WEST virginia legislature
2019 regular session
House Bill 3133
By Rohrbach, Pushkin and Robinson
[Originating in the Committee on Prevention and Treatment of Substance Abuse then the Judiciary]
A BILL to amend and reenact §62-12-6 and §62-12-9 of the Code of West Virginia, 1931, as amended, relating to requiring a probationer found to have suffered with addiction to participate in a support service upon release for a certain period of time.
Be it enacted by the Legislature of West Virginia:
CHAPTER 62. CRIMINAL PROCEDURE.
§62-12-6. Powers and duties of probation officers.
(a) Each probation officer shall:
(1) Investigate all cases which the court refers to the officer for investigation and shall report in writing on each case;
(2) Conduct a standardized risk and needs assessment, using the instrument adopted by the Supreme Court of Appeals of West Virginia, for any probationer for whom an assessment has not been conducted either prior to placement on probation or by a specialized assessment officer. The results of all standardized risk and needs assessments are confidential;
(3) Supervise the probationer and enforce probation according to assessment and supervision standards adopted by the Supreme Court of Appeals of West Virginia;
(4) Furnish to each person released on probation under the officer's supervision a written statement of the probationer's conditions of probation together with a copy of the rules prescribed by the Supreme Court of Appeals of West Virginia;
(5) Stay informed concerning the conduct and condition of each probationer under the officer's supervision and report on the conduct and condition of each probationer in writing as often as the court requires;
(6) Use all practicable and suitable methods to aid and encourage the probationer to improve his or her conduct and condition;
(7) Perform random drug and alcohol testing on probationers under his or her supervision as directed by the circuit court;
(8) Maintain detailed work records; and
(9) Perform any other duties the court requires.
(b) The probation officer may, with or without an order or warrant, arrest any probationer as provided in section ten of this article, and arrest any person on supervised release when there is reasonable cause to believe that the person on supervised release has violated a condition of release. A person on supervised release who is arrested shall be brought before the court for a prompt and summary hearing.
(c) Notwithstanding any provision of this code to the contrary:
(1) Any probation officer appointed on or after July 1, 2002, may carry handguns in the course of the officer's official duties after meeting specialized qualifications established by the Governor's Committee on Crime, Delinquency and Correction. The qualifications shall include the successful completion of handgun training, which is comparable to the handgun training provided to law-enforcement officers by the West Virginia State Police and includes a minimum of four hours' training in handgun safety.
(2) Probation officers may only carry handguns in the course of their official duties after meeting the specialized qualifications set forth in subdivision (1) of this subsection.
(3) Nothing in this subsection includes probation officers within the meaning of law-enforcement officers as defined in section one, article twenty-nine, chapter thirty of this code.
(d) The Supreme Court of Appeals of West Virginia
shall adopt a standardized risk and needs assessment with risk cut-off
scores for use by probation officers, taking into consideration the assessment
instrument adopted by the Division of Corrections under subsection (h), section
thirteen of this article and the responsibility of the Division of Justice and
Community Services to evaluate the use of the standardized risk and needs
assessment. The results of any standardized risk and needs assessment are
§62-12-9. Conditions of release on probation.
(a) Release on probation is conditioned upon the following:
(1) That the probationer may not, during the term of his or her probation, violate any criminal law of this or any other state or of the United States;
(2) That the probationer may not, during the term of his or her probation, leave the state without the consent of the court which placed him or her on probation;
(3) That the probationer complies with the conditions prescribed by the court for his or her supervision by the probation officer;
(4) That when a probationer has been determined, by the standardized risk and needs assessment adopted by the Supreme Court of Appeals of West Virginia under §62-12-6(d) to have a history of substance abuse, he or she shall participate in an appropriate support service, for a minimum of 60 days on a schedule approved by the probation officer.
(4) (5) That in
every case in which the probationer has been convicted of an offense defined in
section twelve, article eight, chapter sixty-one of this code or article
eight-b or eight-d of said chapter, against a child, the probationer may not
live in the same residence as any minor child, nor exercise visitation with any
minor child and may have no contact with the victim of the offense: Provided,
That the probationer may petition the court of the circuit in which he or she
was convicted for a modification of this term and condition of his or her
probation and the burden rests upon the probationer to demonstrate that a
modification is in the best interest of the child; (5) (6) That
the probationer pay a fee, not to exceed $20 per month, to defray costs of
supervision: Provided, That the court conducts a hearing prior to
imposition of probation and makes a determination on the record that the
offender is able to pay the fee without undue hardship. All moneys collected as
fees from probationers pursuant to this subdivision shall be deposited with the
circuit clerk who shall, on a monthly basis, remit the moneys collected to the
State Treasurer for deposit in the State General Revenue Fund; and (6) (7) That
the probationer is required to pay the fee described in section four, article
eleven-c of this chapter: Provided, That the court conducts a hearing
prior to imposition of probation and makes a determination on the record that
the offender is able to pay the fee without undue hardship.
(b) In addition, the court may impose, subject to modification at any time, any other conditions which it may determine advisable, including, but not limited to, any of the following:
(1) That the probationer make restitution or reparation, in whole or in part, immediately or within the period of probation, to any party injured by the crime for which he or she has been convicted: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay restitution without undue hardship;
(2) That the probationer pays any fine assessed and the costs of the proceeding in installments directed by the court: Provided, That the court conducts a hearing prior to imposition of probation and makes a determination on the record that the offender is able to pay the costs without undue hardship;
(3) That the probationer makes contributions from his or her earnings, in sums directed by the court, for the support of his or her dependents; and
(4) That the probationer, in the discretion of the court, is required to serve a period of confinement in jail of the county in which he or she was convicted for a period not to exceed one third of the minimum sentence established by law or one third of the least possible period of confinement in an indeterminate sentence, but in no case may the period of confinement exceed six consecutive months. The court may sentence the defendant within the six-month period to intermittent periods of confinement including, but not limited to, weekends or holidays and may grant to the defendant intermittent periods of release in order that he or she may work at his or her employment or for other reasons or purposes as the court may determine appropriate: Provided, That the provisions of article eleven-a of this chapter do not apply to intermittent periods of confinement and release except to the extent directed by the court. If a period of confinement is required as a condition of probation, the court shall make special findings that other conditions of probation are inadequate and that a period of confinement is necessary.
(c) Circuit courts may impose, as a condition of probation, participation in a day report center.
(1) To be eligible, the probationer must be identified as moderate to high risk of reoffending and moderate to high criminogenic need, as determined by the standardized risk and needs assessment adopted by the Supreme Court of Appeals of West Virginia under subsection (d), section six of this article, and applied by a probation officer or day report staff. In eligible cases, circuit courts may impose a term of up to one year: Provided, That notwithstanding the results of the standardized risk and needs assessment, a judge may impose, as a term of probation, participation in a day report center program upon making specific written findings of fact as to the reason for departing from the requirements of this subdivision.
(2) The day report center staff shall determine which services a person receives based on the results of the standardized risk and needs assessment and taking into consideration the other conditions of probation set by the court.
(d) For the purposes of this article, "day report center" means a court-operated or court-approved facility where persons ordered to serve a sentence in this type of facility are required to report under the terms and conditions set by the court for purposes which include, but are not limited to, counseling, employment training, alcohol or drug testing or other medical testing.
NOTE: The purpose of this bill is to require that any inmate found to have exhibited signs of abuse or patterns of addiction of drugs and alcohol to require counseling for the inmate for a minimum of 60 days upon being released on parole.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.