Enrolled Committee Substitute
House Bill 2739 History
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Key: Green = existing Code. Red = new code to be enacted
ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2739
(By Delegates Webster, Frazier, Fleischauer,
Miley and Longstreth)
[Passed April 10, 2009; in effect ninety days from passage.]
AN ACT
to amend and reenact §48-27-505, §48-27-701, §48-27-902,
§48-27-903 and §48-27-1002 of the Code of West Virginia, 1931,
as amended; and to amend said code by adding two new sections,
designated §48-27-1003 and §48-27-1004, all relating to
revising and expanding the procedures and methods for service,
enforcement, and registration of domestic violence protective
orders; requiring circuit court clerks to forward copies of
protective orders to magistrates or magistrate court clerks;
requiring magistrates or magistrate court clerks to forward
copies of protective orders to state and federal agencies;
requiring law enforcement to attempt service of protective
orders within seventy-two hours of receipt of order;
authorizing certain persons to file a criminal complaint for
violation of a protective order; providing a criminal penalty
for violation of a protective order; authorizing the seizure
of weapons possessed in violation of a protective order; authorizing nonjudicial enforcement and service of state
protective orders; and providing civil and criminal immunity
to government officials for acts or omissions arising out of
enforcement of a protective order, or the detention or arrest
of an alleged violator of a protective order, if the official
acted in a good faith effort to comply with the statutes
related to the prevention and treatment of domestic violence.
Be it enacted by the Legislature of West Virginia:
That §48-27-505, §48-27-701, §48-27-902, §48-27-903 and
§48-27-1002 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that said code be amended by adding
thereto two new sections, designated §48-27-1003 and §48-27-1004,
all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-505. Time period a protective order is in effect; extension
of order; notice of order or extension.
(a) Except as otherwise provided in subsection (d), section
four hundred one of this article, a protective order, entered by
the family court pursuant to this article, is effective for either
ninety days or one hundred eighty days, in the discretion of the
court. If the court enters an order for a period of ninety days,
upon receipt of a written request from the petitioner prior to the
expiration of the ninety-day period, the family court shall extend
its order for an additional ninety-day period.
(b) To be effective, a written request to extend an order from ninety days to one hundred eighty days must be submitted to the
court prior to the expiration of the original ninety-day period.
A notice of the extension shall be sent by the clerk of the court
to the respondent by first-class mail, addressed to the last known
address of the respondent as indicated by the court file. The
extension of time is effective upon mailing of the notice.
(c) Certified copies of any order entered or extension notice
made under the provisions of this section shall be served upon the
respondent by first class mail, addressed to the last known address
of the respondent as indicated by the court file, and delivered to
the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office or local office of the West Virginia State Police
within twenty-four hours of the entry of the order. The protective
order shall be in full force and effect in every county of this
state.
(d) The family court may modify the terms of a protective
order upon motion of either party.
(e) The clerk of the circuit court shall cause a copy of any
protective order entered by the family court pursuant to the
provisions of this article or pursuant to the provisions of chapter
forty-eight of this code to be forwarded to the magistrate or
magistrate court clerk and the magistrate or magistrate court clerk
shall forward a copy of the protective order to the appropriate
state and federal agencies for registration of domestic violence
offenders as required by state and federal law.
§48-27-701. Service of pleadings and orders by law-enforcement
officers.
Notwithstanding any other provision of this code to the
contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
shall refuse to serve any pleadings or orders entered pursuant to
this article. Law enforcement shall attempt to serve all
protective orders without delay: Provided, That service of process
shall be attempted within seventy-two hours of law enforcement's
receipt of the order. If service is not made, law enforcement shall
continue to attempt service on the respondent until proper service
is made.
§48-27-902. Violations of protective orders; criminal complaints.
(a) Any person authorized to file a petition pursuant to
section three hundred five of this article, and any person
authorized to file a petition for civil contempt pursuant to
section nine hundred one of this article may file a criminal
complaint:
(1) Against a respondent who knowingly and willfully violates
a provision of an emergency or final protective order entered
pursuant to:
(A) subsection (a) or (b) of section five hundred two of this
article;
(B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of this article;
(C) subsection (b) or (c) of section five hundred nine,
article five of this chapter; or
(D) subsection (b) or (c) of section six hundred eight,
article five of this chapter;.
(2) Against a person who violates a condition of bail,
probation or parole which has the express intent or effect of
protecting the personal safety of a particular person or persons;
(3) Against a respondent who knowingly and willfully violates
the terms of a protection order from another jurisdiction that is
required to be enforced pursuant to section three, article twenty-
eight of this chapter; or
(4) Against a person who, in violation of subdivision (3),
subsection (a), section seven, article twenty-eight of this
chapter, knowingly and willfully violates the terms of a condition
of bail, probation or parole imposed in another state which has the
express intent or effect of protecting the personal safety of a
particular person or persons.
(b) If the court finds probable cause upon the complaint, the
court shall issue a warrant for the arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) Any person who knowingly and willfully violates:
(1) a provision of an emergency or final protective order
entered pursuant to: (A) subsection (a) or (b) of section five
hundred two of this article; (B) if the court has ordered such relief; subsection (2), (7) or (9) of section five hundred three of
this article; (C) subsection (b) or (c) of section five hundred
nine, article five of this chapter; or (D) subsection (b) or (c) of
section six hundred eight, article five of this chapter; or
(2) a condition of bail, probation or parole which has the
express intent or effect of protecting the personal safety of a
particular person or persons; is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a period of not
less than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours, and
shall be fined not less than $250 nor more than $2,000.
(b) Any person who is convicted of a second or subsequent
offense under subsection (a) of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than three months nor more than one year, which jail
term shall include actual confinement of not less than twenty-four
hours, and fined not less than $500 nor more than $3,000, or both.
§48-27-1002. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the
contrary, if a person is alleged to have committed a violation of
the provisions of subsection (a) or (b), section twenty-eight,
article two, chapter sixty-one of this code against a family or
household member, in addition to any other authority to arrest
granted by this code, a law-enforcement officer has authority to
arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim
or a witness, an oral or written allegation of facts constituting
a violation of section twenty-eight, article two, chapter sixty-one
of this code; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds to
the allegations of one or more elements of the offense and may
include, but is not limited to, the following:
(1) Condition of the alleged victim. -- One or more
contusions, scratches, cuts, abrasions, or swellings; missing hair;
torn clothing or clothing in disarray consistent with a struggle;
observable difficulty in breathing or breathlessness consistent
with the effects of choking or a body blow; observable difficulty
in movement consistent with the effects of a body blow or other
unlawful physical contact.
(2) Condition of the accused. -- Physical injury or other
conditions similar to those set out for the condition of the victim
which are consistent with the alleged offense or alleged acts of
self-defense by the victim.
(3) Condition of the scene. -- Damaged premises or
furnishings; disarray or misplaced objects consistent with the
effects of a struggle.
(4) Other conditions. -- Statements by the accused admitting one or more elements of the offense; threats made by the accused in
the presence of an officer; audible evidence of a disturbance heard
by the dispatcher or other agent receiving the request for police
assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a)
of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the Magistrate
Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section
twenty-eight, article two, chapter sixty-one of this code is
authorized pursuant to this section, that fact constitutes prima
facie evidence that the accused constitutes a threat or danger to
the victim or other family or household members for the purpose of
setting conditions of bail pursuant to section seventeen-c, article
one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions
of this article or for a violation of an order issued pursuant
article five, section five hundred nine, the arresting officer,
subject to the requirements of the Constitutions of this State and
of the United States:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of domestic
violence;
(2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for
the protection of the officer or other persons; and
(3) May seize all weapons that are possessed in violation of
a valid protective order.
§48-27-1003. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining
that there is probable cause to believe that a valid protective
order exists and that the order has been violated, shall enforce
the order pursuant to any authority to arrest under the code.
Presentation of a protective order that identifies both the
protected individual and the respondent and that appears, on its
face, to be authentic and currently in effect constitutes probable
cause to believe that a valid protective order exists. For the
purposes of this section, the protective order may be inscribed on
a tangible medium or may have been stored in an electronic or other
medium if it is retrievable in perceivable form. Presentation of
a certified copy of a protective order is not required for
enforcement.
(b) If a protective order is not presented, a law-enforcement
officer of this state may consider other credible information in
determining whether there is probable cause to believe that a valid
protective order exists.
(c) If a law-enforcement officer of this state determines that
an otherwise valid protective order cannot be enforced because the
respondent has not been notified of or served with the order, the
officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the
respondent a reasonable opportunity to comply with the order before
enforcing the order.
§48-27-1004. Immunity.
This state or a local governmental agency, or a
law-enforcement officer, prosecuting attorney, clerk of court or
any state or local governmental official acting in an official
capacity, is immune from civil and criminal liability for an act or
omission arising out of the enforcement of a protective order or
the detention or arrest of an alleged violator of a protective
order if the act or omission was done in good faith in an effort to
comply with this article.