors and nurses are better qualified than magistrates to make the call, and that they have to act quickly before the evidence is corrupted.

Bell said it's a tough decision for anyone to make because there is no way of knowing what the victim wants.

"Half will wake up and say 'I can't believe you did this' and half will wake up and say 'I can't believe you didn't,'" Bell said.

The commission settled on a compromise offered by Bell: require a second person at the hospital — a doctor or administrator — rather than a magistrate to sign off on collecting the evidence.

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