COMMITTEE SUBSTITUTE
FOR
H. B. 3214
(By Delegates Morgan, Amores, Crosier and Stemple)
(Originating in the Committee on the Judiciary)
[March 28, 2005]
A Bill to amend and reenact §62-12-12 the code of West Virginia,
1931, as amended, to amend said code by adding thereto a new
section, designated §62-12-25 of said code, all relating to
the administration of polygraph examinations for risk
assessment and treatment purposes to sex offenders who are on
probation or parole.
Be it enacted by the legislature of West Virginia:
That §62-12-12 of the code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §62-12-25, all to read as
follows:
ARTICLE 12. PROBATION AND PAROLE
§62-12-12. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any
felony, the maximum penalty for which is less than life imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this section
shall apply to an accessory before the fact or a principal in the
second degree who has been convicted as if he or she were a
principal in the first degree if, in the commission of or in the
attempted commission of the felony, only the principal in the first
degree used, presented or brandished a firearm.
(c)(1) The existence of any fact which would make any person
ineligible for probation under subsection (b) of this section
because of the commission or attempted commission of a felony with
the use, presentment or brandishing of a firearm shall not be
applicable unless such fact is clearly stated and included in the
indictment or presentment by which such person is charged and is
either: (i) Found by the court upon a plea of guilty or nolo
contendere; or (ii) found by the jury, if the matter be tried
before a jury, upon submitting to such jury a special interrogatory
for such purpose; or (iii) found by the court, if the matter be
tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year one
thousand nine hundred eighty-one: (A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any indictment
or presentment returned on or after the first day of August of that
year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in any
case submitted to such jury on or after the first day of August of
that year or to the requisite findings of the court upon a plea of
guilty or in any case tried without a jury: Provided, That the
state shall give notice in writing of its intent to seek such
finding by the jury or court, as the case may be, which notice
shall state with particularity the grounds upon which such finding
shall be sought as fully as such grounds are otherwise required to
be stated in an indictment, unless the grounds therefor are alleged
in the indictment or presentment upon which the matter is being
tried;
(D) Shall not apply with respect to cases not affected by such
amendment and in such cases the prior provisions of this section
shall apply and be construed without reference to such amendment;
and insofar as such amendments relate to mandatory sentences
without probation, all such matters requiring such sentence shall
be proved beyond a reasonable doubt in all cases tried by the jury
or the court.
(d) For the purpose of this section, the term "firearm" shall
mean any instrument which will, or is designed to, or may readily be converted to, expel a projectile by the action of an explosive,
gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of, or
pleaded guilty to, a felony or misdemeanor under the provisions of
section twelve or twenty-four, article eight, chapter sixty-one of
this code, or under the provisions of article eight-c or eight-b of
said chapter, such person shall only be eligible for probation
after undergoing a physical, mental and psychiatric study and
diagnosis which shall include a polygraph examination to assist in
identifying sex offender characteristics and treatment planning and
which shall also include an on-going treatment plan requiring
active participation in sexual abuse counseling at a mental health
facility or through some other approved program: Provided, That
nothing disclosed by the person during such study or diagnosis
shall be made available to any law-enforcement agency, or other
party without that person's consent, or admissible in any court of
this state, unless such information disclosed shall indicate the
intention or plans of the probationer to do harm to any person,
animal, institution or property, in which case such information may
be released only to such persons as might be necessary for
protection of the said person, animal, institution or property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen, article
eight, chapter sixty-one of this code, or of a felony violation involving a minor of section six or seven, article eight, chapter
sixty-one of this code, or of a similar provision in another
jurisdiction shall be required to be registered upon release on
probation. Any person who has been convicted of an attempt to
commit any of the offenses set forth in this subsection shall also
be registered upon release on probation.
(g) The probation officer shall within three days of release
of the offender, send written notice to the state police of the
release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person was
convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent
predator as defined in section two-a, article twelve, chapter
fifteen of this code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
§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, at a reasonable cost, 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. The
polygraph may only be used as a risk assessment and treatment tool.
Test results of any polygraph examination shall be provided to the
defendant.
(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, 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 Divisions of
Corrections or parole officer may require additional polygraph
examinations for the same purpose, not to exceed five per year. The
polygraph may only be used as a risk assessment and treatment tool.
Test results of any polygraph examination shall be provided to the
defendant.
(c) In the event a person required to submit to polygraph
examinations as set forth under subsections (a) or (b) of this
section is unable to pay for the polygraph examination, that person
shall present an affidavit reflecting the inability to pay for such
testing to the circuit court of the county where the person is
being supervised. If it appears to the satisfaction of the court or
judge that such person is in fact unable to pay for such testing,
the court shall issue an order reflecting such finding. Said order
shall be forwarded to the Division of Corrections and said testing
shall be paid for by a fund established by the Division of
Corrections.
(d) Any polygraph examination conducted under subsections (a)
or (b) of this section shall be conducted by a certified polygraph
analyst 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.
(e) In the conduct of polygraph examinations of sex offenders
under subsections 9a) and (b) of this section, no certified
polygraph analyst may:
(1) Conduct more than two full disclosure or sexual history
polygraph examination in a twenty-four hour period; or
(2) Disclose any information gained during any full disclosure
or sexual history polygraph examination to any law enforcement
agency or other party without the parolee's or probationer's
consent, nor shall any information or disclosure be admissible in
any court of this state, unless such information disclosed
indicates the intention or plan of the probationer or parolee to do
harm to any person, animal, institution or property, in which case
such information may be released only to such persons as might be
necessary for protection of said person, animal, institution or
property.
(3) Conduct more than two maintenance tests in a twenty-four
hour period;
(4) Conduct more than one full disclosure or sexual history
polygraph examination and more than two maintenance tests in a
twenty-four hour period; or
(5) Test the same parolee or probationer more than five times
in a year, to be calculated from the first test of the parolee or
probationer.
(f) 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 that officer's jurisdiction.
(g) As used in this section:
(1) "certified polygraph analyst" means a person who has been
certified by the American Polygraph Association or other accredited
association recognized in this state as having completed the
requisite number of training hours in polygraph analysis and a person who is a member in good standing with a recognized
accredited association.
(2) "maintenance test" means a polygraph examination
administered to determine the probationer's or parolee's compliance
with the terms of supervision and treatment.
(3) "full-disclosure polygraph" or "sexual history polygraph"
means a polygraph examination administered to determine the entire
sexual history of the probationer or parolee including but not
limited to those crimes defined in section two, article, twelve,
chapter fifteen and their attempts.