CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1. PRELIMINARY PROCEDURE.
The complaint is a written statement of the essential facts
constituting the offense charged. It shall be made upon oath
before a justice of the peace.
§62-1-2. Warrant -- Issuance.
If it appears from the complaint that there is probable cause
to believe that an offense has been committed and that the
defendant has committed it, a warrant for the arrest of the
defendant shall issue to any officer authorized by law to arrest
persons charged with offenses against the state. More than one
warrant may issue on the same complaint.
§62-1-3. Same -- Contents.
The warrant shall be signed by the justice and shall contain
the name of the defendant or, if his name is unknown, any name or
description by which he can be identified with reasonable
certainty. It shall describe the offense charged in the complaint.
It shall command that the defendant be arrested and brought before
a justice of the county in which the warrant is executed.
§62-1-4. Same -- Execution; arrest by officer without warrant in
possession; duplicate warrants.
The warrant shall be executed by the arrest of the defendant.
It may be executed at any time or place within the state. The
officer need not have the warrant in his possession at the time of
the arrest, but upon request by the defendant, the officer shall
show the warrant to him as soon as possible. If the officer does
not have the warrant in his possession at the time of the arrest,
he shall then inform the defendant of the offense charged and of
the fact that a warrant has been issued. While the complaint is
pending, a warrant returned unexecuted and not cancelled or a
duplicate warrant may be delivered to the same or another
authorized officer for execution.
§62-1-5. Same -- Delivery of prisoner before magistrate; complaint
for person arrested without warrant; return.
(a) (1) An officer making an arrest under a warrant issued
upon a complaint, or any person making an arrest without a warrant
for an offense committed in his presence or as otherwise authorized
by law, shall take the arrested person without unnecessary delay
before a magistrate of the county where the arrest is made.
(2) If a person arrested without a warrant is brought before
a magistrate, a complaint shall be filed forthwith in accordance
with the requirements of rules of the supreme court of appeals.
(3) An officer executing a warrant shall make return thereof
to the magistrate before whom the defendant is brought.
(b)(1) Notwithstanding any other provision of this code to the
contrary, if a person arrested without a warrant is brought before
a magistrate prior to the filing of a complaint, a complaint shall
be filed forthwith in accordance with the requirements of rules of
the supreme court of appeals, and the issuance of a warrant or a
summons to appear is not required.
(2) When a person appears initially before a magistrate either
in response to a summons or pursuant to an arrest with or without
a warrant, the magistrate shall proceed in accordance with the
requirements of the applicable provisions of the rules of the
supreme court of appeals.
§62-1-5a. Citation in lieu of arrest; failure to appear.
A law-enforcement officer may issue a citation instead of
making an arrest for the following offenses, if there are
reasonable grounds to believe that the person being cited will
appear to answer the charge:
(1) Any misdemeanor, not involving injury to the person,
committed in a law-enforcement officer's presence: Provided, That
the officer may arrest the person if he has reasonable grounds to
believe that the person is likely to cause serious harm to himself
or others; and
(2) When any person is being detained for the purpose of
investigating whether such person has committed or attempted to
commit shoplifting, pursuant to section four, article three-a,
chapter sixty-one of this code.
The citation shall provide that the defendant shall appear
within a designated time.
If the defendant fails to appear in response to the citation
or if there are reasonable grounds to believe that he will not
appear, a complaint may be made and a warrant shall issue. When a
physical arrest is made and a citation is issued in relation to the
same offense the officer shall mark on the citation, in the place
specified for court appearance date, the word "arrested" in lieu of
the date of court appearance.
§62-1-6. Informing defendant of nature of complaint and his
rights; opportunity to confer with counsel and
The justice shall in plain terms inform the defendant of the
nature of the complaint against him, of his right to counsel and,
if the offense is to be presented for indictment, of his right to
have a preliminary examination. He shall also inform the defendant
that he is not required to make a statement and that any statement
made by him may be used against him. He shall provide the
defendant reasonable means to communicate with an attorney or with
at least one relative or other person for the purpose of obtaining
counsel or arranging bail. The defendant shall not be committed to
jail or removed from the county of arrest until he has had a
reasonable opportunity to confer with counsel or to arrange bail.
He may be detained under such security measures as the
circumstances warrant. If the defendant is unable to provide bail
or if the offense is unbailable, he shall be committed to jail.
§62-1-7. Offense arising in other county.
If the warrant issued, or if the offense is alleged to have
been committed, in a county other than the county of arrest, all
papers in the proceeding shall be promptly transmitted to a justice
of the county having jurisdiction of the offense for preliminary
examination or trial. If the defendant is unable to provide bail
in the county of arrest, he shall be committed to the custody of an
officer who shall take him without unnecessary delay before a
justice of the county wherein the examination or trial is to be
held, there to be dealt with as provided by law.
§62-1-8. Preliminary examination.
If the offense is to be presented for indictment, the
preliminary examination shall be conducted by a justice of the
county in which the offense was committed within a reasonable time
after the defendant is arrested, unless the defendant waives
examination. The defendant shall not be called upon to plead.
Witnesses shall be examined and evidence introduced for the state
under the rules of evidence prevailing in criminal trials
generally. The defendant or his attorney may cross-examine
witnesses against him and may introduce evidence in his own behalf.
On motion of either the state or the defendant, witnesses shall be
separated and not permitted in the hearing room except when called
to testify. If the defendant waives preliminary examination or if,
after hearing, it appears from the evidence that there is probable
cause to believe that an offense has been committed and that the
defendant has committed it, the justice shall forthwith hold him to
answer in the court having jurisdiction to try criminal cases. If
the evidence does not establish probable cause, the defendant shall
be discharged. After concluding the proceeding the justice shall
transmit forthwith to the clerk of the court to which the defendant
is held to answer all papers in the proceeding and any bail taken
The justice shall grant upon request of the defendant one
continuance for a period not to exceed ten days. A continuance for
a like period shall be granted on request of the state if the
defendant has been admitted to bail. No other continuance shall be
granted except for good cause or by mutual consent of the state and
§62-1-10. Concurrent powers.
A judge of a court having jurisdiction to try criminal
offenses shall have the same power to issue warrants as conferred
upon a justice of the peace by this article. A mayor or judge of
a police court acting in the capacity of a justice of the peace
shall have all the powers and duties conferred upon a justice by
§62-1-11. Repeal of inconsistent laws.
All provisions of this code which are inconsistent with the
provisions of this article are hereby repealed to the extent and
only to the extent of such inconsistency: Provided,
That under no
circumstances shall the foregoing repealer provision or the
provisions of this article be construed as repealing, limiting or
in any way altering the provisions of article nineteen, chapter
seventeen-c of this code.
If any provision of this article or the application thereof to
any person or circumstance is held invalid, such invalidity shall
not affect other provisions or applications of the article which
can be given effect without the invalid provision or its
application, and to this end, the provisions of this article are
declared to be severable.
Note: WV Code updated with legislation passed through the 2013 1st Special Session
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