Senate Bill No. 269
(By Senators Mitchell and Kessler )
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[Introduced January 21, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section twenty-eight, article two,
chapter sixty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
permitting offenders to be charged with enhanced offenses
where there is an existing charge and the conviction has
not yet become final.
Be it enacted by the Legislature of West Virginia:
That section twenty-eight, article two, chapter sixty-one
of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
ยง61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery.
-- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or
unlawfully and intentionally causes physical harm to his or her
family or household member, is guilty of a misdemeanor and, upon
conviction thereof, shall
be confined in a county or regional
jail for not more than twelve months, or fined not more than
five hundred dollars, or both.
(b) Domestic assault.
-- Any person who unlawfully attempts
to commit a violent injury against his or her family or
household member or unlawfully commits an act which places his
or her family or household member in reasonable apprehension of
immediately receiving a violent injury, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a county or regional jail for not more than six months, or fined
not more than one hundred dollars, or both.
(c) Second offense. -- Any person who has previously been
convicted of a violation of subsection (a) or (b) of this
section, a violation of the provisions of subsection (b) or (c),
section nine of this article where the victim was his or her
family or household member or who has previously been granted a
period of pretrial diversion pursuant to section twenty-two,
article eleven of this chapter for a violation of subsection (a)
or (b) of this section or subsection (b) or (c), section nine of
this article where the victim was his or her family or household member
shall be guilty of a misdemeanor. A person convicted of
a violation of subsection (a) of this section after having been
previously convicted of a violation of subsection (a) or (b) of
this section, after having been convicted of a violation of
subsection (b) or (c), section nine of this article where the
victim was his or her family or household member
or who has
previously been granted a period of pretrial diversion pursuant
to section twenty-two, article eleven of this chapter for a
violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article
where the victim was
his or her family or household member
shall be confined in a
county or regional jail for not less than sixty days nor more
than one year, or fined not more than one thousand dollars, or
both. A person convicted of a violation of subsection (b) of
this section after having been previously convicted of a
violation of subsection (a) or (b) of this section, after having
been convicted of a violation of subsection (b) or (c), section
nine of this article
where the victim was his or her family or
household member
or having previously been granted a period of
pretrial diversion pursuant to section twenty-two, article
eleven of this chapter for a violation of
subsection (a) or (b)
of this section or subsection (b) or (c), section nine of this
article
where the victim was his or her family or household member
shall
be confined in a county or regional jail for not
less than thirty days nor more than six months, or fined not
more than five hundred dollars, or both.
(d) Third offense.
-- Any person who has been convicted of
a third or subsequent violation of the provisions of subsection
(a) or (b) of this section, a third or subsequent violation of
the provisions of section nine of this article where the victim
is a family or household member or who has previously been
granted a period of pretrial diversion pursuant to section
twenty-two, article eleven of this chapter for a violation of
subsection (a) or (b) of this section, a violation of the
provisions of section nine of this article where the victim is
a family or household member
, or any combination of convictions
or diversions for these offenses, is guilty of a felony if the
offense occurs within ten years of a prior conviction of any of
these offenses and, upon conviction thereof,
shall
be confined
in a state correctional facility not less than one nor more than
five years or fined not more than two thousand five hundred
dollars, or both.
(e) 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, notwithstanding the fact that there has not been
a final adjudication of the charges for the alleged previous
offense. In that case, the warrant or indictment or information
shall 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.
(e) (f) As used in this section, "family or household
member" means "family or household member" as defined in 48-27-
203 of this code.
(f) (g) A person charged with a violation of this section
may not also be charged with a violation of subsection (b) or
(c), section nine of this article for the same act.
(g) (h) No law-enforcement officer may be subject to any
civil or criminal action for false arrest or unlawful detention
for effecting an arrest pursuant to this section or pursuant to
48-27-1002 of this code.
NOTE:
The purpose of this bill is to
allow offenders to be
charged with enhanced offenses where there is an existing
charge and the conviction has not become final.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.