H. B. 2596
(By Delegates Hunt, Amores and Seacrist)
[Introduced on February 21, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one and seventeen, article
five, chapter forty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
juvenile proceedings; removal of any confidentiality
requirements, on persons under eighteen years of age; and
providing that any person under eighteen years of age
convicted of a violent crime be treated as an adult
regarding any confidentiality matters.
Be it enacted by the Legislature of West Virginia:
That sections one and seventeen, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-1. Jurisdiction of circuit courts over persons under
eighteen years of age; constitutional guarantees; right to counsel; hearings.
(a) The circuit court of the county shall have original
jurisdiction in proceedings brought under this article.
If during a criminal proceeding against a person in any
court, it shall be ascertained or shall appear that the person is
under the age of nineteen years and was under the age of eighteen
years at the time of the alleged offense, the matter shall be
immediately certified to the juvenile jurisdiction of the circuit
court, and the circuit court shall assume jurisdiction of the
case in the same manner as cases originally instituted in the
circuit court by petition: Provided, That for violation of a
traffic law of West Virginia, magistrate courts shall have
concurrent jurisdiction with the circuit court, and persons under
the age of eighteen years shall be liable for punishment for
violation of such traffic laws in the same manner as adults
except that magistrate courts shall have no jurisdiction to
impose a sentence of confinement for the violation of traffic
laws: Provided, however, That upon conviction involving a crime
of violence, persons under the age of eighteen years shall be
afforded no confidentiality beyond that afforded any adult.
As used in this section, "violation of a traffic law of West
Virginia" means violation of any law contained in chapters
seventeen-a, seventeen-b, seventeen-c and seventeen-d of this
code except sections one and two, article four (hit and run) and
sections one (negligent homicide), two (driving under influence of alcohol, controlled substances or drugs) and four (reckless
driving), article five, chapter seventeen-c of this code.
(b) Any child shall be entitled to be admitted to bail or
recognizance in the same manner as a person over the age of
eighteen years and shall have the protection guaranteed by
article III of the Constitution of West Virginia.
(c) The child shall have the right to be effectively
represented by counsel at all stages of proceedings under the
provisions of this article. If the child, parent or custodian
executes an affidavit showing that he or she cannot pay for an
attorney appointed by the court or referee, the court shall
appoint counsel, to be paid as provided for in article
twenty-one, chapter twenty-nine of this code.
(d) In all proceedings under this article, the child shall
be afforded a meaningful opportunity to be heard, including the
opportunity to testify and to present and cross-examine
witnesses. In all such proceedings the general public shall be
excluded except persons whose presence is requested by a child or
respondent and other persons the court finds to have a legitimate
Except as herein modified, at all adjudicatory hearings, the
rules of evidence applicable in criminal cases shall apply,
including the rule against written reports based upon hearsay.
Unless otherwise specifically provided in this chapter, all
procedural rights afforded adults in criminal proceedings shall be applicable. Extrajudicial statements, other than res gestae,
by a child under fourteen years of age to law-enforcement
officials or while in custody, shall not be admissible unless
made in the presence of the child's counsel.
Extrajudicial statements, other than res gestae by a child
under sixteen years of age but above the age of thirteen to
law-enforcement officers or while in custody, shall not be
admissible unless made in the presence of the child's counsel or
made in the presence of and with the consent of the child's
parent or custodian who has been fully informed regarding the
child'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. A
transcript or recording shall be made of all transfer,
adjudicatory and dispositional hearings. At the conclusion of
any hearing, the court shall make findings of fact and
conclusions of law, and the same shall appear of record.
(e) The court reporter shall furnish a transcript of the
relevant proceedings to any indigent child who seeks review of
any proceeding under this article if an affidavit is filed
stating that the child and his or her parent or custodian are
unable to pay therefor.
§49-5-17. Expungement of records; no discrimination.
(a) Notwithstanding any code provision to the contrary this
section shall only apply to indivudals convicted of nonviolent crimes.
(a) (b) One year after the child's eighteenth birthday, or
one year after personal or juvenile jurisdiction shall have
terminated, whichever is later, the records of a juvenile
proceeding conducted under this chapter, including
law-enforcement files and records, fingerprints, physical
evidence and all other records pertaining to said proceeding
shall be expunged by operation of law. When records are
expunged, they shall be returned to the court in which the case
was pending and kept in a separate confidential file and not
opened except upon order of the court.
(b) (c) Expungement shall be accomplished by physically
marking the records to show that such records have been expunged,
and by the secure sealing and filing of said records in such a
manner that no one can determine the identity of said juvenile
except as provided in subsection (d) of this section.
Expungement shall have the legal effect as if the offense never
(c) (d) The child's counsel, parent, guardian or custodian,
the court, law-enforcement agencies and other public and private
agencies, in response to a request for record information, shall
reply that juvenile records are not public records and are
available only by order of the circuit court in which the case
(d) (e) Notwithstanding this or any other provision of this code to the contrary, juvenile records and law-enforcement
records shall not be disclosed or made available for inspection,
except that the court may, by written order pursuant to a written
petition, permit disclosure or inspection when:
(1) A court having juvenile jurisdiction has the child
before it in a juvenile proceeding;
(2) A court exercising criminal jurisdiction over the child
requests such records for the purpose of a presentence report or
other dispositional proceeding;
(3) The child or counsel for the child requests disclosure
or inspection of such records;
(4) The officials of public institutions to which a child is
committed require such records for transfer, parole or discharge
(5) A person doing research requests disclosure, on the
condition that information which would identify the child or
family involved in the proceeding shall not be divulged.
(e) (f) No individual, firm, corporation or other entity
shall, on account of a person's prior involvement in a proceeding
under this article, discriminate against any person in access to,
terms of, or conditions of employment, housing, education,
credit, contractual rights or otherwise.
(f) (g) No records of a juvenile convicted under the
criminal jurisdiction of the court pursuant to subdivision one,
subsection (d), section ten of this article shall be expunged.
(g) (h) Any person who willfully violates this section shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be fined not more than one thousand dollars, or confined in jail
not more than six months, or both such fine and imprisonment, and
shall be liable for damages in the amount of three hundred
dollars or actual damages, whichever is greater.
NOTE: The purpose of this bill is to have persons under the
age of eighteen years treated as adults in cases involving
violent crimes or drug crimes.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.