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Committee Substitute House Bill 2739 History

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Key: Green = existing Code. Red = new code to be enacted
COMMITTEE SUBSTITUTE

FOR

H. B. 2739


(By Delegates Webster, Frazier, Fleischauer,

Miley and Longstreth)

(Originating in the House Committee on the Judiciary)

[March 20, 2009]


A BILL to amend and reenact §48-27-311, §48-27-505, §48-27-701, §48-27-902, §48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as amended; and to amend said code by adding two new sections, designated §48-27-1003 and §48-27-1004, all relating to revising and expanding the procedures and methods for service, enforcement, and registration of domestic violence protective orders; requiring circuit court clerks to use certified or registered mail for service of a protective order; requiring circuit court clerks to forward copies of protective orders to magistrates or magistrate court clerks; requiring magistrates or magistrate court clerks to forward copies of protective orders to state and federal agencies; requiring law enforcement to attempt service of protective orders within seventy-two hours of issuance; authorizing certain persons to file a criminal complaint for violation of a protective order; providing a criminal penalty for violation of a protective order; authorizing the seizure of weapons possessed in violation of a protective order; authorizing nonjudicial enforcement and service of state protective orders; and providing civil and criminal immunity to government officials for acts or omissions arising out of enforcement of a protective order, or the detention or arrest of an alleged violator of a protective order, if the official acted in a good faith effort to comply with the statutes related to the prevention and treatment of domestic violence.

Be it enacted by the Legislature of West Virginia:
That §48-27-311, §48-27-505, §48-27-701, §48-27-902, §48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §48-27-1003 and §48-27-1004, all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.

§48-27-311. Service of process.
A If the clerk's office has not received the return of service by law enforcement within five calendar days of entry of the protective order, the clerk of the court shall mail by certified or registered mail to the respondent at the respondent's last known address a copy of the petition and protective order. If the clerk does not have an address for the respondent or the certified mail is returned undelivered then the protective order may be served on the respondent by means of a Class I legal advertisement published notice, with the publication area being the county in which the respondent resides, published in accordance with the provisions of section two, article three, chapter fifty-nine of this code if: (1) The petitioner files an affidavit with the court stating that an attempt at personal service pursuant to Rule 4 of the West Virginia Rules of Civil Procedure has been unsuccessful or evidence is adduced at the hearing for the protective order that the respondent has left the State of West Virginia; and (2) a copy of the order is mailed by certified or registered mail to the respondent at the respondent's last known residence and returned undelivered.
Any protective order issued by the court of this state which is served in compliance with the provisions of Rule 4(f) of the West Virginia Rules of Civil Procedure served outside the boundaries of this state shall carry the same force and effect as if it had been personally served within this state's boundaries.
§48-27-505. Time period a protective order is in effect; extension of order; notice of order or extension.

(a) Except as otherwise provided in subsection (d), section four hundred one of this article, a protective order, entered by the family court pursuant to this article, is effective for either ninety days or one hundred eighty days, in the discretion of the court. If the court enters an order for a period of ninety days, upon receipt of a written request from the petitioner prior to the expiration of the ninety-day period, the family court shall extend its order for an additional ninety-day period.
(b) To be effective, a written request to extend an order from ninety days to one hundred eighty days must be submitted to the court prior to the expiration of the original ninety-day period. A notice of the extension shall be sent by the clerk of the court to the respondent by first-class mail, addressed to the last known address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
(c) Certified copies of any order entered or extension notice made under the provisions of this section shall be served upon the respondent by first class mail, addressed to the last known address of the respondent as indicated by the court file, and delivered to the petitioner and any law-enforcement agency having jurisdiction to enforce the order, including the city police, the county sheriff's office or local office of the West Virginia State Police within twenty-four hours of the entry of the order. The protective order shall be in full force and effect in every county of this state.
(d) The family court may modify the terms of a protective order upon motion of either party.
(e) The clerk of the circuit court shall cause a copy of any protective order entered by the family court pursuant to the provisions of this article or pursuant to the provisions of chapter forty-eight of this code to be forwarded to the magistrate or magistrate court clerk and the magistrate or magistrate court clerk shall forward a copy of the protective order to the appropriate state and federal agency agencies for registration of domestic violence offenders as required by state and federal law.
§48-27-701. Service of pleadings and orders by law-enforcement officers.

Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to serve all pleadings and orders filed or entered pursuant to this article on Sundays and legal holidays. No law-enforcement officer shall refuse to serve any pleadings or orders entered pursuant to this article. Law enforcement shall attempt to serve all protective orders issued pursuant to this article no later than seventy-two hours after entry of the order, and law enforcement shall continue to attempt service on the respondent until proper service is obtained.

§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children, or both, or is physically present at any location, or continues to contact, threaten or harass the petitioner, the minor children, or both, by phone, voice mail, e-mail or other means, even if the respondent is not physically present with the petitioner or minor children at the time of the threats or harassment:
(1) In knowing and willful violation of the terms of an emergency or final protective order under the provisions of this article or section five hundred nine or six hundred eight, article five of this chapter granting the relief pursuant to the provisions of this article;
(2) In knowing and willful violation of the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section three, article twenty-eight of this chapter; or
(3) In knowing and willful violation of the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons in violation of subdivision (3), subsection (a), section seven, article twenty-eight of this chapter then any person authorized to file a petition pursuant to the provisions of section three hundred five of this article or the legal guardian or guardian ad litem may file a petition for civil contempt as set forth in section nine hundred one of this article.
(b) When any such violation of a valid order has occurred, the petitioner may file a criminal complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for arrest of the person charged.
(a)Any person authorized to file a petition pursuant to section three hundred five of this article, and any person authorized to file a petition for civil contempt pursuant to section nine hundred one of this article may file a criminal complaint
:
(1) Against a respondent who knowingly and willfully violates a provision of an emergency or final protective order entered pursuant to:
(A) subsection (a) or (b) of section five hundred two of this article;
(B) subsection (2), (7) or (9) of section five hundred three of this article
;
(C) subsection (a), section five hundred nine, article five of this chapter; or
(D) subsection (a), section six hundred eight, article five of this chapter;.
(2)
Against a person who violates a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons;
(3) Against a respondent who
knowingly and willfully violates the terms of a protection order from another jurisdiction that is required to be enforced pursuant to section three, article twenty- eight of this chapter; or
(4) Against a person who
, in violation of subdivision (3), subsection (a), section seven, article twenty-eight of this chapter, knowingly and willfully violates the terms of a condition of bail, probation or parole imposed in another state which has the express intent or effect of protecting the personal safety of a particular person or persons.
(b) If the court finds probable cause upon the complaint, the court shall issue a warrant for the arrest of the person charged.

§48-27-903. Misdemeanor offenses for violation of protective order,

repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children or who is physically present at any location, or continues to contact, threaten or harass the petitioner, the minor children, or both, by phone, voice mail, e-mail or other means, even if the respondent is not physically present with the petitioner or minor children at the time of the threats or harassment in knowing and willful violation of the terms of: (1) An emergency or final protective order issued under the provisions of this article or section five hundred nine or six hundred eight, article five of this chapter granting relief pursuant to the provisions of this article; or (2) a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
(b) A respondent who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.
(a) Any person who knowingly and willfully violates:
(1) a provision of an emergency or final protective order entered pursuant to: (A) subsection (a) or (b) of section five hundred two of this article; (B) subsection (2), (7) or (9) of section five hundred three of this article
; (C) subsection (a), section five hundred nine, article five of this chapter; or (D) subsection (a), section six hundred eight, article five of this chapter; or
(2)
a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons;
is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $250 nor more than $2,000.

(b)
Any person who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.
§48-27-1002. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the contrary, if a person is alleged to have committed a violation of the provisions of subsection (a) or (b), section twenty-eight, article two, chapter sixty-one of this code against a family or household member, in addition to any other authority to arrest granted by this code, a law-enforcement officer has authority to arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim or a witness, an oral or written allegation of facts constituting a violation of section twenty-eight, article two, chapter sixty-one of this code; or
(3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
(b) For purposes of this section, credible corroborative evidence means evidence that is worthy of belief and corresponds to the allegations of one or more elements of the offense and may include, but is not limited to, the following:
(1) Condition of the alleged victim. -- One or more contusions, scratches, cuts, abrasions, or swellings; missing hair; torn clothing or clothing in disarray consistent with a struggle; observable difficulty in breathing or breathlessness consistent with the effects of choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other unlawful physical contact.
(2) Condition of the accused. -- Physical injury or other conditions similar to those set out for the condition of the victim which are consistent with the alleged offense or alleged acts of self-defense by the victim.
(3) Condition of the scene. -- Damaged premises or furnishings; disarray or misplaced objects consistent with the effects of a struggle.
(4) Other conditions. -- Statements by the accused admitting one or more elements of the offense; threats made by the accused in the presence of an officer; audible evidence of a disturbance heard by the dispatcher or other agent receiving the request for police assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a) of this section, the arrested person shall be taken before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section twenty-eight, article two, chapter sixty-one of this code is authorized pursuant to this section, that fact constitutes prima facie evidence that the accused constitutes a threat or danger to the victim or other family or household members for the purpose of setting conditions of bail pursuant to section seventeen-c, article one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions of this article or for a violation of an order issued pursuant article five, section five hundred nine, the arresting officer, subject to the requirements of the Constitutions of this State and of the United States:
(1) Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence; and
(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons; and
(3) May seize all weapons that are possessed in violation of a valid protective order.
§48-27-1003. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid protective order exists and that the order has been violated, shall enforce the order. Presentation of a protective order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid protective order exists. For the purposes of this section, the protective order may be inscribed on a intangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protective order is not required for enforcement.
(b) If a protective order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid protective order exists.
(c) If a law-enforcement officer of this state determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
§48-27-1004. Immunity.
This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the enforcement of a protective order or the detention or arrest of an alleged violator of a protective order if the act or omission was done in good faith in an effort to comply with this article.

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