Senate Bill No. 275
(By Senators Foster, Bailey, Caruth, Dempsey, White, Barnes,
Plymale, McCabe and Love)
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[Introduced January 25, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §62-12-2 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
thereto a new section, designated §62-12-27, all relating to
the administration of polygraph examinations for risk
assessment and treatment purposes for sex offenders who are
on probation or parole.
Be it enacted by the Legislature of West Virginia:
That §62-12-2 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended
by adding thereto a new section, designated §62-12-27, all to
read as follows:
ARTICLE 12. PROBATION AND PAROLE.
§62-12-2. Eligibility for probation.
(a) All persons who are found guilty of or plead guilty to any felony, the maximum penalty for which is less than life
imprisonment, and all persons who are found guilty of or plead
guilty to any misdemeanor, shall be eligible for probation,
notwithstanding the provisions of sections eighteen and nineteen,
article eleven, chapter sixty-one of this code.
(b) The provisions of subsection (a) of this section to the
contrary notwithstanding, any person who commits or attempts to
commit a felony with the use, presentment or brandishing of a
firearm shall be ineligible for probation. Nothing in this
section shall apply to an accessory before the fact or a
principal in the second degree who has been convicted as if he or
she were a principal in the first degree if, in the commission of
or in the attempted commission of the felony, only the principal
in the first degree used, presented or brandished a firearm.
(c) (1) The existence of any fact which would make any
person ineligible for probation under subsection (b) of this
section because of the commission or attempted commission of a
felony with the use, presentment or brandishing of a firearm
shall not be applicable unless such fact is clearly stated and
included in the indictment or presentment by which such person is
charged and is either: (i) Found by the court upon a plea of
guilty or nolo contendere; or (ii) found by the jury, if the
matter be tried before a jury, upon submitting to such jury a
special interrogatory for such purpose; or (iii) found by the court, if the matter be tried by the court, without a jury.
(2) The amendments to this subsection adopted in the year
one thousand nine hundred eighty-one:
(A) Shall apply to all applicable offenses occurring on or
after the first day of August of that year;
(B) Shall apply with respect to the contents of any
indictment or presentment returned on or after the first day of
August of that year irrespective of when the offense occurred;
(C) Shall apply with respect to the submission of a special
interrogatory to the jury and the finding to be made thereon in
any case submitted to such jury on or after the first day of
August of that year or to the requisite findings of the court
upon a plea of guilty or in any case tried without a jury:
Provided, That the state shall give notice in writing of its
intent to seek such finding by the jury or court, as the case may
be, which notice shall state with particularity the grounds upon
which such finding shall be sought as fully as such grounds are
otherwise required to be stated in an indictment, unless the
grounds therefor are alleged in the indictment or presentment
upon which the matter is being tried;
(D) Shall not apply with respect to cases not affected by
such amendment and in such cases the prior provisions of this
section shall apply and be construed without reference to such
amendment; and insofar as such amendments relate to mandatory sentences without probation, all such matters requiring such
sentence shall be proved beyond a reasonable doubt in all cases
tried by the jury or the court.
(d) For the purpose of this section, the term "firearm"
shall mean any instrument which will, or is designed to, or may
readily be converted to, expel a projectile by the action of an
explosive, gunpowder, or any other similar means.
(e) In the case of any person who has been found guilty of,
or pleaded guilty to, a felony or misdemeanor under the
provisions of section twelve or twenty-four, article eight,
chapter sixty-one of this code, or under the provisions of
article eight-c or eight-b of said chapter, such person shall
only be eligible for probation after undergoing a physical,
mental and psychiatric study and diagnosis which shall include a
polygraph examination to assist in identifying sex offender
characteristics and treatment planning and which shall also
include an on-going treatment plan requiring active participation
in sexual abuse counseling at a mental health facility or through
some other approved program: Provided, That nothing disclosed by
the person during such study or diagnosis shall be made available
to any law-enforcement agency, or other party without that
person's consent, or admissible in any court of this state,
unless such information disclosed shall indicate the intention or
plans of the probationer to do harm to any person, animal, institution or property, in which case such information may be
released only to such persons as might be necessary for
protection of the said person, animal, institution or property.
(f) Any person who has been convicted of a violation of the
provisions of article eight-b, eight-c or sections five and six,
article eight-d, chapter sixty-one of this code, or of section
fourteen, article two, or of sections twelve and thirteen,
article eight, chapter sixty-one of this code, or of a felony
violation involving a minor of section six or seven, article
eight, chapter sixty-one of this code, or of a similar provision
in another jurisdiction shall be required to be registered upon
release on probation. Any person who has been convicted of an
attempt to commit any of the offenses set forth in this
subsection shall also be registered upon release on probation.
(g) The probation officer shall within three days of release
of the offender, send written notice to the State Police of the
release of the offender. The notice shall include:
(1) The full name of the person;
(2) The address where the person shall reside;
(3) The person's social security number;
(4) A recent photograph of the person;
(5) A brief description of the crime for which the person
was convicted;
(6) Fingerprints; and
(7) For any person determined to be a sexually violent
predator as defined in section two-a, article twelve, chapter
fifteen of this code, the notice shall also include:
(i) Identifying factors, including physical characteristics;
(ii) History of the offense; and
(iii) Documentation of any treatment received for the mental
abnormality or personality disorder.
§62-12-27. Polygraph examinations of sex offender probationers
and parolees.
(a) When a defendant is convicted of, pleads guilty to, or
enters a plea to an offense for which a person is required to
register as a sex offender under the provisions of article
twelve, chapter fifteen of this code, is granted probation or
other alternative to incarceration, the sentencing court shall
order the defendant, at his or her own expense, to submit to at
least one polygraph examination, at a reasonable cost, per year
to answer questions regarding his or her compliance with the
conditions of supervision, including conditions related to
treatment. The releasing or supervising authority may require
additional polygraph examinations for the same purpose, not to
exceed five per year. The polygraph may only be used as a risk
assessment and treatment tool. Test results of any polygraph
examination shall be provided to the defendant.
(b) When a defendant is convicted of, pleads guilty to, or enters a plea to an offense for which a person is required to
register as a sex offender under the provisions of article
twelve, chapter fifteen of this code, is granted parole, the
parole board shall order the parolee, at his or her own expense,
to submit to at least one polygraph examination per year to
answer questions regarding his or her compliance with the
conditions of supervision, including conditions related to
treatment. The Division of Corrections or parole officer may
require additional polygraph examinations for the same purpose,
not to exceed five per year. The polygraph may only be used as a
risk assessment and treatment tool. Test results of any
polygraph examination shall be provided to the defendant.
(c) In the event a person required to submit to polygraph
examinations as set forth under subsection (a) or (b) of this
section is unable to pay for the polygraph examination, that
person shall present an affidavit reflecting the inability to pay
for such testing to the circuit court of the county where the
person is being supervised. If it appears to the satisfaction of
the court or judge that such person is in fact unable to pay for
such testing, the court shall issue an order reflecting such
finding. Said order shall be forwarded to the Division of
Corrections and said testing shall be paid for by a fund
established by the Division of Corrections.
(d) Any polygraph examination conducted under subsection (a) or (b) of this section shall be conducted by a certified
polygraph analyst who:
(1) Is certified in post conviction sex offender testing as
prescribed by the American Polygraph Association;
(2) Has completed not less than twenty hours of American
Polygraph Association approved sex offender testing training
every other calendar year; and
(3) Uses standards approved by the American Polygraph
Association for sex offender testing.
(e) In the conduct of polygraph examinations of sex
offenders under subsections (a) and (b) of this section, no
certified polygraph analyst may:
(1) Conduct more than two full disclosure or sexual history
polygraph examinations in a twenty-four hour period; or
(2) Disclose any information gained during any full
disclosure or sexual history polygraph examination to any law-
enforcement agency or other party without the parolee's or
probationer's consent, nor shall any information or disclosure be
admissible in any court of this state, unless such information
disclosed indicates the intention or plan of the probationer or
parolee to do harm to any person, animal, institution or
property, in which case such information may be released only to
such persons as might be necessary for protection of said person,
animal, institution or property.
(3) Conduct more than two maintenance tests in a twenty-four
hour period;
(4) Conduct more than one full disclosure or sexual history
polygraph examination and more than two maintenance tests in a
twenty-four hour period; or
(5) Test the same parolee or probationer more than five
times in a year, to be calculated from the first test of the
parolee or probationer.
(f) No polygraph examination under subsection (a) or (b) of
this section may be conducted by a person who is a sworn peace
officer, within the boundaries of that officer's jurisdiction.
(g) As used in this section:
(1) "Certified polygraph analyst" means a person who has
been certified by the American Polygraph Association or other
accredited association recognized in this state as having
completed the requisite number of training hours in polygraph
analysis and a person who is a member in good standing with a
recognized accredited association.
(2) "Maintenance test" means a polygraph examination
administered to determine the probationer's or parolee's
compliance with the terms of supervision and treatment.
(3) "Full-disclosure polygraph" or "sexual history
polygraph" means a polygraph examination administered to
determine the entire sexual history of the probationer or parolee including, but not limited to, those crimes defined in section
two, article twelve, chapter fifteen and their attempts.
NOTE:
The purpose of this bill is to mandate the
administration of polygraph testing for those persons convicted
of sex crimes and later released on probation or parole. The
polygraph testing is only to be used as a risk assessment and
management tool.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§62-12-27 is new; therefore, strike-throughs and
underscoring have been omitted.