ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 415
(By Senators Wooton, Anderson, Edgell, Sharpe, Mitchell,
Hunter, Rowe, Caldwell, Oliverio, Minear, Sprouse, Ross,
Helmick, Love, Burnette, Boley and Kessler)
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[Originating in the Committee on the Judiciary;
reported February 1, 2002.]
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A BILL to amend and reenact section four, article fifteen, chapter
seventeen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
twenty-six, article seven, chapter twenty of said code; and to
amend and reenact section one-a, article eleven-a, chapter
sixty-two of said code, all relating to including work on
certain cemeteries as work that may be performed by jail or
prison labor or ordered as alternative sentencing.
Be it enacted by the Legislature of West Virginia:
That section four, article fifteen, chapter seventeen of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section twenty-six, article
seven, chapter twenty of said code be amended and reenacted; and
that section one-a, article eleven-a, chapter sixty-two of said code be amended and reenacted, all to read as follows:
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 15. COUNTY CONVICT ROAD FORCE.
§17-15-4. Work by prisoners; relief of sheriffs and others from
liability for injuries, etc.
(a) Any person convicted of a criminal offense and sentenced
to confinement in a county or regional jail shall, as incident to
such sentence of confinement, be required to perform labor within
the jail, as a trustee or otherwise, or in and upon the buildings,
grounds, institutions, roads, bridges, streams or other public
works of the county
, any county public or not-for-profit cemeteries
or family cemeteries freely accessible by the public or the area
within which the regional jail is located if he or she meets the
following criteria:
(1) Such person is at least eighteen years of age;
(2) Such person is physically and mentally sound and has not
been exempted for medical reasons from such work by a licensed
physician or other medical professional; and
(3) Such person is considered by the county commission, the
sheriff or the executive director of the West Virginia regional
jail authority or designee not to pose a threat to the community if
released for work purposes.
(b) The work described in subsection (a) of this section shall
be performed under the supervision, care and custody of the county
commission, the executive director of the West Virginia regional jail authority or designee, the sheriff, his or her deputies,
correctional officers or other persons charged with inmate
supervision to perform maintenance or control litter in this state.
(c) In order to effectuate the provisions of this section, the
county commission, the sheriff or the executive director of the
West Virginia regional jail and correctional facility authority or
designee shall promulgate rules for the safe and useful employment
of inmate labor.
(d) Notwithstanding any provision of this code to the
contrary, the county commission, its members and agents, the
executive director of the West Virginia regional jail authority or
designee its members or agents, the sheriff, his or her deputies,
correctional officers and agents shall be immune from liability of
any kind for accidents, injuries or death to such inmate except for
accident, injury or death resulting directly from gross negligence
or malfeasance.
(e) The sheriff of the county in which the work is to be
performed, with the approval of the county commission or the
executive director of the West Virginia regional jail authority or
designee, may hire or appoint any personnel necessary for the
supervision of inmate labor.
(f) Nothing in this section shall be construed to allow the
use of inmate labor for private projects or as contract employees
of for profit businesses.
(g) Any inmate who performs work pursuant to the provisions of
this section shall receive, as sole and full compensation therefor, a reduction in his or her term of incarceration of not more than
twenty-five percent of the original sentence excluding any other
statutorily granted "good time". Each eight-hour period of
approved work shall entitle an inmate to one day's sentence
reduction:
Provided, That any "good time" earned pursuant to the
provisions of this section shall be in addition to any other
reduction of sentence the inmate may accumulate.
(h) Any person being held as a detainee or for contempt may
voluntarily participate in such labor as provided for in this
section under the terms and conditions hereinbefore set forth.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-26. Unlawful disposal of litter; civil and criminal penalty;
litter control fund; evidence; notice violations; litter
receptacle placement; penalty; duty to enforce violations.
(a) (1) No person shall place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown any litter as defined in
section twenty-four of this article, in or upon any public or
private highway, road, street or alley; any private property; any
public property; or the waters of the state or within one hundred
feet of the waters of this state, except in a proper litter or
other solid waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter
from a motor vehicle or other conveyance or to perform any act which constitutes a violation of the motor vehicle laws contained
in section fourteen, article fourteen, chapter seventeen-c of this
code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a
motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor vehicle,
boat, airplane or other conveyance intended to violate the
provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred pounds
in weight or twenty-seven cubic feet in size is guilty of a
misdemeanor. Upon conviction, he or she is subject to a fine of
not less than fifty dollars nor more than one thousand dollars or,
in the discretion of the court, sentenced to perform community
service by cleaning up litter from any public highway, road,
street, alley or any other public park or public property,
any
county public or not-for-profit cemetery or family cemetery freely
accessible by the public, or waters of the state, as designated by
the court, for not less than eight nor more than sixteen hours, or
both.
(5) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in size
is guilty of a misdemeanor. Upon conviction, he or she is subject
to a fine of not less than five hundred dollars nor more than two
thousand dollars or, in the discretion of the court, may be
sentenced to perform community service by cleaning up litter from
any public highway, road, street, alley or any other public park or
public property,
any county public or not-for-profit cemetery or
family cemetery freely accessible by the public, or waters of the
state, as designated by the court, for not less than sixteen nor
more than thirty-two hours, or both.
(6) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter in an amount greater than
five hundred pounds in weight or two hundred sixteen cubic feet in
size or any amount which had been collected for commercial
purposes, is guilty of a misdemeanor. Upon conviction, the person
is subject to a fine not less than twenty-five hundred dollars or
not more than twenty-five thousand dollars or confinement in a
county or regional jail for not more than one year, or both. In
addition, the violator may be guilty of creating or contributing to
an open dump as defined in section two, article fifteen, chapter
twenty-two of this code and subject to the enforcement provisions
of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by
conservation officers from the division of natural resources or
environmental inspectors from the division of environmental
protection. Any defendant receiving the sentence of litter cleanup
shall provide within a time to be set by the court written
acknowledgment from a conservation officer or environmental
inspector that the sentence has been completed and the litter has
been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter cleanup
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the
original fines and community service penalties.
(10) All law-enforcement agencies, officers and environmental
inspectors shall enforce compliance with this section within the
limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or
lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter
twenty-two of this code. But if any owner, renter or lessee,
private or otherwise, knowingly permits any such materials or
substances to be placed, deposited, dumped or thrown in such location that high water or normal drainage conditions will cause
any such materials or substances to wash into any waters of the
state, it is prima facie evidence that the owner, renter or lessee
intended to violate the provisions of this section:
Provided, That
if a landowner, renter or lessee, private or otherwise, reports any
placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney,
county commission or the division of natural resources or the
division of environmental protection, then the landowner, renter or
lessee will be presumed to not have knowingly permitted the
placing, depositing, dumping or throwing of the materials or
substances.
(b) Any indication of ownership found in litter shall be prima
facie evidence that the person identified violated the provisions
of this section:
Provided, That no inference may be drawn solely
from the presence of any logo, trademark, trade name or other
similar mass reproduced things of identifying character appearing
on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section
shall pay a civil penalty in the sum of not less than one hundred
dollars nor more than one thousand dollars as costs for cleanup,
investigation and prosecution of the case, in addition to any other
court costs that the court is otherwise required by law to impose
upon a convicted person.
The clerk of the circuit court, magistrate court or municipal court in which these additional costs are imposed shall, on or
before the last day of each month, transmit fifty percent of a
civil penalty received pursuant to this section to the state
treasurer for deposit in the state treasury to the credit of a
special revenue fund to be known as the litter control fund which
is hereby continued. Expenditures for purposes set forth in this
section are not authorized from collections but are to be made only
in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code. Amounts collected which are found, from time
to time, to exceed the funds needed for the purposes set forth in
this article may be transferred to other accounts or funds and
designated for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the county
or regional solid waste authority for the purpose of litter
prevention, cleanup and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving
the respective county to develop a coordinated litter control
program pursuant to section eight, article four, chapter
twenty-two-c of this code.
(e) The commissioner of the division of motor vehicles, upon
registering a motor vehicle or issuing an operator's or chauffeur's license, shall issue to the owner or licensee, as the case may be,
a summary of this section and section fourteen, article fourteen,
chapter seventeen-c of the code.
(f) The commissioner of the division of highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road and at other locations throughout the
state informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the director by rule promulgated pursuant to subdivision (8),
subsection (a), section twenty-five of this article shall procure
and place litter receptacles at its own expense upon its premises
and shall remove and dispose of litter collected in the litter
receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the rules of the director, any person who fails to place and
maintain the litter receptacles upon his or her premises in
violation of this subsection or the rules of the director shall be
fined fifteen dollars per day of the violation.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a
misdemeanor or felony, which is punishable by imposition of a fine
or confinement in the county or regional jail or a state
correctional facility, or both fine and confinement, may, in the
discretion of the sentencing judge or magistrate as an alternative
to the sentence imposed by statute for the crime, be sentenced
under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work in
jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned to
a county agency to perform labor within the jail, or in and upon
the buildings, grounds, institutions, bridges, roads, including
orphaned roads used by the general public
, any county public and
not-for-profit cemeteries and family cemeteries freely accessible
by the public and public works within the county. Eight hours of
labor are to be credited as one day of the sentence imposed.
Persons sentenced under this program may be required to provide
their own transportation to and from the work site, lunch and work
clothes; or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to a
number of hours or days of community service work with government
entities or charitable or nonprofit entities approved by the circuit court. Regarding any portion of the sentence designated as
confinement, eight hours of community service work is to be
credited as one day of the sentence imposed. Regarding any portion
of the sentence designated as a fine, the fine is to be credited at
an hourly rate equal to the prevailing federal minimum wage at the
time the sentence was imposed. In the discretion of the court, the
sentence credits may run concurrently or consecutively. Persons
sentenced under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes;
(4) A day-reporting center program if the program has been
implemented in the sentencing court's jurisdiction or in the area
where the offender resides. For purposes of this subdivision
"day-reporting center" means a court-operated or court-approved
facility where persons ordered to serve a sentence in this type of
facility are required to report under the terms and conditions set
by the court for purposes which include, but are not limited to,
counseling, employment training, alcohol or drug testing or other
medical testing.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of fact
and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the
sentence is not a felony offense for which violence or the threat
of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the county
sheriff or, in magistrate court cases, that adequate facilities for
the administration and supervision of alternative sentencing
programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article remain under the administrative custody
and supervision of the court's probation officers or the county
sheriff. Persons sentenced by a magistrate remain under the
administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may
be required to pay the costs of their incarceration, including meal
costs:
Provided, That the judge or magistrate considers the
person's ability to pay the costs.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may withdraw
any alternative sentence at any time by order entered with or
without notice and require that the remainder of the sentence be served in the county jail, regional jail or a state correctional
facility:
Provided, That no alternative sentence directed by the
sentencing judge or magistrate or administered under the
supervision of the sheriff, his or her deputies, a jailer or a
guard may require the convicted person to perform duties which
would be considered detrimental to the convicted person's health as
attested by a physician.
(g) No provision of this section may be construed to limit a
circuit judge or magistrate's ability to impose a period of
supervision or participation in a community corrections program
created pursuant to article eleven-c, chapter sixty-two of this
code.
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