H. B. 2780
(By Delegates Amores, Morgan, Crosier and Stemple)
[Introduced January 30, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend article twelve, chapter sixty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty-five, relating to requiring the polygraph examinations
of sex offender probationers and parolees.
Be it enacted by the Legislature of West Virginia:
That article twelve, chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
twenty-five, to read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-25. Polygraph examinations of sex offender probationers
and parolees.
(a) When a defendant is convicted of, pleads guilty to, or
enters a plea to an offense for which a person is required to register as a sex offender under the provisions of article twelve,
chapter fifteen of this code, is granted probation or other
alternative to incarceration, the sentencing court shall order the
defendant, at his or her own expense, to submit to at least one
polygraph examination per year to answer questions regarding his or
her compliance with the conditions of supervision, including
conditions related to treatment. The releasing or supervising
authority may require additional polygraph examinations for the
same purpose, not to exceed five per year. If the results of the
test indicate deception, illegal activity or noncompliance with the
conditions of release, the results of the test may be used as
evidence in any hearing relating to violation of the release. The
polygraph may be used as an investigative, risk assessment and
treatment tool, and not as a final arbitrator of guilt or
innocence. Test results of any polygraph examination shall be
provided to the defendant and may be used by any defendant at any
release violation hearing.
(b) When a defendant is convicted of, pleads guilty to, or
enters a plea to an offense for which a person is required to
register as a sex offender under the provisions of article twelve,
chapter fifteen of this code, and is granted parole, the parole
board shall order the parolee, at his or her own expense, to submit
to at least one polygraph examination per year to answer questions
regarding his or her compliance with the conditions of supervision, including conditions related to treatment. The parole board, the
division of corrections or parole officer may require additional
polygraph examinations for the same purpose, not to exceed five per
year. If the results of a test indicate deception, illegal
activity or noncompliance with the conditions of parole, the
results of the test may be used as evidence in any hearing relating
to the violation of the parole. The polygraph may be used as an
investigative, risk assessment and treatment tool, and not as a
final arbitrator of guilt or innocence. Test results of any
polygraph examination shall be provided to the parolee and may be
used by the parolee in any parole violation hearing.
(c) Any polygraph examination conducted under subsection (a)
or (b) of this section shall be conducted by a detection of
deception examiner who:
(1) Is certified in post conviction sex offender testing as
prescribed by the American polygraph association;
(2) Has completed not less than twenty hours of American
polygraph association approved sex offender testing training every
other calendar year; and
(3) Uses standards approved by the American polygraph
association for sex offender testing.
(d) In the conduct of polygraph examinations of sex offenders
under subsections (a) and (b) of this section, no detection of
deception examiner may:
(1) Conduct more than two full disclosure or sexual history
polygraph examinations in a twenty-four hour period;
(2) Conduct more than two maintenance tests in a twenty-four
hour period;
(3) Conduct more than one full disclosure or sexual history
polygraph examination and more than two maintenance tests in a
twenty-four hour period; or
(4) Test the same parolee, probationer or defendant more than
five times in a year, to be calculated from the time of the first
test of the parolee, probationer or defendant during any period of
three hundred sixty-five days.
(e) No polygraph examination under subsection (a) or (b) of
this section may be conducted by a person who is a sworn peace
officer, within the boundaries of the officer's jurisdiction.
NOTE: The purpose of this bill is to require the polygraph
examinations of sex offender probationers and parolees.
This section is new; therefore, strike-throughs and
underscoring have been omitted.