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Introduced Version House Bill 2010 History

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H. B. 2010

 

         (By Delegates Miley, Barker, Moore, Ferro and Ellem)

         [Introduced January 11, 2012; referred to the

         Committee on the Judiciary.]

 

 

 

 

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §62-16-1, §62-16-2, §62-16-3, §62-16-4, §62-16-5, §62-16-6, §62-16-7, §62-16-8, §62-16-9, §62-16-10, §62-16-11, §62-16-12, §62-16-13, §62-16-14, §62-16-15 and §62-16-16, all relating to the enactment of the Uniform Collateral Consequences of Conviction Act; limitations on the scope of the act; identification, collection and publication of collateral consequences by the Attorney General; pretrial notice of collateral consequences; notice of collateral consequences at sentencing and upon release; authorization to impose a collateral sanction or disqualification; effect of out-of-state convictions; effect of pardoned or vacated convictions; petitions for relief from collateral consequences; certificates of restoration of rights; exemptions from orders or certificates; issuance of orders or certificates; reliance on order or certificate as evidence of due care; victim’s rights; and uniformity of application and construction of article.

Be it enacted by the Legislature of West Virginia:

    That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §62-16-1, §62-16-2, §62-16-3, §62-16-4, §62-16-5, §62-16-6, §62-16-7, §62-16-8, §62-16-9, §62-16-10, §62-16-11, §62-16-12, §62-16-13, §62-16-14, §62-16-15 and §62-16-16, all to read as follows:

ARTICLE 16. UNIFORM COLLATERAL CONSEQUENCES ACT.

§62-16-1. Short title.

    This article may be cited as the “Uniform Collateral Consequences of Conviction Act”.

§62-16-2. Definitions.

    In this article:

    (1) “Collateral consequence” means a collateral sanction or a disqualification.

    (2) “Collateral sanction” means a penalty, disability, or disadvantage, however denominated, imposed on an individual as a result of the individual’s conviction for an offense that applies by operation of law whether or not it is included in the judgment or sentence. The term does not include imprisonment, probation, parole, supervised release, forfeiture, restitution, fine, assessment, or costs of prosecution.

    (3) “Decision-maker” means the state acting directly or through its departments, agencies, officers, or instrumentalities, including municipalities, political subdivisions, educational institutions, boards, or commissions, or their employees, and government contractors, including subcontractors, made subject to this article by contract, by law other than this article.

    (4) “Disqualification” means a penalty, disability, or disadvantage, however denominated, that an administrative agency, governmental official, or a court in a civil proceeding is authorized, but not required, to impose on an individual on grounds relating to the individual’s conviction for an offense.

    (5) “Offense” means a felony or misdemeanor under the law of this state, another state, or the United States. The term includes a juvenile adjudication.

    (6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

§62-16-3. Limitation on scope.

(a) This article does not provide a basis for:

    (1) Invalidating a plea, conviction, or sentence;

    (2) A cause of action for money damages; or

    (3) A claim for relief from or defense to the application of a collateral consequence based on a failure to comply with sections four, five and six.

    (b) This article does not affect:

    (1) The duty an individual’s attorney owes to the individual;

    (2) A claim or right of a victim of an offense; or

    (3) A right or remedy available to an individual convicted of an offense under law other than this article.

§62-16-4. Identification, collection, and publication of laws regarding collateral consequences.

    (a) The Attorney General:

    (1) Shall identify or cause to be identified any provision in this state’s Constitution, statutes and administrative rules that imposes a collateral sanction or authorizes the imposition of a disqualification, and any provision of law that may afford relief from a collateral consequence;

    (2) Within one hundred eighty days after the effective date of this article, shall collect or cause to be collected citations to, and the text or short descriptions of, the provisions identified under subdivision (1) of this section;

    (3) Shall update or cause to be updated the collection within ninety after each regular session of the Legislature; and

    (4) In complying with subdivisions (1) and (2), may rely on the study of this state’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in Section 510 of the Court Security Improvements Act of 2007, Pub. L. 110-177.

    (b) The Attorney General shall include or cause to be included the following statements in a prominent manner at the beginning of the collection described in subsection (a) of this section:

    (1) This collection has not been enacted into law and does not have the force of law.

    (2) An error or omission in this collection is not a reason for invalidating a plea, conviction or sentence or for not imposing a collateral sanction or disqualification.

    (3) The laws of the United States, other jurisdictions and counties or municipalities that impose additional collateral sanctions and disqualifications are not listed in this collection.

    (4) This collection does not include any law or other provision regarding the imposition of or relief from a collateral sanction or a disqualification enacted or adopted after the collection was prepared or last updated.

    (c) The Attorney General shall publish or cause to be published the collection created and updated as required under subsection (a) of this section. The collection must be available to the public on the Internet without charge within ninety days after it is created or updated.

§62-16-5. Notice of collateral consequences in pretrial proceeding.

    (a) At or before arraignment for an offense with which the individual is charged, the court shall communicate to the individual information substantially similar to the following:

NOTICE OF ADDITIONAL LEGAL CONSEQUENCES

    If you are convicted of an offense you may suffer additional legal consequences beyond imprisonment, probation, parole, supervised release and fines. These consequences may include:

    ● Being unable to get or keep some licenses, permits or jobs;

    ● Being unable to get or keep benefits such as public housing or education;

    ● Receiving a harsher sentence if you are convicted of another offense in the future;

    ● Having the government take your property; and

    ● Being unable to vote or possess a firearm.

    If you are not a United States citizen, conviction may also result in your deportation, removal, exclusion from admission to the United States or denial of citizenship.

    The law may provide ways to obtain some relief from these consequences. Further information about the consequences of conviction is available on the Internet at [the website created by the Attorney General].

§62-16-6. Notice of collateral consequences at sentencing and upon release.

    (a) An individual convicted of an offense must be given notice as provided in subsection (b) of this section:

    (1) That collateral consequences may apply because of the conviction;

    (2) Of the Internet web address of the collection of laws published under section four (c) of this article;

    (3) That there may be ways to obtain relief from collateral consequences;

    (4) Of contact information for government or nonprofit agencies, groups or organizations, if any, offering assistance to individuals seeking relief from collateral consequences; and

    (5) Of when an individual convicted of a crime may vote under this state’s law.

    (b) The court shall provide the information in subsection (a) of this section at sentencing. In addition, if an individual is sentenced to imprisonment or other incarceration, the officer or agency releasing the individual shall provide the information in subsection (a) of this section not more than thirty days and, if practicable, at least ten days before release.

§62-16-7. Authorization required for collateral sanction; disqualification; ambiguity.

    (a) A collateral sanction may be imposed only by statute or ordinance, or by a rule authorized by law and adopted in accordance with article three, chapter twenty-nine-a of this code.

    (b) In deciding whether to impose a disqualification on an individual, a decision-maker shall undertake an individual assessment to determine whether the benefit or opportunity at issue should be granted. In making that decision, a decision-maker may not consider the fact of a conviction, but may consider the particular facts and circumstances involved in the offense if they are substantially related to the benefit or opportunity at issue. The decision-maker shall also consider other relevant information, including whether the individual has been granted relief such as an order of limited relief or a certificate of restoration of rights.

    (c) A law creating a collateral consequence that is ambiguous as to whether it imposes a collateral sanction or authorizes a disqualification must be construed as authorizing a disqualification.

§62-16-8. Effect of conviction by another state or the United States; vacated or pardoned conviction.

    (a) For purposes of authorizing or imposing collateral consequences in this state, a conviction for an offense in a court of another state or the United States is considered a conviction of the offense in this state with the same elements. If there is no offense in this state with the same elements, the conviction is considered a conviction of the most serious offense in this state which is established by the elements of the offense. A misdemeanor in the jurisdiction of conviction may not be considered a felony in this state and an offense below a misdemeanor in the jurisdiction of conviction may not be considered a conviction of a crime in this state.

    (b) For purposes of authorizing or imposing collateral consequences in this state, a juvenile adjudication in another state or the United States may not be considered a felony, misdemeanor or offense below a misdemeanor in this state, but may be considered a juvenile adjudication for the juvenile violation in this state with the same elements in the underlying offense. If there is no juvenile violation in this state with the same underlying elements, the juvenile adjudication is considered an adjudication of the most serious juvenile violation in this state which is established by the underlying elements of the juvenile adjudication.

    (c) A conviction that is reversed, overturned or otherwise vacated by a court of competent jurisdiction of this state, another state or the United States on grounds other than rehabilitation or good behavior may not serve as the basis for authorizing or imposing a collateral consequence in this state.

    (d) A pardon issued by another state or the United States has the same effect for purposes of authorizing, imposing and relieving collateral consequences in this state as it has in the issuing jurisdiction.

    (e) A conviction that has been expunged, sealed, annulled, set aside or otherwise vacated by a court of competent jurisdiction of another state or the United States on grounds of rehabilitation or good behavior, or for which civil rights were restored pursuant to statute, has the same effect for purposes of authorizing, imposing and relieving collateral consequences in this state as it has in the jurisdiction of conviction, except that vacation or restoration of civil rights does not relieve collateral consequences applicable under the law of this state for which relief could not be granted under section eleven of this article, or for which relief was expressly withheld by the court order or by the law of the jurisdiction that vacated the conviction. An individual convicted in another jurisdiction may seek relief under sections nine or ten of this article from any collateral consequence for which relief was not granted in the issuing jurisdiction, other than those listed in section eleven of this article, and the court shall consider that the conviction was vacated or civil rights restored in deciding whether to issue an order of limited relief or certificate of restoration of rights.

    (f) A charge or prosecution in any jurisdiction that has been finally terminated without a judgment of conviction and imposition of sentence based on participation in a deferred prosecution or diversion program may not serve as the basis for authorizing or imposing a collateral consequence in this state. This subsection does not affect the validity of any restrictions or conditions imposed by law as part of participation in the deferred prosecution or diversion program, either before or after the termination of the charge or prosecution.

§62-16-9. Order of limited relief.

    (a) An individual convicted of an offense may petition for an order of limited relief from one or more collateral sanctions related to employment, education, housing, public benefits or occupational licensing. The petition may be presented to the:

    (1) Sentencing court at or before sentencing; or

    (2) Court at any time after sentencing.

    (b) Except as otherwise provided in section eleven of this article, the court may issue an order of limited relief relieving one or more of the collateral sanctions described in subsection (a) of this section if, after reviewing the record, including the individual’s criminal history, any filing by a prosecutor or victim under section fourteen of this article and any other relevant evidence, it finds the individual has established by a preponderance of the evidence that:

    (1) Granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or occupational licensing;

    (2) The individual has substantial need for the relief requested in order to live a law-abiding life; and

    (3) Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

    (c) A decision-maker may consider the conduct underlying a conviction in the same manner as provided in section seven (b) of this article.

    (d) The order of limited relief must specify:

    (1) The particular collateral sanction from which relief is granted; and

    (2) Any restrictions imposed pursuant to section twelve (a) of this article.

    (e) Issuance of an order of limited relief relieves a collateral sanction to the extent provided in the order.

§62-16-10. Certificate of restoration of rights.

    (a) An individual convicted of an offense may petition the court for a certificate of restoration of rights relieving collateral sanctions not sooner than five years after the individual’s most recent conviction of a felony or misdemeanor in any jurisdiction or not sooner than five years after the individual’s release from confinement pursuant to a criminal sentence in any jurisdiction, whichever is later.

    (b) Except as otherwise provided in section eleven of this article, the court may issue a certificate of restoration of rights if after reviewing the record, including the individual’s criminal history, any filing by a prosecutor or victim under section fourteen of this article and any other relevant evidence, it finds the individual has established by a preponderance of the evidence that:

    (1) The individual is engaged in, or seeking to engage in, a lawful occupation or activity, including employment, training, education or rehabilitative programs or the individual otherwise has a lawful source of support;

    (2) The individual is not in violation of the terms of any criminal sentence, or that any failure to comply is justified, excused, involuntary or insubstantial;

    (3) No criminal charges are pending against the individual; and

    (4) Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

    (c) A certificate of restoration of rights must specify any restrictions imposed and collateral sanctions from which relief has not been granted under section twelve (a) of this article.

    (d) Issuance of a certificate of restoration of rights relieves all collateral sanctions, except those listed in section eleven and any others specifically excluded in the certificate. A decision-maker may consider the conduct underlying the conviction in the same manner as provided in section seven (b) of this article.

§62-16-11. Collateral sanctions not subject to order of limited relief or certificate of restoration of rights.

    An order of limited relief or certificate of restoration of rights may not be issued to relieve the following collateral sanctions:

    (1) Requirements imposed by article twelve, chapter fifteen of this code;

    (2) A motor vehicle license suspension, revocation, limitation or ineligibility pursuant to article five-a, chapter seventeen-c of this code or a motor vehicle license suspension, revocation, limitation or ineligibility pursuant to article three, chapter seventeen-b of this code for which restoration or relief is available pursuant to article two, chapter seventeen-b of this code; or

    (3) Ineligibility for employment pursuant to any laws restricting employment of convicted individuals by law enforcement agencies including the Attorney General, prosecutor’s office, police department, sheriff’s department, the State Police, the Division of Corrections or the Regional Jail and Correctional Facility Authority.

§62-16-12. Issuance, modification, and revocation of order of limited relief and certificate of restoration of rights.

    (a) When a petition is filed under sections nine or ten of this article, including a petition for enlargement of an existing order of limited relief or certificate of restoration of rights, the court shall notify the office that prosecuted the offense giving rise to the collateral consequence from which relief is sought and, if the conviction was not obtained in a court of this state, the court shall notify the Attorney General. The court may issue an order or certificate subject to restriction, condition or additional requirement. When issuing, denying, modifying or revoking an order or certificate, the court may impose conditions for reapplication.

    (b) The court may restrict or revoke an order of limited relief or certificate of restoration of rights it previously issued or an order issued by a court in this state if it finds just cause by a preponderance of the evidence. Just cause includes subsequent conviction of the holder for a felony in this state or for an offense in another jurisdiction that is considered a felony in this state under section eight (a) of this article. An order of restriction or revocation may be issued:

    (1) On motion of the Attorney General or the office of the prosecutor that obtained the conviction or a government agency designated by that prosecutorial office;

    (2) After notice to the individual to whom the order or certificate was issued and any other prosecutor that has appeared in the matter; and

    (3) After a hearing pursuant to rules adopted by the West Virginia Supreme Court of Appeals if requested by the individual or the prosecutor who made the motion or any prosecutor that has appeared in the matter.

    (c) The court shall order any test, report, investigation or disclosure by the individual it reasonably believes necessary to its decision to issue, modify or revoke an order of limited relief or certificate of restoration of rights. If there are material disputed issues of fact or law, the individual and any prosecutor notified under subsection (a) of this section or another prosecutorial agency designated by a prosecutor notified under subsection (a) of this section shall have the opportunity to submit evidence and be heard on those issues.

    (d) The court shall maintain a public record of the issuance, modification and revocation of orders of limited relief and certificates of restoration of rights.

§62-16-13. Reliance on order or certificate as evidence of due care.

    In a judicial or administrative proceeding alleging negligence or other fault, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued, if the person knew of the order or certificate at the time of the alleged negligence or other fault.

§62-16-14. Victim’s rights.

    A victim of an offense may participate in proceedings for issuance, modification and revocation of orders of limited relief and certificates of restoration of rights in the same manner as at a sentencing proceeding pursuant to section two, article eleven-a, chapter sixty-one of this code.

§62-16-15. Uniformity of application and construction.

    In applying and construing this uniform law, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

§62-16-16. Savings and transitional provisions.

    (a) This article applies to collateral consequences whenever enacted or imposed, unless the law creating the collateral consequence expressly states that this article does not apply.

    (b) This article does not invalidate the imposition of a collateral sanction on an individual before the effective date of this article, but a collateral sanction validly imposed before the effective date of this article may be the subject of relief under this article.



    NOTE: This bill was recommended for introduction and passage by the Joint Standing Committee on the Judiciary. The bill is modeled on the Uniform Collateral Consequences of Conviction Act approved July 15, 2009, by the Uniform Law Commission (ULC). The proposed legislation attempts to provide a more comprehensive mechanism to avoid or mitigate the impact of collateral consequences.


    This article is new; therefore, it has been completely underscored.


    This bill was recommended for introduction and passage during the 2010 Regular Session of the Legislature by the Joint Standing Committee on the Judiciary.

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