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Remand to determine active time for probation violation

Where the trial court sentenced appellant to active time after he used alcohol and marijuana while on probation, “[w]e hold that the trial court did not err by classifying his alcohol violation as non-technical and ordering the appellant to serve a portion of his previously suspended sentence.

“However, we conclude that the marijuana violation did not permit the imposition of suspended time.”

New caselaw

“The appellant argues that his violations of the alcohol and marijuana condition, although imposed upon him through a DOC sex offender special instruction, are nonetheless technical violations listed in Code § 19.2-306.1(A)(vi) and (vii) because the violation behavior was ‘the same.’ He suggests as a result that the trial court erred by imposing a term of active incarceration.

“We hold first that, at a time when appellate guidance was lacking, the trial court erred by concluding that classification of the relevant conditions of probation as ‘special’ conditions is dispositive. Since the trial court issued that ruling, this Court has clarified that any ‘label … [that] may have [been] used’ for the condition is not controlling. Delaune v. Commonwealth, 76 Va. App. 372, 383 (2023) (emphasis added)[.] …

“The Court explained instead that ‘the General Assembly specifically defined “technical violation” to include any “violation based on” specified conduct.’ … In other words, Code § 19.2-306.1(A) ‘focuses on the underlying violation conduct itself.’ …

“‘When the violation conduct matches the conduct listed’ in one of the ten subsections of Code § 19.2-306.1(A), ‘it is, by definition, a ‘technical violation.’ … (emphasis added). The language, therefore, need not be identical, as long as the probationer’s proscribed ‘underlying’ conduct ‘matches’ the listed technical violation in the statute. …

“By so holding, the Court rejected the theory that merely classifying something as a special condition, a term not used in Code § 19.2-306.1, insulates it from the limitations on imposing active incarceration that the General Assembly set out in the statute.”

The statute

“Consequently, we turn to the language of Code § 19.2-306.1(A) to determine whether the appellant’s alcohol and drug use ‘matche[d]’ the conduct enumerated in subsections (vi) and (vii) of the statute. …

“First, subsection (A)(vi) details a probationer’s failure to ‘refrain from the use of alcoholic beverages to the extent [such use] disrupts or interferes with his employment or orderly conduct.’

“Second, subsection (A)(vii) involves a probationer’s failure to ‘refrain from the use, possession, or distribution of controlled substances or related paraphernalia.’

“On the procedural posture of this case, if either the alcohol or drug use violation was not a technical violation under subsection (A)(vi) or (vii), then the trial court did not err by ordering the appellant to serve active time.”


“With regard to the appellant’s alcohol violation, the sex offender special instructions he signed provided in pertinent part that he could not consume any alcohol. Subsection (A)(vi) of Code § 19.2-306.1, by contrast, defines using alcohol as a technical violation only ‘to the extent that it disrupts or interferes with’ the probationer’s ‘employment or orderly conduct.’

“Therefore, the appellant’s ‘violation conduct’ of consuming alcohol under the sex offender special instructions, without any requirement of associated misbehavior or adverse impact on employment, does not ‘match[]’ the alcohol-related conduct listed as a technical violation. …

“As a result, the appellant’s violation of his probation based on his alcohol consumption is not a technical violation under subsection (A)(vi), the only subdivision of Code § 19.2-306.1(A) upon which the appellant relies to challenge this portion of the ruling on appeal.

“Consequently, the appellant’s violation of the alcohol special condition was not a technical one under subsection (A)(vi) of Code § 19.2-306.1, and the trial court was free to order the appellant to serve all or part of his previously suspended sentence.”

Drug violation

“The appellant asserts that his violation of probation based on his positive tests for marijuana use was a technical violation. Therefore, he argues that the trial court was not authorized to impose any active incarceration based on that violation.

“We addressed a similar issue in Delaune, a case decided well after the trial court’s ruling here. In Delaune, … the Court held that a ‘special condition’ that the defendant ‘remain “drug free” was [the same as] a failure to “refrain from the use, possession, or distribution of controlled substances”’ set out in Code § 19.2-306.1(A)(vii).

“Here, too, we hold that the wording of the appellant’s listed marijuana violation and the language in subsection (vii) of Code § 19.2-306.1(A) are substantively the same because they involved the same conduct.

“The appellant’s violation of the special instruction that he not ‘consume[] or possess … marijuana[] and/or illegal substances’ is also a violation of the requirement of Code § 19.2-306.1(A)(vii) that he ‘refrain from the use’ or ‘possession’ of ‘controlled substances.’ …

“Consequently, the drug-related portion of the appellant’s violation of Code § 19.2-306.1(A) is a technical violation and does not support the imposition of any of his previously suspended sentence.

Active time

“The alcohol violation supports the trial court’s decision to impose active incarceration because the violation is not a technical one under Code § 19.2-306.1(A)(vi). Nonetheless, the court’s erroneous ruling that the marijuana violation was not technical could have impacted its decision regarding how much active time to impose.

“This is particularly the case in light of the fact that the appellant had only one positive test for alcohol and multiple positive tests for marijuana use. Therefore, we remand the case for the trial court to consider anew how much active time, if any, to impose.”

Affirmed in part, reversed in part and remanded.

Thomas v. Commonwealth, Record No. 0477-22-2, May 9, 2023. CAV (published opinion) (Decker). From the Circuit Court of Henrico County (Harris Jr.) Paul C. Galanides for appellant. Susan Hallie Hovey-Murray, Jason S. Miyares for appellee. VLW 023-7-164, 12 pp.

VLW 023-7-164

Virginia Lawyers Weekly