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Introduced Version House Bill 3214 History

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hb3214 intr
H. B. 3214

(By Delegates Morgan, Amores, Crosier and Stemple)

[Introduced March 24, 2005; referred to the
Committee on the Judiciary.]






A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §62-12-25, and to amend and reenact §62-12-12(e)of said code, all relating to the administration of polygraph examinations for risk assessment and treatment purposes to sex offenders who are on probation or parole.

Be it enacted by the legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §62-12-25; and that §62-12-12(e) of said code be amended and reenacted, all to read as follows:
ARTICLE 12. PROBATION AND PAROLE
§62-12-25. Polygraph examinations of Sex Offender Probationers and Parolees
(a) When a defendant is convicted of, pleads guilty to, or enters a plea to an offense for which a person is required to register as a sex offender under the provisions of article twelve, chapter fifteen of this code, is granted probation or other alternative to incarceration, the sentencing court shall order the defendant, at his or her own expense, to submit to at least one polygraph examination, at a reasonable cost, per year to answer questions regarding his or her compliance with the conditions of supervision, including conditions related to treatment. The releasing or supervising authority may require additional polygraph examinations for the same purpose, not to exceed five per year. The polygraph may only be used as a risk assessment and treatment tool. Test results of any polygraph examination shall be provided to the defendant.
(b) When a defendant is convicted of, pleads guilty to, or enters a plea to an offense for which a person is required to register as a sex offender under the provisions of article twelve, chapter fifteen of this code, is granted parole, the parole board shall order the parolee, at his or her own expense, to submit to at least one polygraph examination per year to answer questions regarding his or her compliance with the conditions of supervision, including conditions related to treatment. The Divisions of Corrections or parole officer may require additional polygraph examinations for the same purpose, not to exceed five per year. The polygraph may only be used as a risk assessment and treatment tool. Test results of any polygraph examination shall be provided to the defendant.
(c) In the event a person required to submit to polygraph examinations as set forth under subsections (a) or (b) of this section is unable to pay for the polygraph examination, that person shall present an affidavit reflecting the inability to pay for such testing to the circuit court of the county where the person is being supervised. If it appears to the satisfaction of the court or judge that such person is in fact unable to pay for such testing, the court shall issue an order reflecting such finding. Said order shall be forwarded to the Division of Corrections and said testing shall be paid for by a fund established by the Division of Corrections.
(d) Any polygraph examination conducted under subsections (a) or (b) of this section shall be conducted by a certified polygraph analyst who:
(1) Is certified in post conviction sex offender testing as prescribed by the American Polygraph Association;
(2) Has completed not less than twenty hours of American Polygraph Association approved sex offender testing training every other calendar year; and
(3) uses standards approved by the American Polygraph Association for sex offender testing.
(e) In the conduct of polygraph examinations of sex offenders under subsections 9a) and (b) of this section, no certified polygraph analyst may:
(1) Conduct more than two full disclosure or sexual history polygraph examination in a twenty-four hour period; or
(2) Disclose any information gained during any full disclosure or sexual history polygraph examination to any law enforcement agency or other party without the parolee's or probationer's consent, nor shall any information or disclosure be admissible in any court of this state, unless such information disclosed indicates the intention or plan of the probationer or parolee to do harm to any person, animal, institution or property, in which case such information may be released only to such persons as might be necessary for protection of said person, animal, institution or property.
(3) Conduct more than two maintenance tests in a twenty- four hour period;
(4) Conduct more than one full disclosure or sexual history polygraph examination and more than two maintenance tests in a twenty-four hour period; or
(5) Test the same parolee or probationer more than five times in a year, to be calculated from the first test of the parolee or probationer.
(f) No polygraph examination under subsection (a) or (b) of this section may be conducted by a person who is a sworn peace officer, within the boundaries of that officer's jurisdiction.
(g) As used in this section:
(1) "certified polygraph analyst" means a person who has been certified by the American Polygraph Association or other accredited association recognized in this state as having completed the requisite number of training hours in polygraph analysis and a person who is a member in good standing with a recognized accredited association.
(2) "maintenance test" means a polygraph examination administered to determine the probationer's or parolee's compliance with the terms of supervision and treatment.
(3) "full-disclosure polygraph" or "sexual history polygraph" means a polygraph examination administered to determine the entire sexual history of the probationer or parolee including but not limited to those crimes defined in section two, article, twelve, chapter fifteen and their attempts.
§62-12-2. Eligibility for probation. (a) All persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead guilty to any misdemeanor, shall be eligible for probation, notwithstanding the provisions of sections eighteen and nineteen, article eleven, chapter sixty-one of this code. (b) The provisions of subsection (a) of this section to the contrary notwithstanding, any person who commits or attempts to commit a felony with the use, presentment or brandishing of a firearm shall be ineligible for probation. Nothing in this section shall apply to an accessory before the fact or a principal in the second degree who has been convicted as if he or she were a principal in the first degree if, in the commission of or in the attempted commission of the felony, only the principal in the first degree used, presented or brandished a firearm. (c)(1) The existence of any fact which would make any person ineligible for probation under subsection (b) of this section because of the commission or attempted commission of a felony with the use, presentment or brandishing of a firearm shall not be applicable unless such fact is clearly stated and included in the indictment or presentment by which such person is charged and is either: (i) Found by the court upon a plea of guilty or nolo contendere; or (ii) found by the jury, if the matter be tried before a jury, upon submitting to such jury a special interrogatory for such purpose; or (iii) found by the court, if the matter be tried by the court, without a jury. (2) The amendments to this subsection adopted in the year one thousand nine hundred eighty-one: (A) Shall apply to all applicable offenses occurring on or after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment or presentment returned on or after the first day of August of that year irrespective of when the offense occurred; (C) Shall apply with respect to the submission of a special interrogatory to the jury and the finding to be made thereon in any case submitted to such jury on or after the first day of August of that year or to the requisite findings of the court upon a plea of guilty or in any case tried without a jury: Provided, That the state shall give notice in writing of its intent to seek such finding by the jury or court, as the case may be, which notice shall state with particularity the grounds upon which such finding shall be sought as fully as such grounds are otherwise required to be stated in an indictment, unless the grounds therefor are alleged in the indictment or presentment upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by such amendment and in such cases the prior provisions of this section shall apply and be construed without reference to such amendment; and Insofar as such amendments relate to mandatory sentences without probation, all such matters requiring such sentence shall be proved beyond a reasonable doubt in all cases tried by the jury or the court. (d) For the purpose of this section, the term "firearm" shall mean any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of, or pleaded guilty to, a felony or misdemeanor under the provisions of section twelve or twenty-four, article eight, chapter sixty-one of this code, or under the provisions of article eight-c or eight-b of said chapter, such person shall only be eligible for probation after undergoing a physical, mental and psychiatric study and diagnosis which shall include a polygraph examination to assist in identifying sex offender characteristics and treatment planning and which shall also include an on-going treatment plan requiring active participation in sexual abuse counseling at a mental health facility or through some other approved program: Provided, That nothing disclosed by the person during such study or diagnosis shall be made available to any law-enforcement agency, or other party without that person's consent, or admissible in any court of this state, unless such information disclosed shall indicate the intention or plans of the probationer to do harm to any person, animal, institution or property, in which case such information may be released only to such persons as might be necessary for protection of the said person, animal, institution or property. (f) Any person who has been convicted of a violation of the provisions of article eight-b, eight-c or sections five and six, article eight-d, chapter sixty-one of this code, or of section fourteen, article two, or of sections twelve and thirteen, article eight, chapter sixty-one of this code, or of a felony violation involving a minor of section six or seven, article eight, chapter sixty-one of this code, or of a similar provision in another jurisdiction shall be required to be registered upon release on probation. Any person who has been convicted of an attempt to commit any of the offenses set forth in this subsection shall also be registered upon release on probation.
(g) The probation officer shall within three days of release of the offender, send written notice to the state police of the release of the offender. The notice shall include:
(1) The full name of the person; (2) The address where the person shall reside; (3) The person's social security number; (4) A recent photograph of the person; (5) A brief description of the crime for which the person was convicted; (6) Fingerprints; and (7) For any person determined to be a sexually violent predator as defined in section two-a, article twelve, chapter fifteen of this code, the notice shall also include: (i) Identifying factors, including physical characteristics; (ii) History of the offense; and (iii) Documentation of any treatment received for the mental abnormality or personality disorder.


Note: The purpose of this bill is to mandate the administration of polygraph testing for those persons convicted of a sex crimes and later released on probation or parole. The polygraph testing is only to be used as a risk assessment and management tool.
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