ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 196
(Senators Love, Hunter, White,
McKenzie and Sprouse, original sponsors)
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[Passed March 10, 2007;
in effect ninety days from passage.]
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AN ACT to amend and reenact §49-5-8 of the Code of West Virginia,
1931, as amended, relating to the responsibility of placing
juveniles into the custody of the Division of Juvenile
Services; requiring arresting agency to be responsible for
transporting juveniles to Division of Juvenile Services'
facilities; and authorizing juvenile facility to refuse
admittance to juveniles who are in need of medical attention
until written clearance is received from a physician.
Be it enacted by the Legislature of West Virginia:
That §49-5-8 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-8. Taking a juvenile into custody.
(a) In proceedings formally instituted by the filing of a
juvenile petition, the circuit court, a juvenile referee or a
magistrate may issue an order directing that a juvenile be taken
into custody before adjudication only upon a showing of probable cause to believe that one of the following conditions exists: (1)
The petition shows that grounds exist for the arrest of an adult in
identical circumstances; (2) the health, safety and welfare of the
juvenile demand such custody; (3) the juvenile is a fugitive from
a lawful custody or commitment order of a juvenile court; or (4)
the juvenile is alleged to be a juvenile delinquent with a record
of willful failure to appear at juvenile proceedings and custody is
necessary to assure his or her presence before the court. A
detention hearing pursuant to section eight-a of this article shall
be held by the judge, juvenile referee or magistrate authorized to
conduct such hearings without unnecessary delay and in no event may
any delay exceed the next day.
(b) Absent a court order, a juvenile may be taken into custody
by a law-enforcement official only if one of the following
conditions exists: (1) Grounds exist for the arrest of an adult in
identical circumstances; (2) emergency conditions exist which, in
the judgment of the officer, pose imminent danger to the health,
safety and welfare of the juvenile; (3) the official has reasonable
grounds to believe that the juvenile has left the care of his or
her parents, guardian or custodian without the consent of such
person and the health, safety and welfare of the juvenile is
endangered; (4) the juvenile is a fugitive from a lawful custody or
commitment order of a juvenile court; (5) the official has
reasonable grounds to believe the juvenile to have been driving a
motor vehicle with any amount of alcohol in his or her blood; or
(6) the juvenile is the named respondent in an emergency protective
order issued pursuant to section four hundred three, article
twenty-seven, chapter forty-eight of this code and the individual filing the petition for the emergency protective order is the
juvenile's parent, guardian or custodian or other person with whom
the juvenile resides.
(c) Upon taking a juvenile into custody, with or without a
court order, the official shall:
(1) Immediately notify the juvenile's parent, guardian,
custodian or, if the parent, guardian or custodian cannot be
located, a close relative;
(2) Release the juvenile into the custody of his or her
parent, guardian or custodian unless:
(A) Circumstances present an immediate threat of serious
bodily harm to the juvenile if released;
(B) No responsible adult can be found into whose custody the
juvenile can be delivered:
Provided, That each day the juvenile is
detained, a written record must be made of all attempts to locate
such a responsible adult; or
(C) The juvenile has been taken into custody for an alleged
act of delinquency for which secure detention is permissible.
(3) If the juvenile is an alleged status offender or has been
taken into custody pursuant to subdivision (6), subsection (b) of
this section, immediately notify the Department of Health and Human
Resources and, if the circumstances of either paragraph (A) or (B),
subdivision (2) of this subsection exist and the requirements
therein are met, the official may detain the juvenile, but only in
a nonsecure or staff-secure facility;
(4) Take the juvenile without unnecessary delay before a
juvenile referee or judge of the circuit court for a detention
hearing pursuant to section eight-a of this article:
Provided, That if no judge or juvenile referee is then available in the county,
the official shall take the juvenile without unnecessary delay
before any magistrate then available in the county for the sole
purpose of conducting such a detention hearing. In no event may any
delay in presenting the juvenile for a detention hearing exceed the
next day after he or she is taken into custody.
(d) In the event that a juvenile is delivered into the custody
of a sheriff or director of a detention facility, the sheriff or
director shall immediately notify the court or juvenile referee.
The sheriff or director shall immediately provide to every juvenile
who is delivered into his or her custody a written statement
explaining the juvenile's right to a prompt detention hearing, his
or her right to counsel, including appointed counsel if he or she
cannot afford counsel, and his or her privilege against
self-incrimination. In all cases when a juvenile is delivered into
a sheriff's or detention center director's custody, that official
shall release the juvenile to his or her parent, guardian or
custodian by the end of the next day unless the juvenile has been
placed in detention after a hearing conducted pursuant to section
eight-a of this article.
(e) The law-enforcement agency that takes a juvenile into
custody or places a juvenile under arrest is responsible for the
juvenile's initial transportation to a juvenile detention center or
other Division of Juvenile Services' residential facility.
(f) Notwithstanding any other provision of this code, a
juvenile detention center, or other Division of Juvenile Services'
residential facility, is not required to accept a juvenile if the
juvenile appears to be in need of medical attention of a degree necessitating treatment by a physician. If a juvenile is refused
pursuant to the provisions of this subsection, the juvenile
detention center, or other Division of Juvenile Services'
residential facility, may not subsequently accept the juvenile for
detention until the arresting or transporting officer provides the
juvenile detention center, or other Division of Juvenile Services'
residential facility, with a written clearance from a licensed
physician reflecting that the juvenile has been examined and, if
necessary, treated and which states that in the physician's medical
opinion the juvenile can be safely confined in the juvenile
detention center or other Division of Juvenile Services'
residential facility.