H. B. 2739
(By Delegates Webster, Frazier, Fleischauer,
Miley and Longstreth)
[Introduced February 23, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-27-311, §48-27-505, §48-27-701,
§48-27-902, §48-27-903 and §48-27-1002 of the Code of West
Virginia, 1931, as amended; and to amend said code by adding
two new sections, designated §48-27-1003 and §48-27-1004, all
relating to authorizing circuit clerks to use certified or
register mail for service of a protective order; requiring
magistrate court clerks to forward a copy of protective orders
to state and federal agencies; providing that law enforcement
attempt to serve protective orders within seventy-two hours of
issuance; authorizing a petitioner to file a criminal
complaint when a respondent possesses firearms in violation of
a protective order; providing a criminal penalty for
possessing firearms in violation of a protective order;
Providing for nonjudicial enforcement of state protective
orders; and providing civil and criminal immunity to
law-enforcement officers for acts or omissions arising out of the enforcement of a protective order.
Be it enacted by the Legislature of West Virginia:
That §48-27-311, §48-27-505, §48-27-701, §48-27-902,
§48-27-903 and §48-27-1002 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by
adding thereto two new sections, designated §48-27-1003 and
§48-27-1004, all to read as follows:
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-311. Service of process.
A If the clerk's office has not received the return of service
by law enforcement within five calendar days of entry of the
protective order, the clerk of the court shall mail by certified or
registered mail to the respondent at the respondent's last known
address a copy of the petition and protective order. If the clerk
does not have an address for the respondent or the certified mail
is returned undelivered then the protective order may be served on
the respondent by means of a Class I legal advertisement published
notice, with the publication area being the county in which the
respondent resides, published in accordance with the provisions of
section two, article three, chapter fifty-nine of this code if: (1)
The petitioner files an affidavit with the court stating that an
attempt at personal service pursuant to Rule 4 of the West Virginia
Rules of Civil Procedure has been unsuccessful or evidence is
adduced at the hearing for the protective order that the respondent has left the State of West Virginia; and (2) a copy of the order is
mailed by certified or registered mail to the respondent at the
respondent's last known residence and returned undelivered.
Any protective order issued by the court of this state which
is served in compliance with the provisions of Rule 4(f) of the West
Virginia Rules of Civil Procedure served outside the boundaries of
this state shall carry the same force and effect as if it had been
personally served within this state's boundaries.
§48-27-505. Time period a protective order is in effect; extension
of order; notice of order or extension.
(a) Except as otherwise provided in subsection
27-401 (d),
section four hundred one of this article, a protective order,
entered by the family court pursuant to this article, is effective
for either ninety days or one hundred eighty days, in the discretion
of the court. If the court enters an order for a period of ninety
days, upon receipt of a written request from the petitioner prior
to the expiration of the ninety-day period, the family court shall
extend its order for an additional ninety-day period.
(b) To be effective, a written request to extend an order from
ninety days to one hundred eighty days must be submitted to the
court prior to the expiration of the original ninety-day period.
A notice of the extension shall be sent by the clerk of the court
to the respondent by first-class mail, addressed to the last known
address of the respondent as indicated by the court file. The extension of time is effective upon mailing of the notice.
(c) Certified copies of any order entered or extension notice
made under the provisions of this section shall be served upon the
respondent by first class mail, addressed to the last known address
of the respondent as indicated by the court file, and delivered to
the petitioner and any law-enforcement agency having jurisdiction
to enforce the order, including the city police, the county
sheriff's office or local office of the West Virginia State Police
within twenty-four hours of the entry of the order. The protective
order shall be in full force and effect in every county of this
state.
(d) The family court may modify the terms of a protective order
upon motion of either party.
(e) The clerk of the circuit court shall cause a copy of any
protective order entered by the family court pursuant to the
provisions of this article or pursuant to the provisions of chapter
forty-eight of this code to be forwarded
to the magistrate or
magistrate court clerk and the magistrate or magistrate court clerk
shall forward a copy of the protective order to the appropriate
state and federal agency for registration of domestic violence
offenders as required by
state and federal law.
§48-27-701. Service of pleadings and orders by law-enforcement
officers.
Notwithstanding any other provision of this code to the contrary, all law-enforcement officers are hereby authorized to
serve all pleadings and orders filed or entered pursuant to this
article on Sundays and legal holidays. No law-enforcement officer
shall refuse to serve any pleadings or orders entered pursuant to
this article.
The service all protective orders issued pursuant to
this article shall be attempted by law enforcement no later than
seventy-two hours after entry of the order and law enforcement shall
continue to attempt service on the respondent until proper service
is obtained.
§48-27-902. Violations of protective orders; criminal complaints.
(a) When a respondent abuses the petitioner or minor children,
or both, or is physically present at any location, or continues to
contact, threaten or harass the petitioner, the minor children, or
both, by phone, voice mail, e-mail or other means, even if the
respondent is not physically present with the petitioner or minor
children at the time of the threats or harassment:
(1) In knowing and willful violation of the terms of an
emergency or final protective order under the provisions of this
article or section five hundred nine or six hundred eight, article
five of this chapter granting the relief pursuant to the provisions
of this article;
(2) In knowing and willful violation of the terms of a
protection order from another jurisdiction that is required to be
enforced pursuant to section three, article twenty-eight of this chapter; or
(3) In knowing and willful violation of the terms of a
condition of bail, probation or parole imposed in another state
which has the express intent or effect of protecting the personal
safety of a particular person or persons in violation of subdivision
(3), subsection (a), section seven, article twenty-eight of this
chapter then any person authorized to file a petition pursuant to
the provisions of section three hundred five of this article or the
legal guardian or guardian ad litem may file a petition for civil
contempt as set forth in section nine hundred one of this article.
(b) When a respondent knowingly and willfully possesses
firearms in violation of a valid protective order issued pursuant
to the provisions of this article.
(b) (c) When any such violation of a valid order has occurred,
the petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a warrant
for arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children
or who is physically present at any location, or continues to
contact, threaten or harass the petitioner, the minor children, or
both, by phone, voice mail, e-mail or other means, even if the
respondent is not physically present with the petitioner or minor children at the time of the threats or harassment in knowing and
willful violation of the terms of: (1) An emergency or final
protective order issued under the provisions of this article or
section five hundred nine or six hundred eight, article five of this
chapter granting relief pursuant to the provisions of this article;
or (2) a condition of bail, probation or parole which has the
express intent or effect of protecting the personal safety of a
particular person or persons is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in
the county or regional jail
for a period of not less than one day nor more than one year, which
jail term shall include actual confinement of not less than
twenty-four hours, and shall be fined not less than $250 nor more
than $2,000.
(b) A respondent who violates subsection (b) of section nine
hundred two of this article, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for a period of not
less than one day nor more than one year, which jail term shall
include actual confinement of not less than twenty-four hours, and
shall be fined not less than $250 nor more than $2,000.
(b) (c) A respondent who is convicted of a second or subsequent
offense under subsection (a)
or (b) of
this section
nine hundred two
of this article is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
the county or regional jail for not
less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and
fined not less than $500 nor more than $3,000, or both.
§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
article five, section five hundred nine, the arresting officer:
(1) Shall seize all weapons that are alleged to have been
involved or threatened to be used in the commission of domestic
violence;
and
(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 protection order.
§48-27-1003. Nonjudicial enforcement of order.
(a) A law-enforcement officer of this state, upon determining
that there is probable cause to believe that a valid protection
order exists and that the order has been violated, shall enforce the
order. Presentation of a protection order that identifies both the
protected individual and the respondent and that appears, on its
face, to be authentic and currently in effect constitutes probable cause to believe that a valid protection order exists. For the
purposes of this section, the protection order may be inscribed on
a intangible medium or may have been stored in an electronic or
other medium if it is retrievable in perceivable form. Presentation
of a certified copy of a protection order is not required for
enforcement.
(b) If a protection order is not presented, a law-enforcement
officer of this state may consider other credible information in
determining whether there is probable cause to believe that a valid
protection order exists.
(c) If a law-enforcement officer of this state determines that
an otherwise valid protection order cannot be enforced because the
respondent has not been notified of or served with the order, the
officer shall inform the respondent of the order, make a reasonable
effort to serve the order upon the respondent and allow the
respondent a reasonable opportunity to comply with the order before
enforcing the order.
§48-27-1004. Immunity.
This state or a local governmental agency, or a law-enforcement
officer, prosecuting attorney, clerk of court or any state or local
governmental official acting in an official capacity, is immune from
civil and criminal liability for an act or omission arising out of
the enforcement of a protection order or the detention or arrest of
an alleged violator of a protection order if the act or omission was done in good faith in an effort to comply with this article.
NOTE: The purpose of this bill is to enhance the service and
enforcement of domestic violence protective orders issued by state
courts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.