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 as follows:
§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 interest.
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 occurred.
(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 was pending.
(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 considerations; or
(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.