Senate Bill No. 195
(By Senators Hunter, Fanning, Minard, Mitchell, Oliverio, Redd,
Facemyer, McKenzie, Kessler, Rowe and Edgell)
__________
[Introduced February 21, 2001;
referred to the
Committee on the Judiciary.]
__________
A BILL to amend and reenact section two, article five, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
three-a, article two, chapter fifty of said code; to amend and
reenact section one-a, article eleven-a, chapter sixty-two of
said code; to amend and reenact sections five, six and seven,
article eleven-b of said chapter; to amend and reenact section
nine, article twelve of said chapter; and to further amend
said chapter by adding thereto a new article, designated
article eleven-c, all relating to sentencing alternatives;
allowing imposition of community corrections program
participation for convictions of driving under the influence;
allowing magistrate courts to impose participation in a community corrections program; requiring a preimposition
hearing to determine ability to pay certain conditions of
probation without undue hardship; allowing magistrates to
impose home incarceration through a community corrections
program; requiring the court to consider ability to pay in
assessing costs of incarceration and home incarceration fees;
allowing county commissions to appropriate excess money from
home incarceration services funds to an approved community
corrections program; providing for the creation of community
corrections programs; creating the community corrections
subcommittee of the governor's committee on crime, delinquency
and correction; defining duties of the community corrections
subcommittee; creating the West Virginia community corrections
fund as a special revenue account; requiring community
criminal justice boards; requiring community criminal justice
accounts; allowing judges and magistrates to assess a fee for
the participation in or supervision of a community corrections
program; requiring the court to consider ability to pay in
assessing a participation or supervision fee; requiring a fee
of persons on probation and home incarceration to fund
community corrections programs; and allowing those not under
court supervision to participate in or be supervised by a
community corrections program.
Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter seventeen-c of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section three-a, article
two, chapter fifty of said code be amended and reenacted; that
section one-a, article eleven-a, chapter sixty-two of said code be
amended and reenacted; that sections five, six and seven, article
eleven-b of said chapter be amended and reenacted; that section
nine, article twelve of said chapter be amended and reenacted; and
that said chapter be further amended by adding a new article,
designated article eleven-c, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) He is Is under the influence of alcohol; or
(B) He is Is under the influence of any controlled substance;
or
(C) He is Is under the influence of any other drug; or
(D) He is Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) He has Has an alcohol concentration in his or her blood of
ten hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of such the vehicle,
which act or failure proximately causes the death of any person
within one year next following such the act or failure; and
(3) Commits such the act or failure in reckless disregard of
the safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to such the
death, shall be is guilty of a felony and, upon conviction thereof,
shall be imprisoned in the penitentiary a state correctional
facility for not less than one nor more than ten years and shall be
fined not less than one thousand dollars nor more than three
thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) He is Is under the influence of alcohol; or
(B) He is Is under the influence of any controlled substance;
or
(C) He is Is under the influence of any other drug; or
(D) He is Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) He has Has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of such the vehicle,
which act or failure proximately causes the death of any person
within one year next following such the act or failure, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
the county or regional jail for not less than ninety days nor more
than one year and shall be fined not less than five hundred dollars
nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) He is Is under the influence of alcohol; or
(B) He is Is under the influence of any controlled substance;
or
(C) He is Is under the influence of any other drug; or
(D) He is Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) He has Has an alcohol concentration in his or her blood of
ten hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of such the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional
jail for not less than one day nor more than one year, which jail
term shall is to include actual confinement of not less than
twenty-four hours, and shall be fined not less than two hundred
dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) He is Is under the influence of alcohol; or
(B) He is Is under the influence of any controlled substance;
or
(C) He is Is under the influence of any other drug; or
(D) He is Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) He has Has an alcohol concentration in his or her blood of
ten hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor, and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term shall is to
include actual confinement of not less than twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this state, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term shall is to
include actual confinement of not less than twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who is:
(A) Under Is under the influence of alcohol; or
(B) Under Is under the influence of any controlled substance;
or
(C) Under Is under the influence of any other drug; or
(D) Under Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not more than
six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) Any person who:
Knowingly knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic
drugs or amphetamine or any derivative thereof, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(h) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than ten hundredths of one percent, by weight,
shall, for a first offense under this subsection, be is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, such the person
is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars. A person who is charged with a first offense
under the provisions of this subsection may move for a continuance
of the proceedings from time to time to allow the person to
participate in the vehicle alcohol test and lock program as
provided for in section three-a, article five-a of this chapter.
Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it
relates to the alleged offense. In the event the person fails to
successfully complete the program, the court shall proceed to an
adjudication of the alleged offense. A motion for a continuance
under this subsection shall may not be construed as an admission or
be used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i)
of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) He is Is under the influence of alcohol; or
(B) He is Is under the influence of any controlled substance;
or
(C) He is Is under the influence of any other drug; or
(D) He is Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) He has Has an alcohol concentration in his or her blood of
ten hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday, shall be is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in the
county or regional jail for not less than two days nor more than
twelve months, which jail term shall is to include actual
confinement of not less than forty-eight hours, and shall be fined
not less than two hundred dollars nor more than one thousand
dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section shall, for the second
offense under this section, be is guilty of a misdemeanor, and,
upon conviction thereof, shall be confined in the county or
regional jail for a period of not less than six months nor more
than one year, and the court may, in its discretion, impose a fine
of not less than one thousand dollars nor more than three thousand
dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section shall, for the third or
any subsequent offense under this section, be is guilty of a
felony, and, upon conviction thereof, shall be imprisoned in the
penitentiary a state correctional facility for not less than one
nor more than three years, and the court may, in its discretion,
impose a fine of not less than three thousand dollars nor more than
five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following
types of convictions shall are to be regarded as convictions under
this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of the prior enactment of this section
for an offense which occurred on or after the first day of
September, one thousand nine hundred eighty-one, and prior to the
effective date of this section;
(2) Any conviction under the provisions of subsection (a) or
(b) of the prior enactment of this section for an offense which
occurred within a period of five years immediately preceding the
first day of September, one thousand nine hundred eighty-one; and
(3) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f) or (g) of this
section, which offense occurred after the tenth day of June, one
thousand nine hundred eighty-three.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges
for the alleged previous offense. In such that case, the warrant
or indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any person
permitted to drive as described under subsection (f) or (g) of this
section, is or has been legally entitled to use alcohol, a
controlled substance or a drug shall does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" shall have has the meaning ascribed to it in chapter
sixty-a of this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and shall may not be
subject to suspension or probation: Provided, That the court may
apply the provisions of article eleven-a, chapter sixty-two of this
code to a person sentenced or committed to a term of one year or
less. An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may
be used as an alternative sentence to any period of incarceration
required by this section.
An order for supervision or
participation in a community corrections program created pursuant
to article eleven-c, chapter sixty-two of this code may be used as
an alternative sentence to any period of incarceration required by
this section.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 2. JURISDICTION AND AUTHORITY.
§50-2-3a. Sentencing; probation.
(a) In addition to sentencing authority granted elsewhere in
other provisions of this code to magistrate courts, magistrate
courts have authority to suspend sentences and impose periods of
unsupervised probation for a period not to exceed two years, except
for offenses for which the penalty includes mandatory incarceration
and offenses defined in sections eight and nine, article eight-b,
chapter sixty-one of this code and subsection (c), section (5)
five, article eight-d of said chapter.
(b) Notwithstanding any other provision of law to the
contrary, magistrate courts have the authority to impose periods of
supervision or participation in a community corrections program
created pursuant to article eleven-c, chapter sixty-two of this
code. Periods of supervision or participation in community corrections programs imposed pursuant to this subsection are not to
exceed two years.
(b) (c) Release on probation shall be upon is subject to the
following conditions:
(1) That the probationer shall may not, during the term of his
or her probation, violate any criminal law of this state, any other
state of the United States or the United States;
(2) That he or she shall may not, during the term of his or
her probation, leave the state without the consent of the court
which placed him or her on probation;
(3) That he or she shall comply with the rules or terms
prescribed by the court;
(4) That he or she shall make reasonable restitution if
financially able to do so, in whole or in any part, immediately or
within the period of probation: Provided, That the magistrate
conduct a hearing prior to imposition of probation and makes a
determination on the record that the offender is able to pay
restitution without undue hardship; and
(5) That he or she shall pay any fine and the costs assessed
as the court may direct: Provided, That the magistrate conduct a
hearing prior to imposition of probation and makes a determination
on the record that the offender is able to pay the costs without undue hardship
.
(c) (d) On motion by the prosecuting attorney, and upon a
hearing and a finding that reasonable cause exists to believe that
a violation of any condition of probation has occurred, the
magistrate may revoke probation and order execution of the sentence
originally imposed.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK OR 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 the state
penitentiary 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. Eight hours of labor shall are to 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; or
(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 approved by the
circuit court. Regarding any portion of the sentence designated as
confinement, eight hours of community service work shall is to be
credited as one day of the sentence imposed. Regarding any portion
of the sentence designated as a fine, the fine shall is to 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;
(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 this type of
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; Provided, That the judge or
magistrate consider the person's ability to pay the costs.
(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 penitentiary 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 may require the convicted person to perform
duties which would be considered detrimental to the convicted
person's health as attested by a physician.
(g) No provision of this section may be construed to limit a
circuit judge or magistrate's ability to impose a period of
supervision or participation in a community corrections program
created pursuant to article eleven-c, chapter sixty-two of this
code.
ARTICLE 11B. HOME INCARCERATION ACT.
§62-11B-5. Requirements for order for home incarceration.
An order for home incarceration of an offender under section
four of this article shall is to include, but not be limited to,
the following:
(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the
offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health treatment,
counseling or other treatment programs approved for the offender by
the circuit court or magistrate;
(D) Attending an educational institution or a program approved
for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a
place of worship;
(F) Participating in a community work release or community
service program approved for the offender by the circuit court, in
circuit court cases; or
(G) Engaging in other activities specifically approved for the
offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order of
home incarceration.
(3) A requirement that the offender abide by a schedule,
prepared by the probation officer in circuit court cases, or by the
supervisor or sheriff in magistrate court cases, specifically
setting forth the times when the offender may be absent from the
offender's home and the locations the offender is allowed to be
during the scheduled absences.
(4) A requirement that the offender is not to commit another
crime during the period of home incarceration ordered by the
circuit court or magistrate.
(5) A requirement that the offender obtain approval from the probation officer or supervisor or sheriff before the offender
changes residence or the schedule described in subdivision (3) of
this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the
magistrate, an electronic monitoring device in the offender's home,
or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or any time home
incarceration is ordered by the magistrate.
(7) A requirement that the offender pay a home incarceration
fee set by the circuit court or magistrate. If a magistrate orders
home incarceration for an offender, the magistrate shall follow a
fee schedule established by the supervising circuit judge in
setting the home incarceration fee. The magistrate or circuit judge
shall consider the person's ability to pay in determining the
imposition and amount of the fee
.
(8) A requirement that the offender pay a fee described in
section four, article eleven-c of this chapter: Provided, That the
magistrate or circuit judge considers the person's ability to pay
in determining the imposition and amount of the fee.
(9) A requirement that the offender abide by other conditions
set by the circuit court or by the magistrate.
§62-11B-6. Circumstances under which home incarceration may not
be ordered.
(a) A circuit court or magistrate may not order home
incarceration for an offender unless the offender agrees to abide
by all of the requirements set forth in the court's order issued
under this article.
(b) A circuit court or magistrate may not order home
incarceration for an offender who is being held under a detainer,
warrant or process issued by a court of another jurisdiction.
(c) A magistrate may order home incarceration for an offender
only with electronic monitoring and only if the county of the
offender's home has an established program of electronic monitoring
that is equipped, operated and staffed by the county supervisor or
sheriff for the purpose of supervising participants in a home
incarceration program: Provided, That electronic monitoring may
not be required in a specific case if a circuit court upon petition
thereto finds by order that electronic monitoring is not necessary.
(d) A magistrate may order home incarceration for an offender
convicted of a crime of violence against the person: Provided,
That the offender does not occupy the same home as the victim of the crime.
(e) Home incarceration shall not be is not available as a
sentence if the language of a criminal statute expressly prohibits
its application.
(f) Notwithstanding the provisions of subsection (c) of this
section, a magistrate may order home incarceration through the
imposition of supervision or participation in a community
corrections program created pursuant to article eleven-c, chapter
sixty-two of this code.
§62-11B-7. Home incarceration fees; special fund.
All home incarceration fees ordered by the circuit court shall
pursuant to subdivision seven, section five of this article are to
be paid to the circuit clerk, who shall monthly remit the fees to
the sheriff. All home incarceration fees ordered by a magistrate
shall pursuant to subdivision seven, section five of this article
are to be paid to the magistrate court clerk, who shall monthly
remit the fees to the county sheriff. The county sheriff shall
establish a special fund designated the home incarceration services
fund, in which the sheriff shall deposit all home incarceration
fees collected pursuant to this section and remitted by the clerks.
The county commission shall appropriate money from the fund to
administer a home incarceration program, including the purchase of
electronic monitoring devices and other supervision expenses, and may as necessary supplement the fund with additional
appropriations. The county commission may also appropriate any
excess money from the fund to defray the costs of housing county
inmates or for approved community corrections programs, if the
sheriff or other person designated to administer the fund certifies
in writing to the county commission that a surplus exists in the
fund at the end of the fiscal year.
ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.
§
62-11C-1. Legislative intent.
(a) The Legislature hereby declares that the purpose of this
article is to enable any county or any combination of counties to
develop, establish and maintain community-based corrections
programs to provide the judicial system with sentencing
alternatives for those offenders who may require less than
institutional custody.
(b) The goals of developing community-based corrections
programs include:
(1) Allowing individual counties or combinations of counties
greater flexibility and involvement in responding to the problem of
crime in their communities;
(2) Providing more effective protection of society and
promoting efficiency and economy in the delivery of correctional
services;
(3) Providing increased opportunities for offenders to make
restitution to victims of crime through financial reimbursement;
(4) Permitting counties or combinations of counties to operate
programs specifically designed to meet the rehabilitative needs of
offenders;
(5) Providing appropriate sentencing alternatives with the
goal of reducing the incidence of repeat offenders;
(6) Permitting counties or combinations of counties to
designate community-based programs to address local criminal
justice needs;
(7) Diverting offenders from the state regional jail or
correctional facilities by punishing them with community-based
sanctions, thereby reserving state regional jail or correctional
facilities for those offenders who are deemed to be most dangerous
to the community; and
(8) Promoting accountability of offenders to their community.
§62-11C-2. Community corrections subcommittee.
(a) A community corrections subcommittee of the governor's
committee on crime, delinquency and corrections is hereby created
and assigned responsibility for screening community corrections
programs submitted by community criminal justice boards for
approval by the governor's committee and for making recommendations
as to the disbursement of funds for approved community corrections programs. The subcommittee shall be comprised of fifteen members
of the governor's committee including: a representative of the
division of corrections, a representative of the regional jail and
correctional facility authority, a person representing the
interests of victims of crime, an attorney employed by a public
defender corporation, an attorney who practices criminal law, a
prosecutor and a member of the board of parole. At the discretion
of the West Virginia supreme court of appeals, the administrator of
the supreme court of appeals, a probation officer and a circuit
judge may serve on the subcommittee as ex officio, non-voting
members.
(b) The subcommittee shall elect a chairperson and a vice
chairperson. Special meetings may be held upon the call of the
chairperson, vice chairperson or a majority of the members of the
subcommittee. A majority of the members of the subcommittee
constitute a quorum.
§62-11C-3. Duties of the governor's committee and the community
corrections subcommittee.
(a) Upon recommendation of the community corrections
subcommittee, the governor's committee shall
propose for
legislative promulgation in accordance with the provisions of
article three, chapter twenty-nine-a of this code, emergency and
legislative rules to:
(1) Provide funding for approved community corrections
programs;
(2) Establish standards for approval of community corrections
programs submitted by community criminal justice boards;
(3) Establish minimum standards for community corrections
programs, including requiring annual program evaluation;
(4)
Make any necessary adjustments to the fees established
in section four of this article; and
(5) Carry out the purpose and intent of this article.
(b) Upon recommendation of the community corrections
subcommittee, the governor's committee shall:
(1) Maintain records of approved community corrections
programs including the corresponding community criminal justice
board contact information and annual program evaluations, when
available; and
(2) Seek funding for approved community corrections programs
from sources other than the fees collected pursuant to section
four of this article.
(c) The governor's committee shall submit, on or before the
thirtieth day of September of each year, to the governor, the
Speaker of the House of Delegates, the President of the Senate,
and upon request to any individual member of the Legislature, a
report on its activities during the previous year and an accounting of funds paid into and disbursed from the special
revenue account established pursuant to section four of this
article.
§62-11C-4. Special revenue account.
(a) There is hereby created in the state treasury a special
revenue account to be known as the "West Virginia community
corrections fund". Expenditures from the fund are for the
purposes set forth in subsection (d) of this section and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and upon
the 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, two thousand two, expenditures
are authorized from collections rather than pursuant to an
appropriation by the Legislature. The West Virginia community
corrections fund may receive any gifts, grants, contributions or
other money from any source which is specifically designated for
deposit in the fund.
(b) Beginning on the effective date of this article, in
addition to the fee required in section nine, article twelve of
this chapter, a fee not to exceed thirty dollars per month, unless adjusted by legislative rule as provided in section three
of this article, is also to be collected from those persons on
probation. This fee is to be based upon the person's ability to
pay
. The magistrate or circuit judge shall conduct a hearing
prior to imposition of probation and make a determination on the
record that the offender is able to pay the fee without undue
hardship
. The magistrate clerk or circuit clerk shall collect all
fees imposed pursuant to this subsection and deposit them in a
separate account. Within ten calendar days following the
beginning of the calendar month, the circuit clerk shall forward
the amount deposited to the state treasurer to be credited to the
West Virginia community corrections fund.
(c) Beginning on the effective date of this article, in
addition to the fee required in section five, article eleven-b of
this chapter, a fee not to exceed five dollars per day, unless
adjusted by legislative rule as provided in section three of this
article, is also to be collected from those persons on home
confinement.
The magistrate or circuit judge shall consider the
person's ability to pay in determining the imposition and amount
of the fee
. The magistrate clerk or circuit clerk shall collect
all fees imposed pursuant to this subsection and deposit them in
a separate account. Within ten calendar days following the
beginning of the calendar month, the circuit clerk shall forward the amount deposited to the state treasurer to be credited to the
West Virginia community corrections fund.
(d) The moneys of the West Virginia community corrections
fund are to be disbursed by the governor's committee on crime,
delinquency and corrections, upon recommendation by the community
corrections subcommittee, for the funding of community
corrections programs and to pay expenses of the governor's
committee in administering the provisions of this article, which
expenses may not in any fiscal year exceed ten percent of the
funds deposited to the special revenue account during that fiscal
year.
(e) Any disbursements from the West Virginia community
corrections fund allocated for community corrections programs by
the governor's committee may be made contingent upon local
appropriations or gifts in money or in kind for the support of
the programs. Any county commission of any county may
appropriate and expend money for establishing and maintaining
community corrections programs.
(f) Nothing in this article may be construed to mandate
funding for the West Virginia community corrections fund or to
require any appropriation by the Legislature.
§
62-11C-5. Establishment of programs.
(a) Any county or combination of counties may establish and operate community corrections programs, as provided for in this
section, to be used as alternative sentencing options for those
offenders sentenced within the jurisdiction of the county or
counties which establish and operate the program.
(b) Any county or combination of counties that seek to
establish programs as authorized in this section shall submit
plans and specifications for the programs to be established,
including proposed budgets, for review and approval by the
community corrections subcommittee established in section three
of this article.
(c) Any county or combination of counties may establish and
operate an approved community corrections program to provide
alternative sanctioning options for an offender who is convicted
of an offense for which he or she may be sentenced to a period of
incarceration in a county or regional jail or a state
correctional facility and for which probation or home confinement
may be imposed as an alternative to incarceration.
(d) Community corrections programs authorized by subsection
(a) of this section may provide, but are not limited to
providing, any of the following services:
(1) Probation supervision programs;
(2) Day fine programs;
(3) Community service restitution programs;
(4) Home incarceration programs;
(5) Substance abuse treatment programs;
(6) Sex offender containment programs;
(7) Licensed domestic violence offender treatment programs;
(8) Day reporting centers; or
(9) Educational or counseling programs.
(e) A county or combination of counties which establish and
operate community corrections programs as provided for in this
section may contract with other counties to provide community
corrections services.
(f) For purposes of this section, the phrase "may be
sentenced to a period of incarceration" means that the statute
defining the offense provides for a period of incarceration as a
possible penalty.
(g) No provision of this article may be construed to allow
a person participating in or under the supervision of a community
corrections program to earn "good time" or any other reduction in
sentence.
§
62-11C-6. Community criminal justice boards.
(a) Each county or combination of counties that seek to
establish community-based corrections services shall establish a
community criminal justice board.
(b) The community criminal justice board is to consist of no more than fifteen voting members.
(c) All members of the community criminal justice board are
to be residents of the county or counties represented.
(d) The community criminal justice board is to consist of
the following members:
(1) The sheriff, or if the board represents more than one
county, at least one sheriff from the counties represented;
(2) The prosecutor, or if the board represents more than one
county, at least one prosecutor from the counties represented;
(3) If a public defender corporation exists in the county or
counties represented, at least one attorney employed by any
public defender corporation existing in the counties represented;
(4) One member to be appointed by the local board of
education, or if the board represents more than one county, at
least one member appointed by a board of education of the
counties represented;
(5) One member with a background in mental health care and
services to be appointed by the commission or commissions of the
county or counties represented by the board;
(6) Two members who can represent organizations or programs
advocating for the rights of victims of crimes with preference
given to organizations or programs advocating for the rights of
victims of the crimes of domestic violence or driving under the influence; and
(7) Three at-large members to be appointed by the commission
or commissions of the county or counties represented by the
board.
(c) At the discretion of the West Virginia supreme court of
appeals, any or all of the following people may serve on a
community criminal justice board as ex officio, non-voting
members:
(1) A circuit judge from the county or counties represented;
(2) A magistrate from the county or counties represented; or
(3) A probation officer from the county or counties
represented.
(d) Community criminal justice boards may:
(1) Provide for the purchase, development and operation of
community corrections services;
(2) Coordinate with local probation departments in
establishing and modifying programs and services for offenders;
(3) Evaluate and monitor community corrections programs,
services and facilities to determine their impact on offenders;
and
(4) Develop and apply for approval of community corrections
programs by the governor's committee on crime, delinquency and
corrections.
(e) If a community criminal justice board represents more
than one county, the appointed membership of the board, excluding
any ex officio members, shall include an equal number of members
from each county, unless the county commissions of each county
agree in writing otherwise.
(f) If a community criminal justice board represents more
than one county, the board shall, in consultation with the county
commissions of each county represented, designate one county
commission as the fiscal agent of the board.
§62-11C-7. Supervision or Participation Fee.
(a) A circuit judge or magistrate may require the payment of
a supervision or participation fee from any person required to be
supervised by or participate in a community corrections program.
The magistrate or circuit judge shall consider the person's
ability to pay in determining the imposition and amount of the
fee
.
(b) All fees ordered by the circuit court pursuant to this
section are to be paid to the circuit clerk, who shall monthly
remit the fees to the treasurer of the county designated as the
fiscal agent for the board pursuant to section six of this
article. All fees ordered by the magistrate court pursuant to
this section are to be paid to the magistrate clerk, who shall
monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this
article.
§62-11C-8. Local community criminal justice accounts.
(a) The treasurer of the county designated as the fiscal
agent for the board pursuant to section six of this article shall
establish a separate fund designated the community criminal
justice fund. He or she shall deposit all fees remitted by the
magistrate and circuit clerks pursuant to section seven of this
article and all funds appropriated by the governor's committee
for approved community corrections programs in the community
criminal justice fund. Funds in the community criminal justice
account are to be expended by order of the designated county's
commission upon recommendation of the community criminal justice
board in furtherance of the operation of an approved community
corrections program.
(b) A county commission representing the same county as a
community criminal justice board may require the community
criminal justice board to render an accounting, at intervals the
county commission may designate, of the use of money, property,
goods and services made available to the board by the county
commission and to make available at quarterly intervals an
itemized statement of receipts and disbursements, and its books,
records and accounts during the preceding quarter, for audit and examination pursuant to article nine, chapter six of this code.
§62-11C-9. Use of Community Corrections Programs for those not
under court supervision.
(a) Subject to the availability of community corrections
programs in the county, a written pre-trial diversion agreement
may require participation or supervision in a community
corrections program in lieu of prosecution.
(b) No pre-trial diversion agreement may be entered into for
offenses which include violence to the person as an element of
the offense or for offenses described in section two, article
five, chapter seventeen-c of this code.
(c) No provision of this article may be construed to limit
the prosecutor's discretion to prosecute an individual who has
not fulfilled the terms of a written pre-trial diversion
agreement by not completing the required supervision or
participation in a community corrections program.
§62-12-9. Conditions of release on probation.
(a) Release on probation shall be is conditioned upon the
following conditions:
(1) That the probationer shall may not, during the term of
his or her probation, violate any criminal law of this or any
other state or of the United States.;
(2) That he shall or she may not, during the term of his or her probation, leave the state without the consent of the court
which placed him or her on probation.;
(3) That he shall comply or she complies with the rules and
regulations prescribed by the court or by the board of probation
and parole, as the case may be, for his or her supervision by the
probation officer.;
(4) That in every case wherein the probationer has been
convicted of an offense defined in section twelve, article eight,
chapter sixty-one of this code or article eight-b or eight-d of
said chapter, against a child, the probationer shall may not live
in the same residence as any minor child, nor exercise visitation
with any minor child and shall have has no contact with the
victim of the offense: Provided,
That the probationer may
petition the court of the circuit wherein he or she was so
convicted for a modification of this term and condition of his or
her probation and the burden shall rest rests upon the
probationer to demonstrate that a modification is in the best
interest of the child.;
(5) That the probationer be required to pay a fee, based
upon his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision: Provided, That the court
conduct a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the
fee without undue hardship
. All moneys collected as fees from
probationers shall pursuant to this subdivision are to be
deposited with the circuit clerk who shall, on a monthly basis,
remit said the moneys collected to the state treasurer for
deposit in the state general revenue fund; and
(6) That the probationer be required to pay the fee
described in section four, article eleven-c of this chapter:
Provided, That the court conduct a hearing prior to imposition of
probation and makes a determination on the record that the
offender is able to pay the fee without undue hardship
.
(b) In addition the court may impose, subject to
modification at any time, any other conditions which it may deem
advisable, including, but not limited to, any of the following:
(1) That he shall or she make restitution or reparation, in
whole or in part, immediately or within the period of probation,
to any party injured by the crime for which he or she has been
convicted.: Provided, That the court conduct a hearing prior to
imposition of probation and makes a determination on the record
that the offender is able to pay restitution without undue
hardship
;
(2) That he shall or she pay any fine assessed and the costs of the proceeding in such installments as the court may direct.:
Provided, That the court conduct a hearing prior to imposition of
probation and makes a determination on the record that the
offender is able to pay the costs without undue hardship
;
(3) That he shall or she make contribution from his or her
earnings, in such sums as the court may direct, for the support
of his or her dependents.; and
(4) That he shall or she, in the discretion of the court, be
required to serve a period of confinement in the county jail of
the county in which he or she was convicted for a period not to
exceed one third of the minimum sentence established by law or
one third of the least possible period of confinement in an
indeterminate sentence, but in no case shall such may the period
of confinement exceed six consecutive months. The court shall
have has the authority to sentence the defendant within such the
six-month period to intermittent periods of confinement
including, but not limited to, weekends or holidays and may grant
unto to the defendant intermittent periods of release in order
that he or she may work at his or her employment or for such
other reasons or purposes as the court may deem appropriate:
Provided,
That the provisions of article eleven-a of this chapter
shall do not apply to such intermittent periods of confinement and release except to the extent that the court may direct. If
a period of confinement is required as a condition of probation,
the court shall make special findings that other conditions of
probation are inadequate and that a period of confinement is
necessary.
NOTE: The purpose of this bill is to allow counties to
provide alternative sentencing options.
Strike-thought indicate language that would be stricken from
the present law, and underscoring indicates new language that
would be added.
§§62-11C-1 through 9 are new; therefore, strike-thoughs and
underscoring have been omitted.
This bill was recommended by the Joint Standing Committee on
the Judiciary for introduction and passage at the 2001
legislative session.