H. B. 4545
(By Delegate Phillips)
[Introduced
February 18, 2010
; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §60A-12-1,
§60A-12-1a, §60A-12-2, §60A-12-2a, §60A-12-3, §60A-12-4,
§60A-12-5, §60A-12-6, §60A-12-6a, §60A-12-7, §60A-12-8,
§60A-12-9 and §60A-12-10, all relating to establishing the
"Drug Trafficking Distribution Registration Act".
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §60A-12-1, §60A-12-1a,
§60A-12-2, §60A-12-2a, §60A-12-3, §60A-12-4, §60A-12-5, §60A-12-6,
§60A-12-6a, §60A-12-7, §60A-12-8, §60A-12-9 and §60A-12-10, all to
read as follows:
ARTICLE 12. DRUG TRAFFICKING DISTRIBUTION REGISTRATION ACT.
§60A-12-1. Short title.
This article may be cited as the "Drug Trafficking Registration Act."
§60A-12-1a. Intent and findings.
(a) It is the intent of this article to assist law-enforcement
agencies' efforts to protect the public from drug trafficking
distribution offenders by requiring drug trafficking distribution
offenders to register with the State Police detachment in the
county where he or she shall reside and by making certain
information about drug trafficking distribution offenders available
to the public as provided in this article. It is not the intent of
the Legislature that the information be used to inflict retribution
or additional punishment on any person convicted of any offense
requiring registration under this article. This article is
intended to be regulatory in nature and not penal.
(b) The Legislature finds and declares that there is a
compelling and necessary public interest that the public have
information concerning persons convicted of drug trafficking
offenses in order to allow members of the public to adequately
protect themselves and their children from these persons.
(c) The Legislature also finds and declares that persons
required to register as drug trafficking distribution offenders
pursuant to this article have a reduced expectation of privacy
because of the state's interest in public safety.
§60A-12-2. Registration.
(a) The provisions of this article apply prospectively and not
retroactively.
(b) Persons required to register under the provisions of this
article shall register in person at the West Virginia State Police
detachment in the county of his or her residence, the county in
which he or she owns or leases habitable real property that he or
she visits regularly, the county of his or her place of employment
or occupation and the county in which he or she attends school or
a training facility, and in doing so, provide or cooperate in
providing, at a minimum, the following when registering:
(1) The full name of the registrant, including any aliases,
nicknames or other names used by the registrant;
(2) The address where the registrant intends to reside or
resides at the time of registration, the address of any habitable
real property owned or leased by the registrant that he or she
regularly visits: Provided, That a post office box may not be
provided in lieu of a physical residential address, the name and
address of the registrant's employer or place of occupation at the
time of registration, the names and addresses of any anticipated
future employers or places of occupation, the name and address of
any school or training facility the registrant is attending at the
time of registration and the names and addresses of any schools or
training facilities the registrant expects to attend;
(3) The registrant's social security number;
(4) A full-face photograph of the registrant at the time of
registration;
(5) A brief description of the crime or crimes for which the registrant was convicted;
(6) Fingerprints; and
(7) Information related to any motor vehicle, trailer or motor
home owned or regularly operated by a registrant, including vehicle
make, model, color and license plate number: Provided, That for
the purposes of this article, the term "trailer" means travel
trailer, fold-down camping trailer and house trailer as those terms
are defined in section one, article one, chapter seventeen-a of
this code.
(c) At the time the person is convicted or found not guilty by
reason of mental illness, mental retardation or addiction in a
court of this state of the crimes set forth in subsection (b) of
this section, the person shall sign in open court a statement
acknowledging that he or she understands the requirements imposed
by this article. The court shall inform the person so convicted of
the requirements to register imposed by this article and shall
further satisfy itself by interrogation of the defendant or his or
her counsel that the defendant has received notice of the
provisions of this article and that the defendant understands the
provisions. The statement, when signed and witnessed, constitutes
prima facie evidence that the person had knowledge of the
requirements of this article. Upon completion of the statement,
the court shall provide a copy to the registry. Persons who have
not signed a statement under the provisions of this subsection and
who are subject to the registration requirements of this article must be informed of the requirement by the State Police whenever
the State Police obtain information that the person is subject to
registration requirements.
(d) The State Police shall maintain a central registry of all
persons who register under this article and shall release
information only as provided in this article. The information
required to be made public by the State Police by section five of
this article is to be accessible through the Internet. No
information relating to telephone or electronic paging device
numbers a registrant has or uses may be released through the
Internet.
For the purpose of this article, "drug trafficking" means any
person convicted of: (1) Manufacturing, delivering or possessing
with intent to manufacture or deliver in violation of section four
hundred one, article four of this chapter, or; (2) transporting of
a controlled substance in violation of section four hundred nine,
article four of this chapter.
§60A-12-2a. Creation of drug trafficking distribution offender
registration advisory board.
(a) There is hereby created within the Department of Military
Affairs and Public Safety a Drug Trafficking Distribution Offender
Registration Advisory Board consisting of a minimum of five members
appointed by the secretary of the Department of Military Affairs
and Public Safety. At least two of the members shall be experts in
the field of the behavior and treatment of substance abusers, and each shall be a physician, psychologist or social worker in the
employ of this state appointed by the secretary in consultation
with the Director of the Division of Health. The remaining members
shall be victims rights advocates and representatives of law-
enforcement agencies. Members of the board shall be reimbursed
their reasonable expenses pursuant to the rules promulgated by the
Department of Administration for the reimbursement of expenses of
state officials and employees and shall receive no other
compensation for their services. The board shall utilize the staff
of the division or office within the Department of Military Affairs
and Public Safety designated by the secretary thereof in carrying
out its duties and responsibilities as set forth in this article.
(b) The board shall assist the circuit courts of this state in
determining whether persons convicted of drug trafficking offenses
are violent drug traffickers or abusers.
§60A-12-3. Change in registry information.
When any person required to register under this article
changes his or her residence, address, place of employment or
occupation, motor vehicle, trailer or motor home information
required by section two of this article, or school or training
facility which he or she is attending, or when any of the other
information required by this article changes, he or she shall,
within ten business days, inform the West Virginia State Police of
the changes in the manner prescribed by the Superintendent of State
Police in procedural rules promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code:
Provided, That when any person required to register under this
article changes his or her residence, place of employment or
occupation or school or training facility he or she is attending
from one county of this state to another county of this state, he
or she shall inform the West Virginia State Police detachment in
both counties within ten business days of the change in the manner
prescribed by the superintendent in procedural rules promulgated in
accordance with the provisions of article three, chapter twenty-
nine-a of this code.
§60A-12-4. Duration.
(a) A person required to register under the terms of this
article shall continue to comply with this section, except during
ensuing periods of incarceration or confinement, until:
(1) Ten years have elapsed since the person was released from
prison, jail or a mental health facility or ten years have elapsed
since the person was placed on probation, parole or supervised or
conditional release. The ten year registration period may not be
reduced by the drug trafficking distribution offender's release
from probation, parole or supervised or conditional release; or
(2) For the life of that person if that person: (A) Has one
or more prior convictions or has previously been found not guilty
by reason of mental illness, mental retardation or addiction for
any qualifying offense referred to in this article; or (B) has been
convicted or has been found not guilty by reason of mental illness, mental retardation or addiction of a qualifying offense as referred
to in this article, and upon motion of the prosecuting attorney,
the court finds by clear and convincing evidence, that the
qualifying offense involved multiple victims or multiple violations
of the qualifying offense.
(b) A person whose conviction is overturned for the offense
which required them to register under this article shall, upon
petition to the court, have their name removed from the registry.
§60A-12-5. Distribution and disclosure of information; community
information programs by prosecuting attorney and
State Police; petition to circuit court.
(a) Within five business days after receiving any notification
as described in this article, the State Police shall distribute a
copy of the notification statement to:
(1) The supervisor of each county and municipal law-
enforcement office and any campus police department in the city and
county where the registrant resides, owns or leases habitable real
property that he or she regularly visits, is employed or attends
school or a training facility;
(2) The county superintendent of schools in each county where
the registrant resides, owns or leases habitable real property that
he or she regularly visits, is employed or attends school or a
training facility; and
(3) The Federal Bureau of Investigation (FBI).
(b) Information concerning persons whose names are contained in the drug trafficking distribution offender registry is not
subject to the requirements of the West Virginia Freedom of
Information Act, as set forth in chapter twenty-nine-b of this
code.
(c) The State Police shall maintain and make available to the
public at least quarterly the list of all persons who are required
to register pursuant to this article.
(d) The State Police may furnish information and documentation
required in connection with the registration to authorized law-
enforcement, campus police and governmental agencies of the United
States and its territories, of foreign countries duly authorized to
receive the same, of other states within the United States and of
the State of West Virginia upon proper request stating that the
records will be used solely for law-enforcement-related purposes.
The State Police may disclose information collected under this
article to federal, state and local governmental agencies
responsible for conducting preemployment checks. The State Police
also may disclose information collected under this article to the
Division of Motor Vehicles pursuant to the provisions of section
three, article two, chapter seventeen-b of this code.
(e) An elected public official, public employee or public
agency is immune from civil liability for damages arising out of
any action relating to the provisions of this section except when
the official, employee or agency acted with gross negligence or in
bad faith.
§60A-12-6. Duties of institution officials.
In addition to the duties imposed by sections two and four of
this article, the official in charge of the place of confinement
shall inform any person required to register under this article,
before parole or release, of the duty to register. Further, the
official shall obtain the full address of the person and a
statement signed by the person acknowledging that the person has
been informed of his or her duty to register.
§60A-12-6a. Release of information to the Drug Trafficking
Offender Registry.
Upon the request of the West Virginia State Police, agencies
in possession of records produced in conjunction with
investigation, prosecution, adjudication, incarceration, probation,
parole or presentence review of a drug trafficking distribution
offender and any other records produced in conjunction with a drug
trafficking distribution offense shall provide those records to the
State Police.
§60A-12-7. Information shall be released when person moves out of
state.
A person who is required to register pursuant to the
provisions of this article, who intends to move to another state or
country shall at least ten business days prior to such move notify
the State Police of his or her intent to move and of the location
to which he or she intends to move, or if that person is incarcerated he or she shall notify correctional officials of his
or her intent to reside in some other state or country upon his or
her release, and of the location to which he or she intends to
move. Upon such notification, the State Police shall notify law-
enforcement officials of the jurisdiction where the person
indicates he or she intends to reside of the information provided
by the person under the provisions of this article.
§60A-12-8. Failure to register or provide notice of registration
changes; penalty; penalty for aiding and abetting.
(a) Each time a person has a change in any of the registration
information as required by this article and knowingly fails to
register the change or changes, each failure to register each
separate item of information changed shall constitute a separate
offense under this section.
(b) Except as provided in this section, any person required to
register for ten years pursuant to section four of this article who
knowingly provides materially false information or who refuses to
provide accurate information when so required by the terms of this
article, or who knowingly fails to register or knowingly fails to
provide a change in any required information as required by this
article, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $250 nor more than $10,000 or confined
in jail not more than one year, or both. Any person convicted of
a second offense under this subsection is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than five
years. Any person convicted of a third or subsequent offense under
this subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than five nor more than twenty-five years.
(c) Any person required to register for life pursuant to this
article who knowingly provides materially false information or who
refuses to provide accurate information when so required by the
terms of this article, or who knowingly fails to register or
knowingly fails to provide a change in any required information as
required by this article, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than one year nor more than five years. Any
person convicted of a second or subsequent offense under this
subsection is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than ten nor more than twenty-five years.
(d) In addition to any other penalty specified for failure to
register under this article, any person under the supervision of a
probation officer, parole officer or any other sanction short of
confinement in jail or prison who knowingly refuses to register or
who knowingly fails to provide a change in information as required
by this article is subject to immediate revocation of probation or
parole and returned to confinement for the remainder of any
suspended or unserved portion of his or her original sentence.
(e) Notwithstanding the provisions of subsection (c) of this
section, any person required to register as a drug trafficking
distribution offender pursuant to this article who knowingly
provides materially false information or who refuses to provide
accurate information when so required by terms of this article or
who knowingly fails to register or knowingly fails to provide a
change in any required information as required by this article is
guilty of a felony and, upon conviction thereof, shall, for a first
offense, be confined in a state correctional facility not less than
two nor more than ten years and for a second or subsequent offense,
is guilty of a felony and, shall be confined in a state
correctional facility not less than fifteen nor more than thirty-
five years.
(f) Any person who knows or who has reason to know that a drug
trafficking distribution offender is not complying, or has not
complied, with the requirements of this section and who, with the
intent to assist the drug trafficking distribution offender in
eluding a law-enforcement agency that is seeking to find the drug
trafficking distribution offender to question the drug trafficking
distribution offender about, or to arrest the drug trafficking
distribution offender for, his or her noncompliance with the
requirements of this section:
(1) Withholds information from, the law-enforcement agency
about the drug trafficking distribution offender's noncompliance
with the requirements of this section and, if known, the whereabouts of the drug trafficking distribution offender; or
(2) Harbors, or attempts to harbor, or assists another person
in harboring or attempting to harbor, the drug trafficking
distribution offender; or
(3) Conceals or attempts to conceal, or assists another person
in concealing or attempting to conceal, the drug trafficking
distribution offender; or
(4) Provides information to the law-enforcement agency
regarding the drug trafficking distribution offender which the
person knows to be false information is guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than $250 nor
more than $10,000 or confined in jail not more than one year, or
both: Provided, That where the person assists or seeks to assist
a drug trafficking distribution offender whose violation of this
section would constitute a felony, the person is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than five
years.
§60A-12-9. Registration of out-of-state offenders.
(a) When any probation or parole officer accepts supervision
of and has legal authority over any person required to register
under this article from another state under the terms and
conditions of the uniform act for out-of-state parolee supervision
established under article six, chapter twenty-eight of this code,
the officer shall give the person written notice of the registration requirements of this section and obtain a signed
statement from the person required to register acknowledging the
receipt of the notice. The officer shall obtain and submit to the
State Police the information required in section two of this
article.
(b) Any person:
(1) Who resides in another state or federal or military
jurisdiction;
(2) Who is employed, carries on a vocation, is a student in
this state, is a visitor to this state for a period of more than
fifteen continuous days or owns or leases habitable real property
in this state that he or she regularly visits; and
(3) Who is required by the state, federal or military
jurisdiction in which he or she resides to register in that state,
federal or military jurisdiction as a drug trafficking distribution
offender, or has been convicted of a violation in that state,
federal or military jurisdiction that is similar to a violation in
this article requiring registration as a drug trafficking
distribution offender in this state, shall register in this state
and otherwise comply with the provisions of this article.
(c) Any person changing residence to this state from another
state or federal or military jurisdiction who is required to
register as a drug trafficking distribution offender under the laws
of that state or federal or military jurisdiction shall register as
a drug trafficking distribution offender in this state.
§60A-12-10. Address verification.
All registrants, including those for whom there has been no
change in registration information since their initial registration
or previous address verification, must report, in the month of
their birth, to the State Police detachment in their county or
counties of registration and must respond to all verification
inquiries or requests made by the State Police pursuant to this
section. The State Police may require registrants to periodically
submit to new fingerprints and photographs as part of the
verification process. The method of verification shall be in
accordance with internal management rules pertaining thereto
promulgated by the superintendent under authority of section
twenty-five, article two, chapter fifteen of this code.
NOTE: The purpose of this bill is to establish the "Drug
Trafficking Distribution Offender Registration Act"; this Act only
applies to manufacturing, delivering or possessing with intent to
manufacture or deliver a controlled substance, and, transporting of
a controlled substance; and also only applies prospectively and not
retroactively.
This article is new; therefore, it has been completely
underscored.
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