ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2427
(By Delegates Brown, Trump, Kessel and Brum)

[Passed April 10, 1993; in effect ninety days from passage.]

AN ACT to amend article two-a, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fourteen, relating to telephone authorization for arrest for assault or battery in domestic violence matters; limited on-site arrest authority; limitations on officer liability; applicability of administrative rules; and bail conditions.

Be it enacted by the Legislature of West Virginia:
That article two-a, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section fourteen, to read as follows:

ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.

§48-2A-14 Telephone authorization for arrest in domestic violence matters; conditions.

(a) Notwithstanding any provision of this code, where a family or household member is alleged to have committed aviolation of the provisions of subsection (b) or subsection (c) of section nine, article two, chapter sixty-one of this code against another family or household member, in addition to any other authority to arrest granted by this code, a law-enforcement officer has authority to arrest the alleged perpetrator for said offense when:
(1) The law-enforcement officer has observed credible corroborative evidence that the offense has occurred;
(2) The law-enforcement officer has obtained a signed statement which has been voluntarily and knowingly executed, from the alleged victim setting forth the essential elements of the offense or has received such a statement from a witness to the alleged violation; and
(3) The law-enforcement officer investigating the alleged offense or another law-enforcement officer acting at the request of said officer has received oral or telephonic authorization from a magistrate having jurisdiction over the offense to arrest the alleged perpetrator after the magistrate has been presented with information sufficient to satisfy said magistrate that probable cause exists to believe that the offense was committed.
(b) Notwithstanding any provision of this section, upon a determination by the law-enforcement officer that credible corroborative evidence exists to believe that a violation of subsection (b) or (c), section nine, article two, chapter sixty-one has occurred, and upon obtaining a signed statement from the alleged victim or a witness setting forth the essential elements of either offense, or prior to the obtaining of the signed statement but having been earlier presented with verbalevidence sufficient to establish the existence of the essential elements of either offense and being informed of a willingness to execute a signed statement as provided for in subsection (a) of this section, the law-enforcement officer may, if circumstances exist which convince the law-enforcement officer that a danger exists to the health and safety of the alleged victim, the law-enforcement officer or another person, arrest the alleged perpetrator at the scene of the alleged violation solely for the purpose of protecting the health or safety of the alleged victim, the law-enforcement officer or another person at the scene of the violation in order to obtain the signed statement and seek the magistrate's authorization for arrest.
(c) Any person arrested at the site of the alleged criminal violation pursuant to the provisions of subsection (b) of this section shall be immediately released if the magistrate fails to authorize arrest or if the alleged victim or the witness refuses to execute the statement provided for in this section. If the magistrate authorizes arrest, all other provisions of this section shall then be applicable.
(d) No law-enforcement officer shall be subject to any civil or criminal action for false arrest or unlawful detention for affecting an arrest pursuant to subsection (b) of this section solely due to a magistrate's failure to authorize arrest or due to the fact that the alleged victim or the witness refuses to execute a signed statement as provided for in this section.
(e) Whenever any person is arrested pursuant to subsection (a) of this section, the arrested person shall be taken before a magistrate within the county in which the offense charged isalleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
(f) Upon his or her appearance before the magistrate or circuit court, the person arrested shall be supplied with a written complaint setting forth the facts and circumstances supporting the charge which complies with the provisions of West Virginia Rule of Criminal Procedure 3.
(g) The provisions of this section shall not authorize any law-enforcement officer to make an arrest outside of his or her jurisdiction unless otherwise authorized by law.
(h) The consideration by a magistrate of a request for arrest authorization made orally or by telephone shall constitute responding in a domestic violence matter as required by Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
(i) Where an arrest for a violation of subsection (c) of section nine, article two, chapter sixty-one of this code is authorized pursuant to this section, such shall constitute prima facie evidence that the person arrested constitutes a threat or danger to the victim or other family or household members for the purpose of setting conditions of bail pursuant to section seventeen-c, article one-c, chapter sixty-two of this code.