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Chapter 61     Entire Code
‹ Chapter 60A  |  Chapter 62 › Printer Friendly Versions
Chapter 61  |  Article 61 - 7A
WVC 61- CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
WVC 61 - 7 A- ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.
WVC 61 - 7 A- 1 §61-7A-1. Legislative intent.
It is the intention of the Legislature in the enactment of this article to clarify the persons whom it intends to proscribe from the possession of firearms due to substance abuse or mental illness; establish a process in reporting the names of persons proscribed from possession of firearms due to mental illness to the central state mental health registry; authorize reporting by registry to the National Instant Criminal Background Check System; and to prescribe a means for reinstating one's ability to lawfully possess a firearm.

WVC 61 - 7 A- 2 §61-7A-2. Definitions.
As used in this article and as the terms are deemed to mean in 18 U.S.C. §922(g) and section seven, article seven of this chapter as each exists as of the thirty-first day of January, two thousand eight:

(1) "A person adjudicated as a mental defective" means a person who has been determined by a duly authorized court, tribunal, board or other entity to be mentally ill to the point where he or she has been found to be incompetent to stand trial due to mental illness or insanity, has been found not guilty in a criminal proceeding by reason of mental illness or insanity or has been determined to be unable to handle his or her own affairs due to mental illness or insanity.

(2) "Committed to a mental institution" means to have been involuntarily committed for treatment pursuant to the provisions of chapter twenty-seven of this code.

(3) "Mental institution" means any facility or part of a facility used for the treatment of persons committed for treatment of mental illness or addiction.

WVC 61 - 7 A- 3 §61-7A-3. Persons whose names are to be supplied to the central state mental health registry.
(a) The Superintendent of the West Virginia State Police and the Secretary of the Department of Health and Human Resources, or their designees, shall cooperate with the circuit clerk of each county and Administrator of the West Virginia Supreme Court of Appeals in compiling and maintaining a database containing the names and identifying information of persons who have been adjudicated to be mentally defective or who have been committed for treatment of a mental illness pursuant to the provisions of chapter twenty-seven of this code. The registry shall be maintained by the Administrator of the Supreme Court of Appeals or the Superintendent of the West Virginia State Police.

(b) The name of any person who has been adjudicated to be mentally defective or who has been committed for treatment of a mental illness pursuant to the provisions of chapter twenty-seven of this code which shall be provided to the Superintendent of the West Virginia State Police for inclusion in the central state mental health registry. Upon receipt of the information being received by the central state mental health registry it may be transmitted to the National Instant Criminal Background Check System and to county sheriffs;

(c) The Secretary of Department of Human Resources and the circuit clerk of each county shall, as soon as practicable after the effective date of this article, supply to the Superintendent of the West Virginia State Police for inclusion in the central state mental health registry the name and identifying information required by the provisions of subsection (d) of this section of all persons covered by the provisions of this article and shall on an ongoing basis continue to provide such information as it is developed;

(d) The central state mental health registry shall contain the name, address at the time of commitment or adjudication, date of birth, date of commitment or adjudication and of all persons who have been adjudicated to be mentally defective or who have been committed for treatment of a mental illness pursuant to the provisions of chapter twenty-seven of this code.

(e) The central state mental health registry shall provide only such information about a person on the registry to county sheriffs and the National Instant Criminal Background Check System as is necessary to identify registrants; and

(f) On or before the first day of January, two thousand ten, the central state mental health registry shall contain the name, address at the time of commitment or adjudication, date of birth, date of commitment or adjudication and any other identifying characteristics of all persons who have been adjudicated to be mentally defective or who have been committed for treatment of a mental illness pursuant to the provisions of chapter twenty-seven of this code. Under no circumstances shall the registry contain information relating to any diagnosis or treatment provided.

WVC 61 - 7 A- 4 §61-7A-4. Confidentiality; limits on use of registry information.
(a) Notwithstanding any provision of this code to the contrary, the Superintendent of the State Police, the Secretary of the Department of Health and Human Resources and the circuit clerks and the Administrator of the Supreme Court of Appeals may provide notice to the central state mental health registry and the National Instant Criminal Background Check System established pursuant to Section 103(d) of the Brady Handgun Violence Protection Act, 18 U.S.C. §922, that a person: (i) Has been involuntarily committed as provided in chapter twenty-seven of this code; (ii) has been adjudicated mentally incompetent in a proceeding under article six-a of this chapter; or (iii) has regained the ability to possess a firearm by order of a circuit court in a proceeding under section five of this article.

(b) The information contained in the central state mental health registry is to be used solely for the purpose of records checks related to firearms purchases and for eligibility for a state license or permit to possess or carry a concealed firearm.

(c) Whenever a person's name and other identifying information has been added to the central state mental health registry, a review of the state concealed handgun registry shall be undertaken and if such review reveals that the person possesses a current concealed handgun license, the sheriff of the county issuing the concealed handgun license shall be informed of the person's change in status.

WVC 61 - 7 A- 5 §61-7A-5. Petition to regain right to possess firearms.

     (a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm.

     (b) Petitioners prohibited from possession of firearms due to a mental health disability, must include in the petition for relief from disability:

     (1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner;

     (2) An authorization, signed by the petitioner, for release of mental health records to the prosecuting attorney of the county; and

     (3) A verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.

     (c) The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state, and only give the relief specifically requested in the petition.

     (d) In determining whether to grant the petition, the court shall receive and consider at a minimum evidence:

     (1) Concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C. §922(g)(4);

     (2) The petitioner's record which must include the petitioner's mental health and criminal history records; and

     (3) The petitioner's reputation developed through character witness statements, testimony, or other character evidence.

     (e) If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm, will not be likely to act in a manner dangerous to public safety, and that granting the relief will not be contrary to public interest, the court may enter an order allowing the petitioner to possess a firearm. If the order denies petitioner's ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.

     (f) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.

     (g) The prosecuting attorney or one of his or her assistants shall represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner's criminal history records.

     (h) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These documents may not be open to inspection by any person other than the prosecuting attorney or one of his or her assistants only for purposes of representing the state in and during these proceedings and by the petitioner and his or her counsel. No other person may inspect these documents, except upon authorization of the petitioner or his or her legal representative or by order of the court, and these records may not be published except upon the authorization of the petitioner or his or her legal representative.

     (i) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police, or his or her designee, and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner's prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General, or other federal entity operating the National Instant Criminal Background Check System of the court action.

Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.


Recent legislation affecting the Code

Citation Year/Session Short Title
§61 - 5 - 17 - (Amended Code)
SENATE BILL - 90
PASSED - Regular Session

SB90 SUB1 ENR  (Uploaded - 03/25/2014)
Creating criminal offense for interfering or preventing call for assistance of emergency service personnel
§61 - 4 - 9 - (New Code)
SENATE BILL - 395
PASSED - Regular Session

SB395 SUB2 ENR  (Uploaded - 03/25/2014)
Relating to operation and oversight of certain human services benefit programs
§61 - 2 - 29 B - (Amended Code)
SENATE BILL - 397
PASSED - Regular Session

SB397 SUB1 ENR  (Uploaded - 03/25/2014)
Expanding scope of activities considered financial exploitation of elderly
§61 - 8 D- 1 - (Amended Code)
§61 - 8 D- 3 - (Amended Code)
§61 - 8 D- 4 - (Amended Code)
§61 - 8 D- 9 - (Amended Code)
HOUSE BILL - 4005
PASSED - Regular Session

HB4005 SUB ENR  (Uploaded - 03/25/2014)
Relating to criminal offenses for child abuse and child neglect
§61 - 8 C- 3 - (Amended Code)
HOUSE BILL - 4006
PASSED - Regular Session

hb4006 ENR  (Uploaded - 03/26/2014)
Relating to the possession and distribution of child pornography
§61 - 7 - 4 - (Amended Code)
HOUSE BILL - 4186
PASSED - Regular Session

hb4186 ENR  (Uploaded - 03/25/2014)
Relating to the procedures for issuing a concealed weapon license
§61 - 11 - 23 - (New Code)
HOUSE BILL - 4210
PASSED - Regular Session

HB4210 SUB ENR  (Uploaded - 03/25/2014)
Juvenile sentencing reform
§61 - 2 - 9 - (Amended Code)
§61 - 2 - 28 - (Amended Code)
HOUSE BILL - 4445
PASSED - Regular Session

hb4445 ENR  (Uploaded - 03/25/2014)
hb4445 ENR 2  (Uploaded - 03/25/2014)
Modifying the definition of "battery" and "domestic battery"
Note: WV Code updated with legislation passed through the 2013 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.
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