Senate Bill No. 649
(By Senator Foster)
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[Introduced February 22, 2010; referred to the Committee on the
Judiciary.]
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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 searches of motor vehicles by law-
enforcement officers; establishing criteria; 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 law or ordinance regulating traffic may not
search the vehicle unless the law-enforcement officer:
(1) Has probable cause or another legal basis for the search;
(2) Conducts a search for weapons based on an articulation of
a reasonable fear for the officer's safety or the safety of others;
(3) Obtains the written consent of the operator of the vehicle
on a form that complies with subsection (b), section eleven of this
article; or
(4) Obtains the oral consent of the operator of the vehicle
and ensures that the oral consent is evidenced by an audio and
video recording that complies with subsection (c), section eleven
of this article.
(b) 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 Director of the Governor's Committee on Crime,
Delinquency and Corrections, in consultation with the Division of
Motor Vehicles, shall propose 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 and video recording used as evidence of the oral
consent of the operator of a motor vehicle under section ten of
this article.
(b) At a minimum, the rules adopted under subsection (a) of
this section must require the form to contain:
(1) A statement that the operator of the motor vehicle fully
understands that the operator 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) A description of the motor vehicle to be searched; and
(6) The name of each law-enforcement officer conducting the
stop or search.
(c) At a minimum, the rules adopted under subdivision (2),
subsection (a) of this section must require the audio and video
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 the
operator may withdraw the consent at any time during the search.
(d) The Director of the Governor's Committee on Crime, Delinquency and Corrections shall adopt the rules required by this
section no later than December 31, 2010.
NOTE: The purpose of this bill is to provide procedures to
protect motor vehicle operators with regard to searches of their
motor vehicles by law-enforcement officers.
§§62-1A-10 and 62-1A-11 are new; therefore, strike-throughs
and underscoring have been omitted.
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