What Happens When Criminal Laws Change?

By Bradley Marshall, Esq.

What happens if you have been charged with a crime, but the code section you are charged with or a related code section changes before your case gets finalized in court? 

That is a pressing question right now in Virginia as sweeping criminal justice reform measures took effect in 2021. Cases have been slow to resolve themselves during the COVID pandemic, and many cases that were charged before those changes took effect are still trickling through the court system. So, what happens when the law changes after you are charged but before your case is resolved?

Virginia was the first state in the nation to bar traffic stops for low-level offenses under the theory that such stops are pretexts that have a disproportionate impact on persons of color.

The new traffic stop laws were enacted last year after the police killing of George Floyd in Minneapolis and were designed to curb racial disparities in police conduct. The amendments that took effect in 2021 prohibit traffic stops for infractions such as broken taillights, tinted windows, and the smell of marijuana. Evidence from improper stops can be suppressed under these new laws under the well-entrenched United States Supreme Court legal doctrine called the “exclusionary rule,” which is designed to exclude evidence in cases that were gained through wrongful police conduct in order to deter such conduct.[1]

What happens when the law changes like this?  Statutes are normally not retroactive. The legislature generally must intend that their changes to statutes be retroactive. This can happen in one of two circumstances:

• the text of the new or amended statute contains explicit terms demonstrating its retroactive effect; or
• the statute’s amended terms affect “remedial” or “procedural” rights, rather than “substantive” or “vested” rights.

Whether the text of the new or amended statute explicitly states that the new law is retroactive is self-explanatory. But what are “remedial” or “procedural” rights in this context that do in fact lead to retroactive application of the new laws? While new statutes are generally to be prospective, not retroactive, procedural provisions of the statute in effect on the date of trial, not the date of charging, control the conduct of trial insofar as practicable.[2]

Where a statutory amendment affects a change in both substance and remedy (or procedure), a statute will not have a retroactive effect.[3] In circumstances where a statutory amendment affects a change in both substance and remedy (or procedure), courts will not give the statute retroactive effect. In order for a statutory change to apply retroactively, it must be procedural in nature and affect remedy only, disturbing no substantive or vested rights.[4] So long as the amendments affected any change in substantive rights, courts could not apply the statute retroactively

But courts across the Commonwealth have reached differing conclusions as to which of these new laws are in fact retroactive. For example, in June, Roanoke Circuit Judge Charles N. Dorsey suppressed a packet of meth found in a defendant’s car in a 2020 traffic stop based on a broken taillight and expired registration. He said the changes in the code were “procedural” and therefore retroactive. But in August, Newport News Circuit Judge Gary A. Mills held the reform legislation lacked any express provision that the changes should be applied retroactively. That case concerned a traffic stop for a defective taillight in August of 2019. Judge Mills declined to suppress evidence of drugs arising from a stop for window tinting and a license plate violation:

While the Court maintains doubts about the ‘procedural’ nature of these amendments, that issue becomes moot in light of the Court’s finding that whether these amendments are ‘procedural’ or ‘substantive,’ to apply these amendments and their statutorily created exclusionary rule to what was lawful conduct of the police when undertaken in 2019 would not serve the purpose of any exclusionary rule (to deter wrongful police conduct), would serve to punish the police for what was legal conduct at the time it was undertaken, and in sum, would ‘defy common sense,’ and would not be ‘practicable to do so’ as required by Virginia Code § 1-239.

Given this “circuit split,” where two or more circuit courts provide conflicting rulings on the same legal issue, Virginia’s appellate courts must resolve the issue. Such cases are now pending in front of the newly expanded Virginia Court of Appeals. Stay tuned to VF&N’s blog for updates! Blog – Vanderpool, Frostick & Nishanian, PC (vfnlaw.com)

Brad Marshall is an associate at Vanderpool, Frostick & Nishanian, P.C. He is leading the firm’s Criminal, Traffic and White Collar Defense practice, assisting in expanding our Investigations practice, and working with our Civil Litigation and Municipal teams If you have additional questions or concerns contact Bradley Marshall at  BMarshall@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

[1]SeeMapp v. Ohio, 367 U.S. 643 (1961) (U.S. Reports: Mapp v. Ohio, 367 U.S. 643 (1961). (loc.gov))

[2]See Va. Code § 1-238. Reenacted (virginia.gov) and Va. Code § 1-239. Repeal not to affect liabilities; mitigation of punishment (virginia.gov)

[3]SeeMcCarthy v. Commonwealth, Va. Court of Appeals, November 9, 2021

[4]See Cohen v. Fairfax Hosp. Ass’n, 12 Va. App. 702, 705 (1991) (https://www.vacourts.gov/opinions/opncavtx/1298014.txt)