H. B. 2270
(By Delegate Miley)
[Introduced February 12, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-2-28 of the Code of West Virginia,
1931, as amended, relating to increasing certain penalties for
persons convicted of domestic battery and domestic assault
including the requirement that they complete an approved
batterers' course.
Be it enacted by the Legislature of West Virginia:
That §61-2-28 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-28. Domestic violence -- Criminal acts.
(a)
Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully and
intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in
a county or regional jail for not
more than twelve months, or fined not more than $500, or both,
and
shall complete a recognized and approved batterers' intervention
and anger management program.
(b)
Domestic assault. -- Any person who unlawfully attempts to
commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her family
or household member in reasonable apprehension of immediately
receiving a violent injury, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in
a county or regional jail
for not
less than twenty-four hours nor more than six months, or
fined not more than $100, or both,
and shall complete a recognized
and approved batterers' intervention and anger management program.
(c)
Second offense. -- Domestic assault or domestic battery.
A person convicted of a violation of subsection (a) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article where the victim was his or her 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 who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven,
of this chapter for a violation of subsection (a) or (b) of this
section, or a violation of subsection (b) or (c), section nine of
this article where 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 is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
a county or regional jail for not
less than sixty days nor more than one year, or fined not more than
$1,000, or both.
A person convicted of a violation of subsection (b) of this
section after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been convicted
of a violation of subsection (b) or (c), section nine of this
article where 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 having previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where 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 shall be confined
in
a county or regional jail for not less than thirty days nor more
than six months, or fined not more than $500, or both.
(d) Any person who has been convicted of a third or subsequent
violation of the provisions of subsection (a) or (b) of this
section, a third or subsequent violation of the provisions of
section nine of this article where the victim is a family or house
hold member, 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
who has previously been granted a period of pretrial diversion
pursuant to section twenty-two, article eleven of this chapter for
a violation of subsection (a) or (b) of this section or a violation
of the provisions of section nine of this 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 any
combination of convictions or diversions for these offenses, is
guilty of a felony if the offense occurs within ten years of a
prior conviction of any of these offenses and, upon conviction
thereof, shall be confined in a state correctional facility not
less than one nor more than five years or fined not more than
$2,500, or both.
(e) As used in this section, "family or household member"
means "family or household member" as defined in section two
hundred four, article twenty-seven, chapter forty-eight of this
code.
(f) A person charged with a violation of this section may not
also be charged with a violation of subsection (b) or (c), section
nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil or
criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to
section one thousand two, article twenty-seven, chapter forty-eight
of this code.
NOTE: The purpose of this bill is to increase certain
penalties for persons convicted of domestic battery and domestic
assault including the requirement that they complete an approved
batterers' course.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.