H. B. 4416
(By Delegate Webb)
[Introduced February 12, 1998; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten-b, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to providing the
concurrent relief of filing a criminal complaint or civil
contempt in matters involving the alleged violation of a
protective order as the result of violence, the threat of
violence or stalking; requiring the magistrate court to
incarcerate a person upon a finding that clear and
convincing evidence exists that the person violated a
protective order by violence, the threat of violence or
stalking in contempt of court; and providing an appeal to
circuit court for purposes of the setting of bond or a
hearing de novo on the issue of the alleged violation.
Be it enacted by the Legislature of West Virginia:
That section ten-b, article two-a, chapter forty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-10b. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner and/or minor
children or is physically present at any location in knowing and
willful violation of the terms of a temporary or final protective
order issued by a magistrate, a circuit court judge or a family
law master under the provisions of this article or subdivision
(12), subsection (a), section thirteen, article two of this
chapter granting the relief pursuant to the provisions of this
article, any person authorized to file a petition pursuant to the
provisions of section four of this article or the legal guardian
or guardian ad litem may file a petition for civil contempt as
set forth in section ten-a of this article.
(b) When any such violation of a valid order has occurred, the
petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a
warrant for arrest of the person charged: Provided, That the
filing of a petition under the provisions of this article shall
entitle the petitioner to the concurrent relief of filing a criminal complaint and seeking civil contempt under section ten-a
of this article in the event of any alleged criminal violation
involving bodily injury, physical violence, the threat of bodily
injury or physical violence or stalking: Provided, however, That
in the event the court finds from clear and convincing evidence
pursuant to a hearing held under section ten-a of this article
that a person has engaged in conduct toward the petitioner or any
family member of the petitioner involving bodily injury, physical
violence, the threat of bodily injury or physical violence or
stalking, the court shall hold the person in contempt and shall
order that such person be forthwith committed to incarceration in
a regional jail. Upon an appeal to the circuit court, the person
held in contempt may request the setting of bond in lieu of
incarceration or may, additionally, request a hearing de novo
upon the question of whether clear and convincing proof exists
that he or she engaged in acts toward the petitioner or any
family member of the petitioner involving bodily injury, physical
violence, the threat of bodily injury or physical violence, or
stalking. The court, upon finding that the person does not
present a significant threat to the petitioner or any member of
the petitioner's family may release the person upon the posting
of a cash or secure bond.
NOTE: The purpose of this bill is to afford a petitioner
alleging the violation of a domestic violence order as the result
of violent criminal acts or stalking the concurrent remedy of
seeking a criminal complaint and a civil contempt hearing
pursuant to section ten-a, article 2-A, chapter 48 of the code
which must be held in five days. In the event of producing clear
and convincing evidence at the civil contempt hearing that the
criminal conduct occurred, the person must be found in contempt
and forthwith incarcerated in a regional jail. The person
incarcerated has the right of immediate appeal to the circuit
court for the purposes of requesting the setting of bond upon the
contempt finding or a trial de nova upon the question of whether
clear and convincing evidence exists that he or she committed the
alleged criminal conduct.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.