(1) "Home" means the actual living area of the temporary or permanent residence of an offender. The term includes, but is not limited to, a hospital, health care facility, hospice, group home, residential treatment facility and boarding house.
(2) "Monitoring device" means an electronic device that is:
(A) Limited in capability to the recording or transmitting of information regarding an offender's presence or absence from the offender's home and his or her use or lack of use of alcohol or controlled substances;
(B) Minimally intrusive upon the privacy of other persons residing in the offender's home; and
(C) Incapable of recording or transmitting:
(i) Visual images;
(ii) Oral or wire communications or any auditory sound; or
(iii) Information regarding the offender's activities while inside the offender's home without the offender's knowledge or consent.
(3) "Offender" means any adult convicted of a crime punishable by imprisonment or detention in a county jail or state penitentiary; or a juvenile convicted of a delinquent act that would be a crime punishable by imprisonment or incarceration in the state penitentiary or county jail, if committed by an adult.
(b) The period of home incarceration may be continuous or intermittent, as the circuit court or magistrate court orders. However, the aggregate time actually spent in home incarceration may not exceed the term of imprisonment or incarceration prescribed by this code for the offense committed by the offender.
(c) A grant of home incarceration under this article constitutes a waiver of any entitlement to deduction from a sentence for good conduct under the provisions of section twenty-seven, article five, chapter twenty-eight of this code.
(d) When imposing home incarceration as a condition of bail, a magistrate shall do so consistent with guidelines promulgated by the Supreme Court of Appeals.
(1) A requirement that the offender be confined to the offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health treatment, counseling or other treatment programs approved for the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a place of worship;
(F) Participating in a community work release or community service program approved for the offender by the circuit court, in circuit court cases; or
(G) Engaging in other activities specifically approved for the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be imposed if the circuit court or magistrate subsequently finds the offender to have violated the terms and conditions in the order of home incarceration.
(3) A requirement that the offender abide by a schedule, prepared by the probation officer in circuit court cases, or by the supervisor or sheriff in magistrate court cases, specifically setting forth the times when the offender may be absent from the offender's home and the locations the offender is allowed to be during the scheduled absences.
(4) A requirement that the offender is not to commit another crime during the period of home incarceration ordered by the circuit court or magistrate.
(5) A requirement that the offender obtain approval from the probation officer or supervisor or sheriff before the offender changes residence or the schedule described in subdivision (3) of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the magistrate, an electronic monitoring device in the offender's home, or on the offender's person, or both; and
(C) Electric service in the offender's home if use of a monitoring device is ordered by the circuit court or any time home incarceration is ordered by the magistrate.
(7) A requirement that the offender pay a home incarceration fee set by the circuit court or magistrate. If a magistrate orders home incarceration for an offender, the magistrate shall follow a fee schedule established by the supervising circuit judge in setting the home incarceration fee. The magistrate or circuit judge shall consider the person's ability to pay in determining the imposition and amount of the fee;
(8) A requirement that the offender pay a fee authorized by the provisions of section four, article eleven-c of this chapter: Provided, That the magistrate or circuit judge considers the person's ability to pay in determining the imposition and amount of the fee; and
(9) A requirement that the offender abide by other conditions set by the circuit court or by the magistrate.
(b) A circuit court or magistrate may not order home incarceration for an offender who is being held under a detainer, warrant or process issued by a court of another jurisdiction.
(c) A magistrate may not order home incarceration for an offender unless electronic monitoring is available and only if the county of the offender's home has an established program of electronic monitoring that is equipped, operated and staffed by the county supervisor or sheriff for the purpose of supervising participants in a home incarceration program: Provided, That electronic monitoring may not be required in a specific case if a circuit court upon petition thereto finds by order that electronic monitoring is not necessary.
(d) A magistrate may only order home incarceration for an offender convicted of a crime of violence against the person if the offender does not occupy the same home as the victim of the crime.
(e) Home incarceration is not available as a sentence if the language of a criminal statute expressly prohibits its application.
(f) Notwithstanding the provisions of subsection (c) of this section, a magistrate may order home incarceration through the imposition of supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code.
(b) If at any time during the period of home incarceration there is reasonable cause to believe that a participant sentenced to home incarceration by the circuit court has violated the terms and conditions of the court's order of home incarceration and said participant's participation was imposed as an alternative sentence to another form of incarceration, said participant shall be subject to the same procedures involving revocation as would a probationer charged with a violation of the order of home incarceration. Any participant under an order of home incarceration shall be subject to the same penalty or penalties, upon the circuit court's finding of a violation of the order of home incarceration, as he or she could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home incarceration.
(c) If at any time during the period of home incarceration there is reasonable cause to believe that a participant sentenced to home incarceration by a magistrate has violated the terms and conditions of the magistrate's order of home incarceration as an alternative sentence to incarceration in jail, the supervising authority may arrest the participant upon the obtaining of an order or warrant and take the offender before a magistrate within the county of the offense. The magistrate shall then conduct a prompt and summary hearing on whether the participant's home incarceration should be revoked. If it appears to the satisfaction of the magistrate that any condition of home incarceration has been violated, the magistrate may revoke the home incarceration and order that the sentence of incarceration in jail be executed. Any participant under an order of home incarceration shall be subject to the same penalty or penalties, upon the magistrate's finding of a violation of the order of home incarceration, as the participant could have received at the initial disposition hearing: Provided, That the participant shall receive credit towards any sentence imposed after a finding of violation for the time spent in home incarceration.
(1) The offender's name, any known aliases, and the location of the offender's home incarceration;
(2) The crime for which the offender was convicted;
(3) The date the offender's home incarceration expires; and
(4) The name, address and telephone number of the offender's supervising probation officer or supervisor, as the case may be, for home incarceration.
(b) Upon conviction of a person, the circuit court, magistrate court or municipal court may, in its discretion, grant credit for time spent on home incarceration as a condition of bail toward any sentence imposed, if the person is found to have complied with the terms of bail.
(b) Any person paroled from a sentence of home incarceration imposed by the provisions of this article shall be supervised by the probation office of the sentencing court. If at any time during the period of parole there is reasonable cause to believe that the person paroled has violated the terms and conditions of his or her parole, he or she shall be subject to the procedures and penalties set forth in section ten, article twelve of this chapter. If at any time during the period of parole from home incarceration there is reasonable cause to believe that the person paroled has violated the terms and conditions of his or her parole and the home incarceration was imposed as an alternative sentence to another form of incarceration, he or she shall be subject to the same penalty or penalties as he or she could have received at the initial disposition hearing. Time served on parole granted shall be credited for time served toward any remainder of the maximum sentence in the event of parole revocation: Provided, That time served on parole from home incarceration may not be credited towards any reduction of sentence for good conduct towards any remainder of the maximum sentence in the event of parole revocation.
Note: WV Code updated with legislation passed through the 2012 1st Special Session
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