H. B. 4170
(By Delegates Miley, Wooton, Barker,
Moore, Shook, Ferro, Ellem and Schoen)
[Introduced January 25, 2010; 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.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended for introduction and passage during
the 2010 Regular Session of the Legislature by the Joint Standing
Committee on the Judiciary.