Senate Bill No. 61
(By Senator Foster)
[Introduced January 12, 2011; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
A BILL to amend and reenact §49-5-2 of the Code of West Virginia, 1931, as amended, relating to the appointment of hearing officers for juvenile drug courts.
Be it enacted by the Legislature of West Virginia:
That §49-5-2 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-2. Juvenile jurisdiction of circuit courts, magistrate courts and municipal courts; constitutional guarantees; hearings; evidence and transcripts.
(a) The circuit court has original jurisdiction of proceedings brought under this article.
(b) If, during a criminal proceeding, in any court it is ascertained or appears that the defendant is under the age of nineteen years and was under the age of eighteen years at the time of the alleged offense, the matter shall be immediately certified to the juvenile jurisdiction of the circuit court. The circuit court shall assume jurisdiction of the case in the same manner as cases which are originally instituted in the circuit court by petition.
(c) Notwithstanding any other provision of this article, magistrate courts have concurrent juvenile jurisdiction with the circuit court for a violation of a traffic law of West Virginia, for a violation of section nine, article six, chapter sixty, section three or section four, article nine-a, chapter sixteen, or section nineteen, article sixteen, chapter eleven of this code or for any violation of chapter twenty. of this code. Juveniles are liable for punishment for violations of these laws in the same manner as adults except that magistrate courts have no jurisdiction to impose a sentence of incarceration. for the violation of these laws
(d) Notwithstanding any other provision of this article, municipal courts have concurrent juvenile jurisdiction with the circuit court for a violation of any a municipal ordinance regulating traffic, for any a municipal curfew ordinance which is enforceable or for any a municipal ordinance regulating or prohibiting public intoxication, drinking or possessing alcoholic liquor or nonintoxicating beer in public places, any other act prohibited by section nine, article six, chapter sixty or section nineteen, article sixteen, chapter eleven of this code or underage possession or use of tobacco or tobacco products as provided in article nine-a, chapter sixteen of this code. Municipal courts may impose the same punishment for these violations as a circuit court exercising its juvenile jurisdiction could properly impose except that municipal courts have no jurisdiction to impose a sentence of incarceration. for the violation of these laws.
(e) A juvenile may be brought before the circuit court for proceedings under this article only by the following means:
(1) By a juvenile petition requesting that the juvenile be adjudicated as a status offender or a juvenile delinquent; or
(2) By certification or transfer to the juvenile jurisdiction of the circuit court from the criminal jurisdiction of the circuit court, from any foreign court or from any magistrate court or municipal court in West Virginia.
(f) If a juvenile commits an act which would be a crime if committed by an adult and the juvenile is adjudicated delinquent for that act, the jurisdiction of the court which adjudged the juvenile delinquent continues until the juvenile becomes twenty-one years of age. The court has the same power over that person that it had before he or she became an adult and has the further power to sentence that person to a term of incarceration Provided, That any such except that a term of incarceration may not exceed six months. This authority does not preclude the court from exercising criminal jurisdiction over that person if he or she violates the law after becoming an adult or if the proceedings have been transferred to the court's criminal jurisdiction pursuant to section ten of this article.
(g) A juvenile is entitled to be admitted to bail or recognizance in the same manner as an adult and shall be afforded the protection guaranteed by Article III of the West Virginia Constitution.
(h) A juvenile has the right to be effectively represented by counsel at all stages of proceedings under the provisions of this article. If the juvenile or the juvenile’s parent or custodian executes an affidavit showing that the juvenile cannot afford an attorney, the court shall appoint an attorney who shall be paid in accordance with article twenty-one, chapter twenty-nine of this code.
(I) In all proceedings under this article, the juvenile shall be afforded a meaningful opportunity to be heard This includes including the opportunity to testify and to present and cross-examine witnesses. The general public shall be excluded from all proceedings under this article except that for persons whose presence is requested by the parties and other persons whom the circuit court determines others who are determined by the circuit court to have a legitimate interest in the proceedings. may attend. Provided, That In cases in which a juvenile is accused of committing what would be a felony if the juvenile were an adult, an alleged victim or his or her representative may attend any related juvenile proceedings at the discretion of the presiding judicial officer. Provided, however, That in any In a case in which the alleged victim is a juvenile, he or she may be accompanied by his or her parents or representative at the discretion of the presiding judicial officer.
(j) At all adjudicatory hearings held under this article, all procedural rights afforded to adults in criminal proceedings shall be afforded the juvenile unless specifically provided otherwise in this chapter.
(k) At all adjudicatory hearings held under this article, the rules of evidence applicable in criminal cases apply including the rule against written reports based upon hearsay.
(l) Except for res gestae, extrajudicial statements made by a juvenile who has not attained fourteen years of age to law-enforcement officials or while in custody are not admissible unless those statements were made in the presence of the juvenile’s counsel. Except for res gestae, extrajudicial statements made to law-enforcement officers or while in custody by a juvenile who has not attained sixteen years of age but who is at least fourteen years of age, to law-enforcement officers or while in custody, are not admissible unless made in the presence of the juvenile’s counsel or made in the presence of, and with the consent of, the juvenile’s parent or custodian and the parent or custodian has been fully informed regarding the juvenile’s right to a prompt detention hearing, the juvenile’s right to counsel, including appointed counsel if the juvenile cannot afford counsel and the juvenile’s privilege against self-incrimination.
(m) A transcript or recording shall be made of all transfer, adjudicatory and dispositional hearings held in circuit court. At the conclusion of each of these hearings, the circuit court shall make findings of fact and conclusions of law, both of which shall appear on the record. The court reporter shall furnish a transcript of the proceedings at no charge to any indigent juvenile who seeks review of any proceeding under this article if an affidavit is filed stating that neither the juvenile nor the juvenile’s parents or custodian have the ability to pay for the transcript.
(n) The Supreme Court of Appeals is authorized to appoint appropriate hearing officers for the operation of juvenile drug courts. Hearing officers shall be limited to current or senior-status circuit judges or family court judges.
(NOTE: The purpose of this bill is to authorize the Supreme Court to appoint hearing officers for juvenile drug courts.
Strike-throughs indicate language that would be stricken from the present law and underscoring indicates new language that would be added.)