COMMITTEE SUBSTITUTE
FOR
H. B. 2346
(By Delegates
Miley, Brown and Moore
)
(Originating in the House Committee on the Judiciary)
[February 8, 2011]
A BILL to amend and reenact §48-27-209 of the Code of West
Virginia, 1931, as amended, and to amend and reenact §61-7-7
of said code, all relating to domestic violence protective
orders; redefining the term "protective order"; and clarifying
when the enforcement of firearms possession prohibition can
occur after a domestic violence protective order is issued.
Be it enacted by the Legislature of West Virginia:
That §48-207-209 of the Code of West Virginia, 1931, as
amended,
be amended and reenacted, and that §61-7-7
of said code be
amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 27. DOMESTIC RELATIONS.
§48-27-209. Protective order defined.
"Protective order" means an emergency protective order entered
by a magistrate, family court judge or circuit court judge as a result of the emergency hearing, or a final protective order
entered by a family court judge or circuit court judge upon final
hearing.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
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
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 person received
actual notice and at which such person had an opportunity to
participate as defined by section two-hundred-nine, article twenty-
seven, chapter forty-eight of the code, and has received notice or
service pursuant to section one thousand-three of that article;
(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
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 person represents a
credible threat to the physical safety of such intimate partner or
child; or
(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against such 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 guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars or confined in the county jail for not less than
ninety days nor more than one year, or both.
(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
guilty of a felony and, upon conviction thereof, shall be confined
in a state correctional facility for not more than five years or
fined not more than five thousand dollars, or both. The provisions
of subsection (c) of this section shall 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 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.