Senate Bill No. 225
(By Senator Facemyer)
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[Introduced February 18, 2005; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §16-9A-3 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-5-2 of said
code, all relating to granting municipal courts jurisdiction
over juveniles who violate laws and ordinances relating to
tobacco use.
Be it enacted by the Legislature of West Virginia:
That §16-9A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §49-5-2 of said code be amended
and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.
§16-9A-3. Use or possession of tobacco or tobacco products by
persons under the age of eighteen years; penalties.
No person under the age of eighteen years shall have on or
about his or her person or premises or use any cigarette, or
cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco products, in any form; or,
any pipe, snuff, chewing tobacco or tobacco product: Provided,
That minors participating in the inspection of locations where
tobacco products are sold or distributed pursuant to section seven
of this article shall not be deemed to violate the provisions of
this section. Any person violating the provisions of this section
shall for the first violation be fined twenty-five dollars and be
required to serve eight hours of community service; for a second
violation, the person shall be fined fifty dollars and be required
to serve sixteen hours of community service; and for a third and
each subsequent violation, the person shall be fined one hundred
dollars and be required to serve twenty-four hours of community
service. Notwithstanding the provisions of section two, article
five, chapter forty-nine, the magistrate court and the municipal
court shall have concurrent jurisdiction.
CHAPTER 49. CHILD WELFARE.
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 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 municipal ordinance regulating
traffic, for any municipal curfew ordinance which is enforceable or
for any municipal ordinance regulating or prohibiting public
intoxication, drinking or possessing alcoholic liquor or
nonintoxicating beer in public places,
or for any municipal
ordinance regulating or prohibiting the possession of tobacco or
tobacco products or any other act prohibited by section nine,
article six, chapter sixty or section nineteen, article sixteen,
chapter eleven,
or section three, 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 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
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 persons whose presence
is requested by the parties and other persons whom the circuit
court determines 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 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 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.
NOTE: The purpose of this bill is to grant municipal courts
jurisdiction over juveniles who violate laws and ordinances
relating to tobacco use.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.