H. B. 2260
(By Delegates Staton, Fleischauer, Amores and Faircloth)
[Introduced February 27, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article four, chapter
fifty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section five, article one, chapter sixty-two of said code,
all relating to procedures to be followed upon discovery of
a criminal violation.
Be it enacted by the Legislature of West Virginia:
That section two, article four, chapter fifty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; and that section five, article one,
chapter sixty-two of said code be amended and reenacted, all to
read as follows:
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 4. PROCEDURE BEFORE TRIAL.
§50-4-2. Commencement of criminal prosecutions.
PROSECUTIONSPROSECUTIONS.
actions prosecutions.
Criminal actions
Except where the provisions of this code
or rule of the supreme court of appeals permit the commencement
of a criminal prosecution through the issuance of a citation, a
criminal prosecution shall be commenced by the filing of a
complaint filed in compliance with the provisions of in
accordance with the requirements of rules of the supreme court of
appeals. article one, chapter sixty-two of this code
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 1. PRELIMINARY PROCEDURE.
§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 justice magistrate of the county in
which where the arrest is made.
(2) When If a person arrested without a warrant is brought
before a justice magistrate, a complaint shall be filed and a
warrant issued forthwith in accordance with the requirements of
rules of the supreme court of appeals.
(3) The An officer executing the a warrant shall make
return thereof to the justice 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, 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.
NOTE: The purpose of this bill is to clarify that a
criminal complaint and warrant are not required to commence a
criminal prosecution instituted by the issuance of a citation, to
eliminate the unnecessary issuance of an arrest warrant where the
defendant has already been arrested and a criminal complaint has
been filed, and to otherwise clarify the procedures to be
followed upon arrest consistent with the provisions of rules of
the supreme court of appeals.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Staff Note: Current provisions of §50-4-2 appear to require that
a complaint must be issued whenever any criminal violation is
charged. This conflicts with other code provisions that permit
a criminal violation be charged by way of citation in lieu of
complaint. See, e.g., §62-1-5a(1)(2), §§17C-19-3&4(3)(4), §20-7-4a(5)(6).
Current provisions of §62-1-5 require that upon the filing
of a criminal complaint, the magistrate must issue an arrest
warrant even where the defendant is already in custody after
being arrested without a warrant prior to the filing of the
complaint.
The WV Rules of Criminal Procedure for Magistrate Courts
permit the initiation of a criminal proceeding by citation(7)(8).
Those rules also do not appear to require the issuance of a
warrant where the defendant has already been arrested without a
warrant and is brought before the magistrate prior to the
issuance of a warrant(9).
If those statutory sections are amended as provided, they
will be consistent with other statutory provisions as well as
court rules.
1. .§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.
2. .§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.
3. .§17C-19-3. When person arrested must be taken immediately before a magistrate
or court.
(a) Whenever any person is arrested for any violation of this chapter
punishable as a misdemeanor, the arrested person shall be immediately taken before
a magistrate or court within the county in which the offense charged is alleged to
have been committed and who has jurisdiction of the offense and is nearest or most
accessible with reference to the place where the arrest is made, in any of the
following cases:
(1) When a person arrested demands an immediate appearance before a magistrate
or court;
(2) When the person is arrested upon a charge of negligent homicide;
(3) When the person is arrested upon a charge of driving while under the
influence of alcohol, or under the influence of any controlled substance, or under
the influence of any other drug, or under the combined influence of alcohol and any
controlled substance or any other drug;
(4) When the person is arrested upon a charge of failure to stop in the event
of an accident causing death, personal injuries or damage to property;
(5) When the person is arrested upon a charge of violating section fourteen,
article seventeen of this chapter relating to weight violations, except as otherwise
provided in that section.
(6) When the person arrested is a resident of a state that has not entered
into a nonresident violator compact with this state;
(7) In any other event when the person arrested refuses to give his written
promise to appear in court as provided in section four of this article.
(b) When the person arrested is a resident of a state that has entered into
a nonresident violator compact with this state, the arresting officer shall issue
the person a written notice as provided for in section four of this article and may
not take the person immediately before a magistrate or court, except under the terms
of the compact or under the circumstances set forth in subsection (a) of this
section.
§17C-19-4. When person arrested to be given five days' notice to appear in court.
(a) Whenever a person is arrested for any violation of this chapter punishable
as a misdemeanor, and such person is not immediately taken before a justice or court
as hereinbefore required, the arresting officer shall prepare written notice to
appear in court containing the name and address of such person, the license number
of his vehicle, if any, the offense charged, and the time and place when and where
such person shall appear in court.
(b) The time specified in said notice to appear must be at least five days
after such arrest unless the person arrested shall demand an earlier hearing.
(c) The place specified in said notice to appear must be before a justice or
court within the township or county in which the offense charged is alleged to have
been committed and who has jurisdiction of such offense.
(d) The arrested person in order to secure release, as provided in this
section, must accept a copy of the written notice prepared by the arresting officer.
The officer shall deliver a copy of the notice to the person promising to appear.
Thereupon, said officer shall forthwith release the person arrested from custody.
4. .§17C-19-3. When person arrested must be taken immediately before a
magistrate or court.
(a) Whenever any person is arrested for any violation of this chapter
punishable as a misdemeanor, the arrested person shall be immediately taken
before a magistrate or court within the county in which the offense charged is
alleged to have been committed and who has jurisdiction of the offense and is
nearest or most accessible with reference to the place where the arrest is made,
in any of the following cases:
(1) When a person arrested demands an immediate appearance before a
magistrate or court;
(2) When the person is arrested upon a charge of negligent homicide;
(3) When the person is arrested upon a charge of driving while under the
influence of alcohol, or under the influence of any controlled substance, or
under the influence of any other drug, or under the combined influence of alcohol and any controlled substance or any other drug;
(4) When the person is arrested upon a charge of failure to stop in the
event of an accident causing death, personal injuries or damage to property;
(5) When the person is arrested upon a charge of violating section
fourteen, article seventeen of this chapter relating to weight violations, except
as otherwise provided in that section.
(6) When the person arrested is a resident of a state that has not entered
into a nonresident violator compact with this state;
(7) In any other event when the person arrested refuses to give his written
promise to appear in court as provided in section four of this article.
(b) When the person arrested is a resident of a state that has entered into
a nonresident violator compact with this state, the arresting officer shall issue
the person a written notice as provided for in section four of this article and
may not take the person immediately before a magistrate or court, except under
the terms of the compact or under the circumstances set forth in subsection (a)
of this section.
§17C-19-4. When person arrested to be given five days' notice to appear in court.
(a) Whenever a person is arrested for any violation of this chapter
punishable as a misdemeanor, and such person is not immediately taken before a
justice or court as hereinbefore required, the arresting officer shall prepare
written notice to appear in court containing the name and address of such person,
the license number of his vehicle, if any, the offense charged, and the time and
place when and where such person shall appear in court.
(b) The time specified in said notice to appear must be at least five days
after such arrest unless the person arrested shall demand an earlier hearing.
(c) The place specified in said notice to appear must be before a justice
or court within the township or county in which the offense charged is alleged
to have been committed and who has jurisdiction of such offense.
(d) The arrested person in order to secure release, as provided in this
section, must accept a copy of the written notice prepared by the arresting
officer. The officer shall deliver a copy of the notice to the person promising
to appear. Thereupon, said officer shall forthwith release the person arrested
from custody.
5. .§20-7-4a. Arrest procedure.
(a) Whenever a person is arrested for any violation of this chapter punishable
as a misdemeanor, and such person is not immediately taken before a magistrate or
court, the arresting officer shall prepare written notice to appear in court
containing the name, address, date of birth, sex, hunting or fishing license number,
if any, and social security number of such person, serial number or description of
any property found in the possession of the person arrested and susceptible to use
in committing the offense charged, if any, the offense charged and the time and
place, when and where such person shall appear in court.
(b) The time specified in said notice to appear must be at least five days
after such arrest unless the person arrested demands an earlier hearing.
(c) The place specified in said notice to appear must be before a magistrate
or court within the county in which the offense charged is alleged to have been
committed and who has jurisdiction of such offense.
(d) The arrested person in order to secure release, as provided in this
section, must accept a copy of the written notice prepared by the arresting officer.
The officer shall deliver a copy of the notice to the person promising to appear.
Thereupon, said officer shall forthwith release the person arrested from custody.
6. .§20-7-4a. Arrest procedure.
(a) Whenever a person is arrested for any violation of this chapter
punishable as a misdemeanor, and such person is not immediately taken before a
magistrate or court, the arresting officer shall prepare written notice to appear
in court containing the name, address, date of birth, sex, hunting or fishing
license number, if any, and social security number of such person, serial number
or description of any property found in the possession of the person arrested and
susceptible to use in committing the offense charged, if any, the offense charged
and the time and place, when and where such person shall appear in court.
(b) The time specified in said notice to appear must be at least five days
after such arrest unless the person arrested demands an earlier hearing.
(c) The place specified in said notice to appear must be before a
magistrate or court within the county in which the offense charged is alleged to
have been committed and who has jurisdiction of such offense.
(d) The arrested person in order to secure release, as provided in this
section, must accept a copy of the written notice prepared by the arresting
officer. The officer shall deliver a copy of the notice to the person promising
to appear. Thereupon, said officer shall forthwith release the person arrested
from custody.
7. .Rule 7. Citations For Traffic and Natural Resources Offenses.
(a) Citation. In lieu of the procedures set forth in Rules 3 and 4 of these
Rules, a law enforcement officer may prepare and serve a citation as the instrument
charging a misdemeanor violation of Chapters 17, 17A, 17B, or 17C, except as
provided by West Virginia Code §17C-19-3, 17D, or 20 of the West Virginia Code. The
citation must state the offense charged and notify the defendant of the requirement
to answer or appear in response to the charge, by a date certain, in the magistrate
court of the county where the offense occurred.
(b) Pleas of Guilty or No Contest. The citation shall be a sufficient
document to which the defendant may plead guilty or no contest. Before accepting
a plea of guilty or no contest, the magistrate shall inform the defendant of the
charge and the penalties the court may impose. The magistrate shall also advise
that the defendant has the right to be represented by an attorney, that the
defendant may plead not guilty to the charge and demand a trial by jury, and that
by pleading guilty the defendant waives all of these rights.
(1) For violations of West Virginia Code §17B-4-3 (driving while suspended or
revoked), West Virginia Code §17C-5-1 (negligent homicide), West Virginia Code
§17C-5-2 (DUI), West Virginia Code §17C-5-3 (reckless driving) and West Virginia
Code Chapter 20 offenses involving injury to the person, a plea of guilty or no
contest shall be made in person before a magistrate in the county where the offense
occurred.
(2) For all other citations such pleas of guilty or no contest may also be
made by telephone to a magistrate in the county where the offense occurred. In such
instances the magistrate, upon advising the defendant, accepting the plea, and
imposing the fine and costs, shall direct the defendant to complete the guilty plea
form on the citation and to deliver by mail to the magistrate court the citation and
all fines and costs assessed.
(c) Plea of Not Guilty. A plea of not guilty to a traffic or natural
resources citation may be made in person before a magistrate in the county in which
the offense was charged, or by mail to the magistrate court of such county. In such
instances, a complaint must be filed at or prior to trial which complies with the
probable cause requirements of Rule 4. Upon motion of the defendant, a continuance
may be granted if necessary to provide time to meet any new information set forth
in the complaint and if the refusal to grant such continuance would substantially
prejudice the rights of the defendant.
(d) Motion to Dismiss. A defendant may seek dismissal of a traffic or natural
resources citation prior to trial by filing, on a form provided by the magistrate
court, a motion to dismiss. Such motion shall state with particularity the grounds
upon which dismissal is sought. Upon receipt of such motion, the magistrate court
shall promptly forward a copy of such motion to the prosecuting attorney. If upon
10 days from the date of delivery of such motion to the prosecuting attorney no
objection is made, the magistrate may dismiss the citation. If within 10 days from
the date of delivery the prosecuting attorney objects to such motion, the case shall
proceed to hearing or trial.
(e) Failure to Appear. The magistrate court clerk on a regular basis shall
notify the prosecuting attorney of citations for which the defendant failed to
appear. The magistrate court clerk shall notify the Division of Motor Vehicles of
all such instances involving a failure to answer or appear in response to a citation
charging a violation of any provision of Chapter 17, 17A, 17B, 17C, or 17D of the
West Virginia Code, and for any criminal violation charged on or after July 9, 1993,
with the exception of parking violations and other violations for which a citation
may be issued to an unattended vehicle. Such notification shall be provided in the
same form as that provided by Rule 5.3 and Rule 22 of these Rules and shall be sent
within 15 days from the scheduled date to answer or appear unless the defendant
answers or appears within that time.
Upon motion by the prosecuting attorney, the magistrate may issue a warrant
for the arrest of a defendant who without showing good cause has failed to answer
or appear at any stage of a proceeding in response to a citation.
Rule 8. Citation for Other Offense.
In lieu of the procedures set forth in Rules 3 and 4 of these Rules, a law
enforcement officer may issue a citation for any offense for which a citation in
lieu of an arrest is authorized by W. Va. Code § 62-1-5a. For such citations, the
procedures set forth in Rules 7(a), 7(b)(1), 7(c), and 7(e) shall apply.
8. .Rule 7. Citations For Traffic and Natural Resources Offenses.
(a) Citation. In lieu of the procedures set forth in Rules 3 and 4 of
these Rules, a law enforcement officer may prepare and serve a citation as the
instrument charging a misdemeanor violation of Chapters 17, 17A, 17B, or 17C, except as provided by West Virginia Code §17C-19-3, 17D, or 20 of the West
Virginia Code. The citation must state the offense charged and notify the
defendant of the requirement to answer or appear in response to the charge, by
a date certain, in the magistrate court of the county where the offense occurred.
(b) Pleas of Guilty or No Contest. The citation shall be a sufficient
document to which the defendant may plead guilty or no contest. Before accepting
a plea of guilty or no contest, the magistrate shall inform the defendant of the
charge and the penalties the court may impose. The magistrate shall also advise
that the defendant has the right to be represented by an attorney, that the
defendant may plead not guilty to the charge and demand a trial by jury, and that
by pleading guilty the defendant waives all of these rights.
(1) For violations of West Virginia Code §17B-4-3 (driving while suspended
or revoked), West Virginia Code §17C-5-1 (negligent homicide), West Virginia Code
§17C-5-2 (DUI), West Virginia Code §17C-5-3 (reckless driving) and West Virginia
Code Chapter 20 offenses involving injury to the person, a plea of guilty or no
contest shall be made in person before a magistrate in the county where the
offense occurred.
(2) For all other citations such pleas of guilty or no contest may also be
made by telephone to a magistrate in the county where the offense occurred. In
such instances the magistrate, upon advising the defendant, accepting the plea,
and imposing the fine and costs, shall direct the defendant to complete the
guilty plea form on the citation and to deliver by mail to the magistrate court
the citation and all fines and costs assessed.
(c) Plea of Not Guilty. A plea of not guilty to a traffic or natural
resources citation may be made in person before a magistrate in the county in
which the offense was charged, or by mail to the magistrate court of such county.
In such instances, a complaint must be filed at or prior to trial which complies
with the probable cause requirements of Rule 4. Upon motion of the defendant,
a continuance may be granted if necessary to provide time to meet any new
information set forth in the complaint and if the refusal to grant such
continuance would substantially prejudice the rights of the defendant.
(d) Motion to Dismiss. A defendant may seek dismissal of a traffic or
natural resources citation prior to trial by filing, on a form provided by the
magistrate court, a motion to dismiss. Such motion shall state with
particularity the grounds upon which dismissal is sought. Upon receipt of such
motion, the magistrate court shall promptly forward a copy of such motion to the
prosecuting attorney. If upon 10 days from the date of delivery of such motion
to the prosecuting attorney no objection is made, the magistrate may dismiss the
citation. If within 10 days from the date of delivery the prosecuting attorney
objects to such motion, the case shall proceed to hearing or trial.
(e) Failure to Appear. The magistrate court clerk on a regular basis shall
notify the prosecuting attorney of citations for which the defendant failed to
appear. The magistrate court clerk shall notify the Division of Motor Vehicles
of all such instances involving a failure to answer or appear in response to a
citation charging a violation of any provision of Chapter 17, 17A, 17B, 17C, or
17D of the West Virginia Code, and for any criminal violation charged on or after
July 9, 1993, with the exception of parking violations and other violations for
which a citation may be issued to an unattended vehicle. Such notification shall
be provided in the same form as that provided by Rule 5.3 and Rule 22 of these
Rules and shall be sent within 15 days from the scheduled date to answer or
appear unless the defendant answers or appears within that time.
Upon motion by the prosecuting attorney, the magistrate may issue a warrant
for the arrest of a defendant who without showing good cause has failed to answer
or appear at any stage of a proceeding in response to a citation.
Rule 8. Citation for Other Offense.
In lieu of the procedures set forth in Rules 3 and 4 of these Rules, a law
enforcement officer may issue a citation for any offense for which a citation in
lieu of an arrest is authorized by W. Va. Code § 62-1-5a. For such citations,
the procedures set forth in Rules 7(a), 7(b)(1), 7(c), and 7(e) shall apply.
9. .RULE 5. INITIAL APPEARANCE BEFORE THE MAGISTRATE.
(a) In General. An officer making an arrest under a warrant issued upon a
complaint or any person making an arrest without a warrant shall take the arrested
person without unnecessary delay before a magistrate within the county where the
arrest is made. If a person arrested without a warrant is brought before a
magistrate, a complaint shall be filed forthwith which shall comply with the
requirements of Rule 4(a) with respect to the showing of probable cause. When a
person, arrested with or without a warrant or given a summons, appears initially
before the magistrate, the magistrate shall proceed in accordance with the
applicable subdivision of this rule.
(b) Misdemeanor Offense Triable Before a Magistrate. If the charge against
the defendant is an offense triable by a magistrate, unless the defendant waives the
right to a trial on the merits, the magistrate shall proceed in accordance with the
rules of procedure set forth herein. The magistrate shall inform the defendant of
the complaint and any affidavit filed therewith, of the right to retain counsel, of
the right to request the assignment of counsel if the defendant is unable to obtain
counsel, and of the general circumstances under which the defendant may secure
pretrial release. The magistrate shall inform the defendant that he or she is not
required to make a statement and that any statement made by the defendant may be
used against him or her. The magistrate shall allow the defendant reasonable time
and opportunity to consult with counsel or with at least one relative or other
person for the purpose of obtaining counsel or arranging bail as provided by statute
or in these rules and shall admit the defendant to bail as provided by statute or
in these rules.
(c) Offenses Not Triable by the Magistrate. If the charge against the
defendant is to be presented for indictment, the defendant shall not be called upon
to plead. The magistrate shall inform the defendant of the complaint and any
affidavit filed therewith, of the right to retain counsel, of the right to request
the assignment of counsel if the defendant is unable to obtain counsel, and of the
general circumstances under which the defendant may secure pretrial release. The
magistrate shall inform the defendant that he or she is not required to make a
statement and that any statement made by the defendant may be used against him or
her. The magistrate shall also inform the defendant of the right to a preliminary
hearing. The magistrate shall allow the defendant reasonable time and opportunity
to consult with counsel or with at least one relative or other person for the
purpose of obtaining counsel or arranging bail as provided by statute or in these
rules and shall admit the defendant to bail as provided by statute or in these
rules.
If the offense is to be presented for indictment, a defendant is entitled to
a preliminary examination unless waived. If the defendant does not waive the
preliminary examination, the magistrate shall schedule a preliminary examination.
Such examination shall be held within a reasonable time but in any event not later
than 10 days following the initial appearance if the defendant is in custody and no
later than 20 days if the defendant is not in custody; provided, however, that the
preliminary examination shall not be held if the defendant is indicted or if an
information against the defendant is filed in circuit court before the date set for
the preliminary examination. With the consent of the defendant and upon a showing
of good cause, taking into account the public interest in the prompt disposition of
criminal cases, time limits specified in this subdivision may be extended one or
more times by a magistrate. In the absence of such consent by the defendant, time
limits may be extended by a judge of the circuit court only upon a showing that
extraordinary circumstances exist and that delay is indispensable to the interests
of justice.