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SB649 SUB1 Senate Bill 649 History

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

FOR

Senate Bill No. 649

(By Senator Foster)

____________

[Originating in the Committee on the Judiciary;

reported February 26, 2010.]

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A BILL to amend of the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all relating to requiring written or oral recordation of permission for consent searches of motor vehicles by law- enforcement officers; exceptions to recordation requirement; establishing criteria and content of officers oral or written statement to persons whose vehicles may be searched; and requiring rules.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §62-1A-10 and §62- 1A-11, all to read as follows:
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.
(a) A law-enforcement officer who stops a motor vehicle for an alleged violation of a traffic misdemeanor law or ordinance may not search the vehicle unless he or she:
(1) Has probable cause or another lawful basis for the search;
(2) Obtains the written consent of the operator of the vehicle on a form that complies with section eleven of this article; or, alternatively,
(3) Obtains the oral consent of the operator of the vehicle and ensures that the oral consent is evidenced by an audio recording that complies with section eleven of this article.
(b) Notwithstanding the provisions of subsection (a) of this section, should a form meeting the requirement of section eleven of this article or an audio recording device be unavailable a handwritten consent executed by the vehicle operator and meeting the consent requirements of section eleven of this article will suffice.
(c) Notwithstanding the provisions of subsection (a) or (b)of this section should a court find that the officer had a reasonable suspicion of dangerousness to his or her safety which precluded recordation of the consent the recordation requirements of this section shall be found inapplicable.
(d) Failure to comply with the provisions of this section shall not, standing alone, constitute proof that any consent to search was involuntary.
(e) A finding by a court that the operator of a motor vehicle voluntarily and verbally consented to a search of the motor vehicle shall make the recordation requirements of this section inapplicable.
(f) Nothing contained in this section shall be construed to create a private cause of action.
(g) This section takes effect on January 1, 2011.
§62-1A-11. Rules for certain evidence of consent to vehicle search.

(a) To facilitate the implementation of section ten of this article the Governor's Committee on Crime, Delinquency and Corrections shall promulgate emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code to establish the requirements for:
(1) A form used to obtain the written consent of the operator of a motor vehicle under section ten of this article; and
(2) An audio recording used as evidence of the oral consent of the operator of a motor vehicle under section ten of this article.
(b) The form required under subsection (a) of this section shall contain:
(1) A statement that the operator of the motor vehicle fully understands that he or she may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is freely and voluntarily giving the law-enforcement officer consent to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) The make and the registration number of the vehicle to be searched; and
(6) The name of the law-enforcement officer seeking consent.
(c) The rules adopted under subdivision (2), subsection (a) of this section must require the audio recording to reflect an affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the operator may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving the law-enforcement officer consent to search the motor vehicle; and
(3) The operator of the motor vehicle was informed that he or she may withdraw the consent at any time during the search.
(d) The Governor's Committee on Crime, Delinquency and Corrections shall promulgate the emergency and legislative rules required by this section no later than December 31, 2010.


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(NOTE: §§62-1A-10 and 62-1A-11 are new; therefore, strike- throughs and underscoring have been omitted.)
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