COMMITTEE SUBSTITUTE
FOR
H. B. 2427
(By Delegates Brown, Trump, Kessel and Brum)
(Originating in the House Committee on the Judiciary)
[March 25, 1993]
A BILL to amend and reenact section ten, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend article two,
chapter sixty-one of said code by adding thereto seven new
sections, designated sections twenty-eight, twenty-eight-a,
twenty-eight-b, twenty-eight-c, twenty-eight-d, twenty-
eight-e and twenty-eight-f; and to amend and reenact section
seventeen-c, article one-c, chapter sixty-two of said code,
all relating to domestic violence; providing for warrantless
arrests in cases of bodily injury or physical evidence of
domestic assault or domestic battery; creating the offense
of domestic assault and providing criminal penalties
therefor; creating the offense of domestic battery and
providing criminal penalties therefor; creating a third
felony offense and providing criminal penalties therefor;
providing for seizure of weapons; limitations on charges;
limitations on officer liability; and expanding arrest
authority for protective order and bond violations.
Be it enacted by the Legislature of West Virginia:
That section ten, article two-a, chapter forty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that article two, chapter
sixty-one of said code be amended by adding thereto seven new
sections, designated sections twenty-eight, twenty-eight-a,
twenty-eight-b, twenty-eight-c, twenty-eight-d, twenty-eight-e
and twenty-eight-f; and that section seventeen-c, article one-c,
chapter sixty-two of said code be amended and reenacted, all to
read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2A. PREVENTION OF FAMILY VIOLENCE.
§48-2A-10. Enforcement procedure for temporary and final
protective orders.
(a) Upon issuance of a temporary order as provided in
section five of this article, and service thereof upon the
respondent, or under relief granted in a protective order as
provided in subsections (a) and (b), section six of this article
of which the respondent has notice, a copy of such order shall,
no later than the close of the next business day, be delivered by
the court or the clerk to a local office of the city police, the
county sheriff and the West Virginia department division of
public safety, where it shall be placed in a confidential file,
with access provided only to the law-enforcement agency and the
respondent named on said order:
Provided,
That upon the
expiration of any order issued pursuant to section five or six of
this article, any such law-enforcement agency which has any such
order on file shall immediately expunge its confidential file ofany reference thereto and destroy all copies of such order in its
possession, custody or control. A sworn affidavit may be
executed by the party awarded exclusive possession of the
residence or household, pursuant to an order entered under
subsection (b), section six of this article, and delivered to
such law-enforcement agency simultaneously with any such order,
giving his or her consent for a law-enforcement officer to enter
such residence or household, without a warrant, to enforce such
protective order or temporary order. Orders shall be promptly
served upon the respondent. Failure to serve shall not stay the
effect of a valid order if the respondent has actual notice of
the existence and contents of the order.
(b) Any person who observes a violation of such order or the
violated party may call a local law-enforcement agency, which
shall verify the existence of a current order, and shall direct
a law-enforcement officer to promptly investigate the alleged
violation.
(c) Where a law-enforcement officer observes a violation of
a valid order, he or she may immediately arrest the subject of
the order. In cases of violation of such orders occurring
outside the presence of the investigating an officer, the
petitioner the individual protected by the provisions of the
order may apply to a court in session in the county in which the
violation occurred or the county in which the order was issued
for a warrant of arrest. If the court finds probable cause to
believe that a valid order has been violated, the court shall
issue such warrant for the arrest of the subject of the order
wherever he or she may be found.
(d) A law-enforcement officer may arrest a respondent who
has abused any party in violation of a valid order as authorized
by sections twenty-eight-a and twenty-eight-b, article two,
chapter sixty-two of this code.
(d)(e) Where there is an arrest, the officer shall take the
arrested person before a court or a magistrate and upon a finding
of probable cause to believe a violation of an order has taken
place, the court or magistrate shall set a time and place for a
hearing, to take place within five days, and serve forthwith upon
the alleged violator an order to show cause why he or she should
not be held in contempt for violation of the prior order, which
unless waived by the defendant shall be by trial by a jury of six
persons. The remedies provided by this section shall be limited
to violations of a temporary order or protective order entered
pursuant to subsection (a) or (b), section six of this article.
A respondent who shall abuse the petitioner and/or minor children
in knowing and willful violation of the terms of a temporary or
final protective order issued under the provisions of this
article shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in the county jail for a period of not
less than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours,
and shall be fined not less than two hundred fifty dollars nor
more than two thousand dollars.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-28. Domestic violence. -- Criminal acts.
(a)
Domestic battery.
-- If any family or household memberunlawfully and intentionally makes physical contact of an
insulting or provoking nature with the person of another family
or household member or unlawfully and intentionally causes
physical harm to another family or household member, he or she is
guilty of a misdemeanor, and, upon conviction thereof, shall be
confined in jail for not more than twelve months, or fined not
more than five hundred dollars or both fined and confined.
(b)
Domestic assault.
-- If any family or household member
unlawfully attempts to commit a violent injury to the person of
another family or household member or unlawfully commits an act
which places another family or household member in reasonable
apprehension of immediately receiving a violent injury, he or she
is guilty of a misdemeanor, and, upon conviction thereof, shall
be confined in jail for not more than six months, or fined not
more than one hundred dollars, or both fined and confined.
(c)
Third offense.
-- A family or household member who has
been convicted of a third or subsequent domestic battery and/or
domestic assault as defined in this section, assault and/or
battery as defined in section nine of this article when committed
against a family or household member, or any combination of such
offenses, is guilty of a felony if such offense occurs within ten
years of a prior conviction of any of these offenses, and, upon
conviction thereof, shall be confined in the penitentiary not
less than one nor more than five years and fined not exceeding
five hundred dollars.
(d) For the purposes of this section the term "family or
household member" means "family or household member" as defined
in section two, article two-a, chapter forty-eight of this code.
§61-2-28a. Domestic violence. -- Arrest authority.
(a) Notwithstanding any other provision of law, officers and
members of the division of public safety, sheriffs and each of
their deputies, police of any municipality and campus law-
enforcement officers are authorized and empowered to make arrests
for the offenses set out in section twenty-eight of this article,
or for violation of conditions of bail set pursuant to section
seventeen-c, article one-c, chapter sixty-two of this code:
(1) When a warrant has been issued for a violation of said
section;
(2) When the offense or violation was committed in the
presence of the law-enforcement officer; or
(3) When the other circumstances authorizing arrest set out
in section twenty-eight-b of this article exist and the officer
has not been to the office of a magistrate with jurisdiction to
issue a warrant and has not had the practicable opportunity to go
to such office during his or her regular or scheduled duty hours:
Provided,
That an arrest pursuant to this paragraph may only be
made before the end of the next day after the offense occurred
which is not a Saturday, Sunday or holiday.
(b) The provisions of this section shall not authorize any
law-enforcement officer to make an arrest outside of his or her
jurisdiction unless generally authorized by other law.
§61-2-28b. Domestic violence. -- Other circumstances
authorizing arrest.
(a) An arrest as authorized in subdivision (3), subsection
(a), section twenty-eight-a of this article may be made in the
following circumstances:
(1) Physical evidence of recent bodily injury of the victim
and credible evidence that the accused caused the injury, or
(2) A verbal or written allegation of facts constituting a
violation of section twenty-eight of this article and credible
evidence that the accused was the person violating that section,
plus physical evidence corroborating a violation of section
twenty-eight.
(b) Whenever any person is arrested pursuant to this
section, the arrested person shall be immediately taken before a
magistrate or court within the county in which the offense
charged is alleged to have been committed and who has
jurisdiction of the offense and is nearest or most accessible
with reference to the place where the arrest is made.
§61-2-28c. Domestic violence. -- Seizure of weapons.
Subsequent to an arrest under this article, the law-
enforcement officer making the arrest shall seize all dangerous
or deadly weapons, as defined in article seven, chapter sixty-one
of this code, used or threatened to be used during the violation
of the protective order or during commission of any crime. The
arresting agency shall maintain possession of the weapons until
the court issues an order specifying the weapons to be
relinquished and the persons to whom the weapons shall be
relinquished. The court's order shall provide for the return of
the weapons to the defendant subject to such restrictions and
conditions as the court considers appropriate to protect the
victim or minor children from further threats of abuse or further
abuse through the use of weapons. Nothing in this article gives
law-enforcement officers authority to enter, search, or seizeevidence from the premises of an incidence of domestic violence
unless otherwise authorized by law.
§61-2-28d. Domestic violence. -- Search and seizure not
authorized.
The provisions of section twenty-eight-a or twenty-eight-b
of this article do not give law-enforcement officers authority to
enter, search, or seize evidence from the premises of an
incidence of domestic violence or any other premises unless
otherwise authorized by law.
§61-2-28e. Domestic violence. -- Limitations on charges.
A person charged with violation of section twenty-eight of
this article may not also be charged with a violation of
subsection (b) or subsection (c) of section nine of this article.
61-2-28f. Limitation of liability.
Law-enforcement agencies and officers are not liable for
personal injuries or property damage that occurs in the course of
any good faith effort to protect a victim of domestic violence,
including, but not limited to, action taken during the course of
arrest, an attempt to separate the parties, or to enforce a court
order, or action taken during the transportation of the victim to
a shelter, hospital or other authorized place.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1C. BAIL.
§62-1C-17c. Bail in cases of crimes between family or household
members.
(a) When the offense charged is a crime against a family or
household member, it may be a condition of bond that the
defendant shall not have any contact whatsoever, direct orindirect, verbal or physical, with the victim or complainant.
(b) In determining conditions of release, the issuing
authority shall consider whether the defendant poses a threat or
danger to the victim or other family or household member. If the
issuing authority makes such a determination, it shall require as
a condition of bail that the defendant refrain from entering the
residence or household of the victim, the victim's school, and
the victim's place of employment or otherwise contacting the
victim and/or minor child or household member in any manner
whatsoever, and shall refrain from having any further contact
with the victim. A violation of this condition may be punishable
by the forfeiture of bail and the issuance of a bench warrant for
the defendant's arrest or remanding the defendant to custody or
a modification of the terms of bail.
(c) The clerk of the court issuing an order pursuant to this
section shall issue certified copies of the conditions of bail to
the victim upon request without cost.
(d) Where a law-enforcement officer observes any violation
of bail condition, including the presence of the defendant or at
the home of the victim, the officer shall immediately arrest the
defendant, and detain the defendant pending a hearing for
revocation of bail.
(e) A law-enforcement officer shall arrest for a violation
of a condition of bail set pursuant to this article as authorized
by sections twenty-eight-a and twenty-eight-b, article two,
chapter sixty-two of this code and detain the defendant pending
a hearing for revocation of bail.