SENATE
HOUSE
JOINT
BILL STATUS
STATE LAW
REPORTS
EDUCATIONAL
CONTACT
home
home
Introduced Version House Bill 4422 History

   |  Email
Key: Green = existing Code. Red = new code to be enacted
H. B. 4422


(By Delegates Miley, Brown, Ferro,

Longstreth, Moore and Ross)

(By request of the West Virginia Supreme Court of Appeals)

[Introduced February 10, 2010; referred to the

Committee on the Judiciary.]



A BILL to amend and reenact §61-7-7 of the Code of West Virginia, 1931, as amended, relating to clarifying that an individual is prohibited from possessing firearms and ammunition when a protective order is issued and served; and authorizing the enforcement of firearms prohibition after the emergency protective order is issued.

Be it enacted by the Legislature of West Virginia:

That §61-7-7 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 7. DANGEROUS WEAPONS.

§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.

(a) Except as provided in this section, no person shall may possess a firearm, as such is defined in section two of this article, who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol;
(3) Is an unlawful user of or habitually addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code: Provided, That once an individual has been adjudicated as a mental defective or involuntarily committed to a mental institution, he or she shall be duly notified that they are to immediately surrender any firearms in their ownership or possession: Provided, however, That the mental hygiene commissioner or circuit judge shall first make a determination of the appropriate public or private individual or entity to act as conservator for the surrendered property;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the Armed Forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such by a magistrate, family court judge or circuit court judge and the person has been served or received actual notice and at which such person had an opportunity to participate of the issuance of a protective order and has been given a reasonable opportunity to comply with the order as provided in section one thousand three, article twenty-seven chapter forty-eight of this code;
(B) Restrains such the person from harassing, stalking or threatening an intimate partner of such the person or child of such the intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) Includes a finding that such the person represents a credible threat to the physical safety of such the intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such the intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in the county jail for not less than ninety days nor more than one year, or both fine and confined.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be is guilty of a felony and, upon conviction thereof, shall be confined imprisoned in a state correctional facility for not more than five years or fined not more than $5,000, or both imprisoned and fined. The provisions of subsection (c) of this section shall do not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such the possession would not violate any federal law: Provided, That a person prohibited from possessing a firearm by the provisions of subdivision (4), subsection (a) of this section may petition to regain the ability to possess a firearm in accordance with the provisions of section five, article seven-a of this chapter.



NOTE: The purpose of this bill is to resolve a conflict in criminal statutes. Last year, the Legislature passed House Bill No. 2739 which authorized law-enforcement officers to seize any weapons in the respondent's possession at the time the officer serves the respondent with the order. Further, House Bill No. 2739 made the possession of a firearm by a respondent a criminal offense after an emergency protective order issued and before a hearing. This bill clarifies that law-enforcement may remove weapons possessed after service or notice but before an actual hearing.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
This Web site is maintained by the West Virginia Legislature's Office of Reference & Information.  |  Terms of Use  |   Email WebmasterWebmaster   |   © 2024 West Virginia Legislature **


X

Print On Demand

Name:
Email:
Phone:

Print