COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 657

(By Senators Wooton, Ross, Snyder, Unger, Anderson, Jackson, Plymale, Craigo, Prezioso, McCabe, Helmick, Fanning, Edgell, Kessler, Minard, Sharpe, Mitchell, Hunter, Rowe, Caldwell, Oliverio, McKenzie, Facemyer, Redd, Minear, Sprouse and Tomblin, Mr. President)

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[Originating in the Committee on the Judiciary;

reported April 3, 2001.]

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A BILL to amend and reenact section four, article fifteen, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections twenty-six and twenty-eight, article seven, chapter twenty of said code; and to amend and reenact section one-a, article eleven-a, chapter sixty-two of said code, all relating to including work on public and not-for-profit cemeteries and family cemeteries accessible by the public as work which may be performed by jail or prison labor or ordered as alternative sentencing; and making certain technical revisions.

Be it enacted by the Legislature of West Virginia:
That section four, article fifteen, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections twenty-six and twenty-eight, article seven, chapter twenty of said code be amended and reenacted; and that section one-a, article eleven-a, chapter sixty-two of said code be amended and reenacted, all to read as follows:
CHAPTER 17. ROADS AND HIGHWAYS.

ARTICLE 15. COUNTY CONVICT ROAD FORCE.
§17-15-4. Work by prisoners; relief of sheriffs and others from liability for injuries, etc.

(a) Any person convicted of a criminal offense and sentenced to confinement in a county or regional jail shall, as incident to such sentence of confinement, be required to perform labor within the jail, as a trustee or otherwise, or in and upon the buildings, grounds, institutions, roads, bridges, streams or other public works of the county, county public and not-for-profit cemeteries and family cemeteries freely accessible by the public or the area within which the regional jail is located if he or she meets the following criteria:
(1) Such person is at least eighteen years of age;
(2) Such person is physically and mentally sound and has not been exempted for medical reasons from such work by a licensed physician or other medical professional; and
(3) Such person is deemed considered by the county commission, the sheriff or the regional jail commission executive director of the West Virginia regional jail authority or designee not to pose a threat to the community if released for work purposes.
(b) The work described in the subsection (a) of this section shall be performed under the supervision, care and custody of the county commission, the regional jail commission executive director of the West Virginia regional jail authority or designee, the sheriff, his or her deputies, correctional officers or other person charged with inmate supervision to perform maintenance or control litter in this state.
(c) In order to effectuate the provisions of this section, the county commission, the sheriff or the regional jail commission executive director of the West Virginia regional jail authority or designee shall promulgate rules and regulations for the safe and useful employment of inmate labor.
(d) Notwithstanding any provision of this code to the contrary, the county commission, its members and agents, the regional jail commission executive director of the West Virginia regional jail authority or designee, its members or agents, the sheriff, his or her deputies, correctional officers and agents shall be immune from liability of any kind for accidents, injuries or death to such inmate except for accident, injury or death resulting directly from gross negligence or malfeasance.
(e) The sheriff of the county in which the work is to be performed, with the approval of the county commission or the regional jail commission executive director of the West Virginia regional jail authority or designee, may hire or appoint any personnel necessary for the supervision of inmate labor.
(f) Nothing in this section shall be construed to allow the use of inmate labor for private projects or as contract employees of for-profit businesses.
(g) Any inmate who performs work pursuant to the provisions of this section shall receive, as sole and full compensation therefor, a reduction in his or her term of incarceration of not more than twenty-five percent of the original sentence excluding any other statutorily granted "good time". Each eight-hour period of approved work shall entitle an inmate to one day's sentence reduction: Provided, That any "good time" earned pursuant to the provisions of this section shall be in addition to any other reduction of sentence the inmate may accumulate.
(h) Any person being held as a detainee or for contempt may voluntarily participate in such labor as provided for in this section under the terms and conditions hereinbefore set forth.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.

§20-7-26. Unlawful disposal of litter; civil and criminal penalty; litter control fund; evidence; notice violations; litter receptacle placement; penalty; duty to enforce violations.
(a) (1) Any person who places, deposits, dumps or throws or causes to be placed, deposited, dumped or thrown any litter as defined in section twenty-four of this article in or upon any public or private highway, road, street or alley or upon any private property without the consent of the owner or in or upon any public park or other public property other than in such place as may be set aside for such purpose by the governing body having charge thereof, is guilty of a misdemeanor and, upon his or her first conviction, shall be fined sentenced as follows: For a first offense, fined not less than fifty dollars nor more than five hundred dollars; for a second offense, fined not less than two hundred fifty dollars nor more than one thousand dollars ; and for a third and any subsequent offense, fined not less than five hundred dollars nor more than two thousand dollars and confined in the county or regional jail not less than forty-eight hours nor more than one year : Provided, That a person shall not be held responsible for the actions of animals under their direct control. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any public highway, road, street, alley or any other public park or public property or from county public and not-for-profit cemeteries and family cemeteries freely accessible by the public, as designated by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. For the first offense, the The alternative sentence of litter pickup in lieu of a fine or incarceration shall be as follows: For the first offense, not less than eight hours nor more than sixteen hours in lieu of a fine; for the second offense, not less than sixteen hours nor more than thirty-two hours; and for a third and any subsequent offense, not less than thirty-two hours nor more than sixty-four hours : Provided, however, That the alternative sentence of litter pickup imposed with regard to a third or subsequent offense shall be in lieu of the fine or sentence of incarceration, but not both. For purposes of this subdivision subsection, the term "court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be fined not less than two hundred fifty dollars nor more than one thousand dollars: Provided, That a person shall not be held responsible for the actions of animals under their direct control. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any public highway, road, street, alley or any other public park or public property as designated by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. For the second offense, the alternative sentence of litter pickup shall be not less than sixteen hours nor more than thirty-two hours in lieu of a fine. For purposes of this subdivision, the term "court" shall include circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he or she shall be fined not less than five hundred dollars nor more than two thousand dollars and confined in the county or regional jail not less than forty-eight hours nor more than one year: Provided, That a person shall not be held responsible for the actions of animals under their direct control. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any public highway, road, street, alley or any other public park or public property as designated by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. Upon a third conviction, the alternative sentence of litter pickup shall be not less than thirty-two hours nor more than sixty-four hours in lieu of such fine or incarceration, but not both. For purposes of this subdivision, the term "court" includes circuit and magistrate courts.
(4) (2) The alternative sentence of litter pickup herein set forth shall be verified by the conservation officers from the division of natural resources or environmental inspectors from the division of environmental protection or a regional engineering technician from the division of environmental protection pollution prevention and open dumps program (PPOD) of the county in which the offense occurred. Any defendant receiving the herein specified alternative sentence of litter pickup shall provide, within a time to be set by the court, written acknowledgment from said conservation officers or environmental officers that the sentence has been completed.
(5) (3) Any person who has been found by the court to have willfully failed to comply with the terms of an alternative sentence imposed by the court pursuant to this section is subject, at the discretion of the court, to up to twice the original penalty provisions available to the court at the time of conviction.
(6) (4) If any litter is thrown or cast from a motor vehicle or boat, such action is prima facie evidence that the driver of such motor vehicle or boat intended to violate the provisions of this section. If any litter is dumped or discharged from a motor vehicle or boat, such action is prima facie evidence that the owner and driver of such motor vehicle or boat intended to violate the provisions of this section.
(b) Any litter found on any public or private property with any indication of ownership on it will be evidence creating a rebuttable inference it was deposited improperly by the person whose identity is indicated and any person who improperly disposes of litter is subject to either a civil fine of up to five hundred dollars for such litter or required to pay the costs of removal of such litter if the removal of such litter is required to be done by the division, at the discretion of the director. All such fines and costs shall be deposited to the litter control fund: Provided, That no inference shall be drawn solely from the presence of any logo, trademark, trade name or other similar mass reproduced identifying character appearing on litter found.
(c) Every person who is convicted of or pleads guilty to disposing of litter in violation of subsection (a) of this section shall pay the sum of not less than fifty dollars nor more than five hundred dollars as costs for cleanup, investigation and prosecution in such case, in addition to any other court costs that the court is otherwise required by law to impose upon such convicted person.
The clerk of the circuit court, magistrate court or municipal court wherein such additional costs are imposed shall, on or before the last day of each month, transmit all such costs received under this subsection to the state treasurer for deposit in the state treasury to the credit of a special revenue fund to be known as the litter control fund which is hereby continued. Expenditures for purposes set forth in this section are not authorized from collections but are to be made only in accordance with appropriation and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-three, expenditures shall be authorized from collections. Amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
(d) (1) The commissioner of the division of motor vehicles, upon registering a motor vehicle or issuing an operator's or chauffeur's license, shall issue to the owner or licensee, as the case may be, a copy of subsection (a) of this section.
(2) The commissioner of the division of highways shall cause appropriate signs to be placed at the state boundary on each primary and secondary road and at other locations throughout the state informing those entering the state of the maximum penalty provided for disposing of litter in violation of subsection (a) of this section.
(e) Any state agency or political subdivision that owns, operates or otherwise controls any public area as may be designated by the director by rule promulgated pursuant to subdivision (8), subsection (a), section twenty-five of this article shall procure and place litter receptacles at its own expense upon its premises and shall remove and dispose of litter collected in such litter receptacles. After receiving two written warnings from any law-enforcement officer or officers to comply with this subsection or the said rules of the director, any person who fails to place and maintain such litter receptacles upon his or her premises in violation of this subsection or the rules of the director shall be fined fifteen dollars per day of such violation.
(f) No portion of this section shall be construed to restrict a private owner in the use of the owner's own private property in any manner otherwise authorized by law.
(g) Any law-enforcement officer who shall observe a person violating the provisions of this section has a mandatory duty to arrest or otherwise prosecute the violator to the limits provided herein. The West Virginia division of highways shall investigate and cause to be prosecuted violations of this section occurring upon the highways of the state as the term "highways" is defined in chapter seventeen of this code.
§20-7-28. Litter along streams, criminal penalties, enforcement.

(a) It is unlawful to place, deposit, dump or throw or cause to be placed, deposited, dumped or thrown any litter as defined in section twenty-four of this article and also any garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond or upon the surface of any land within one hundred yards thereof or in such location that high water or normal drainage conditions will cause any such materials or substances to be washed into any river, stream, creek, branch, brook, lake or pond.
(b) No portion of this section restricts an owner, renter or lessee in the use of his or her own private property or rented or leased property or to prohibit the disposal of any industrial and other wastes into waters of this state in a manner consistent with the provisions of article eleven, chapter twenty-two of this code. But if any owner, renter or lessee, private or otherwise, knowingly permits any such materials or substances to be placed, deposited, dumped or thrown in such location that high water or normal drainage conditions will cause any such materials or substances to wash into any river, stream, creek, branch, brook, lake or pond, it is prima facie evidence that such owner, renter or lessee intended to violate the provisions of this section: Provided, That if a landowner, renter or lessee, private or otherwise, reports any such placing, depositing, dumping or throwing of any such substances or materials upon his or her property to the prosecuting attorney, county commission or the division of natural resources or the division of environmental protection, then the landowner, renter or lessee will be presumed to not have knowingly permitted such placing, depositing, dumping or throwing of such materials or substances.
(c) In addition to enforcement by the director, the director of the division of environmental protection, the chief of the office of water resources of the division of environmental protection and the division of natural resources' chief law-enforcement officer the provisions of this section may be enforced by all other proper law-enforcement agencies.
(d) (1) Any person violating any provision of this section is guilty of a misdemeanor and, upon his or her first conviction, shall be fined sentenced as follows: For a first offense, fined not less than fifty nor more than five hundred dollars; for a second offense, fined not less than two hundred fifty dollars nor more than one thousand dollars and confined in the county or regional jail not less than twenty-four hours nor more than six months ; and for a third and any subsequent offense, fined not less than five hundred dollars nor more than two thousand dollars and confined in the county or regional jail not less than forty-eight hours nor more than one year. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond or other property with prior permission of the owner, from county public and not-for- profit cemeteries and family cemeteries freely accessible by the public, the area to be specified by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. For the first offense, the alternative sentence of litter pickup shall be not less than eight hours nor more than sixteen hours in lieu of a fine. For the second offense, the alternative sentence of litter pickup shall be not less than sixteen hours nor more than thirty-two hours in lieu of such fine or incarceration, but not both. For a third and any subsequent offense, the alternative sentence of litter pickup shall be not less than thirty-two hours nor more than sixty-four hours in lieu of such fine or incarceration, but not both. For purposes of this subdivision subsection, the term "court" includes circuit, magistrate and municipal courts.
(2) Upon his or her second conviction, such person shall be fined not less than two hundred fifty dollars nor more than one thousand dollars and imprisoned in the county jail not less than twenty-four hours nor more than six months. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior permission of the owner, the area to be specified by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. For the second offense, the alternative sentence of litter pickup shall be not less than sixteen hours nor more than thirty-two hours in lieu of such fine or incarceration, but not both. For purposes of this subdivision, the term "court" includes circuit and magistrate courts.
(3) Upon such person's third and successive conviction, he or she shall be fined not less than five hundred dollars nor more than two thousand dollars and imprisoned in the county or regional jail not less than forty-eight hours nor more than one year. At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pick up and remove from any area of a bank of any river, stream, creek, branch, brook, lake or pond, or other property with prior permission of the owner, the area to be specified by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provisions of this section by anyone prior to the date of such conviction. Upon a third conviction the alternative sentence of litter pickup shall be not less than thirty-two hours nor more than sixty-four hours in lieu of such fine or incarceration, but not both. For purposes of this subdivision, the term "court" includes circuit and magistrate courts.
(4) (2) The alternative sentence of litter pickup herein set forth shall be verified by division of natural resources conservation officers or by environmental inspectors from the division of environmental protection or a regional engineering technician from the pollution prevention and open dumps program (PPOD) of the division of environmental protection, of the county in which the offense occurred. Any defendant receiving the herein specified alternative sentence of litter pickup shall provide within a time to be set by the court written acknowledgment from said conservation officers or environmental officers that the sentence has been completed.
(5) (3) Any person who has been found by the court to have willfully failed to comply with the terms of an alternative sentence imposed by the court pursuant to this section is subject at the discretion of the court to up to twice the original penalty provisions available to the court at the time of conviction.
CHAPTER 62. CRIMINAL PROCEDURE.

ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.

§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in a magistrate court under any criminal provision of this code of a misdemeanor or felony, which is punishable by imposition of a fine or confinement in the county or regional jail or a state correctional facility, or both fine and confinement, may, in the discretion of the sentencing judge or magistrate as an alternative to the sentence imposed by statute for the crime, be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be required to spend weekends or other days normally off from work in jail;
(2) The work program under which sentenced persons would be required to spend the first two or more days of their sentence in jail and then, in the discretion of the court, would be assigned to a county agency to perform labor within the jail, or in and upon the buildings, grounds, institutions, bridges, roads, including orphaned roads used by the general public, and public works within the county and county public and not-for-profit cemeteries and family cemeteries freely accessible by the public. Eight hours of labor shall be credited as one day of the sentence imposed. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes;
(3) The community service program under which persons sentenced would spend no time in jail but would be sentenced to a number of hours or days of community service work with government entities or charitable or nonprofit entities, including county public and not-for-profit cemeteries and family cemeteries freely accessible by the public, approved by the circuit court. Regarding any portion of the sentence designated as confinement, eight hours of community service work shall be credited as one day of the sentence imposed. Regarding any portion of the sentence designated as a fine, the fine shall be credited at an hourly rate equal to the prevailing federal minimum wage at the time the sentence was imposed. In the discretion of the court, the sentence credits may run concurrently or consecutively. Persons sentenced under this program may be required to provide their own transportation to and from the work site, lunch and work clothes; or
(4) A day-reporting center program if the program has been implemented in the sentencing court's jurisdiction or in the area where the offender resides. For purposes of this subdivision, "day-reporting center" means a court-operated or court-approved facility where persons ordered to serve a sentence in such a facility are required to report under the terms and conditions set by the court for purposes which include, but are not limited to, counseling, employment training, alcohol or drug testing or other medical testing.
(b) In no event may the duration of the alternate sentence exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for which a mandatory period of confinement is imposed by statute;
(2) In circuit court cases, that the person sentenced is not a habitual criminal within the meaning of sections eighteen and nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the sentence is not a felony offense for which violence or the threat of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the court's probation officers or the county sheriff or, in magistrate court cases, that adequate facilities for the administration and supervision of alternative sentencing programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the provisions of this article shall remain under the administrative custody and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate shall remain under the administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may be required to pay the costs of their incarceration, including meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section remain under the jurisdiction of the court. The court may withdraw any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be served in the county jail, regional jail or a state correctional facility: Provided, That no alternative sentence directed by the sentencing judge or magistrate or administered under the supervision of the sheriff, his or her deputies, a jailer or a guard shall require the convicted person to perform duties which would be considered detrimental to the convicted person's health as attested by a physician.

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(NOTE: The purpose of this bill is to include clean-up of public and not-for-profit cemeteries and family cemeteries freely accessible by the public among the tasks which may be performed as jail or prison labor or as alternative sentencing.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)