Senate Bill No. 55
(By Senators Buckalew, Dugan and Deem)
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[Introduced January 15, 1996; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section one, article five, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to juvenile
proceedings; jurisdiction of circuit courts over persons
under eighteen years of age; and providing that any person
under eighteen years of age charged with a violent crime or
a crime involving drugs be tried as an adult.
Be it enacted by the Legislature of West Virginia:
That section one, 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:
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 for a violation involving a crime
of violence or drugs: (1) Persons under the age of eighteen
years shall be liable for punishment in the same manner as
adults; and (2) the confidentiality of records provision in
section one, article seven of this chapter does not apply.
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 the
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. Extra judicial statements, other than res gestae,
by a child under fourteen years of age to law-enforcement
officials or while in custody, shall may not be admissible unless made in the presence of the child's counsel.
Extra judicial 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 may 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.
NOTE: The purpose of this bill is to have persons under the
age of 18 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.