H. B. 4354
(By Delegates Miley, Susman, Longstreth,
Ferro, Brown, Ross, Moore)
(Originating in the Committee on the Judiciary)
[February 16, 2010]
A BILL to amend and reenact §48-27-1002 of the Code of West
Virginia, 1931, as amended, relating to conditions and arrests
in domestic violence matters; including certain injunctive
relief and protective orders the violation of which allow
law-enforcement officers to seize weapons in possession of
domestic violence respondents.
Be it enacted by the Legislature of West Virginia:
That §48-27-1002 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-1002. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code to the
contrary, if a person is alleged to have committed a violation of
the provisions of subsection (a) or (b), section twenty-eight,
article two, chapter sixty-one of this code against a family or
household member, in addition to any other authority to arrest
granted by this code, a law-enforcement officer has authority to
arrest that person without first obtaining a warrant if:
(1) The law-enforcement officer has observed credible
corroborative evidence that an offense has occurred; and either:
(2) The law-enforcement officer has received, from the victim
or a witness, an oral or written allegation of facts constituting
a violation of section twenty-eight, article two, chapter sixty-one
of this code; or
(3) The law-enforcement officer has observed credible evidence
that the accused committed the offense.
(b) For purposes of this section, credible corroborative
evidence means evidence that is worthy of belief and corresponds to
the allegations of one or more elements of the offense and may
include, but is not limited to, the following:
(1) Condition of the alleged victim. -- One or more
contusions, scratches, cuts, abrasions, or swellings; missing hair;
torn clothing or clothing in disarray consistent with a struggle;
observable difficulty in breathing or breathlessness consistent
with the effects of choking or a body blow; observable difficulty
in movement consistent with the effects of a body blow or other
unlawful physical contact.
(2) Condition of the accused. -- Physical injury or other
conditions similar to those set out for the condition of the victim
which are consistent with the alleged offense or alleged acts of
self-defense by the victim.
(3) Condition of the scene. -- Damaged premises or
furnishings; disarray or misplaced objects consistent with the
effects of a struggle.
(4) Other conditions. -- Statements by the accused admitting
one or more elements of the offense; threats made by the accused in
the presence of an officer; audible evidence of a disturbance heard
by the dispatcher or other agent receiving the request for police
assistance; written statements by witnesses.
(c) Whenever any person is arrested pursuant to subsection (a)
of this section, the arrested person shall be taken before a
magistrate within the county in which the offense charged is
alleged to have been committed in a manner consistent with the
provisions of Rule 1 of the Administrative Rules for the Magistrate
Courts of West Virginia.
(d) If an arrest for a violation of subsection (c), section
twenty-eight, article two, chapter sixty-one of this code is
authorized pursuant to this section, that fact constitutes prima
facie evidence that the accused constitutes a threat or danger to
the victim or other family or household members for the purpose of
setting conditions of bail pursuant to section seventeen-c, article
one-c, chapter sixty-two of this code.
(e) Whenever any person is arrested pursuant to the provisions
of this article or for a violation of an order issued pursuant to
article five, section section
five hundred nine or subsections (b)
and (c), of section six hundred eight, article five of this chapter
the arresting officer, subject to the requirements of the
Constitutions of this state and of the United States:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of domestic
(2) May seize a weapon that is in plain view of the officer or
was discovered pursuant to a consensual search, as necessary for
the protection of the officer or other persons; and
(3) May seize all weapons that are possessed in violation of
a valid protective order.