ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2123
(By Delegates Givens, Douglas and Staton)
[Passed March 19, 1997; in effect from passage.]
AN ACT to amend and reenact sections ten, seventeen and eighteen,
article five, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to amend and reenact section one, article seven of said
chapter, all relating to waiver and transfer of jurisdiction
of juvenile cases to the criminal jurisdiction of the court;
eliminating the right to an interlocutory appeal of certain
transfer orders; providing for public disclosure of certain
juvenile records; requiring that certain juvenile records be
sealed; and making technical revisions.
Be it enacted by the Legislature of West Virginia:
That sections ten, seventeen and eighteen, article five,
chapter forty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted;
and that section one, article seven of said chapter be amended
and reenacted, all to read as follows:
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-10. W
aiver and transfer of jurisdiction.
(a) Upon written motion of the prosecuting attorney filed at
least eight days prior to the adjudicatory hearing and with
reasonable notice to the
child, the parents, guardians or
custodians of the child and the child's counsel juvenile, his or her counsel, and his or
her parents, guardians or custodians, the court shall conduct a
hearing to determine if juvenile jurisdiction should or must be
waived and the proceeding transferred to the criminal
jurisdiction of the court. Any motion filed in accordance with
this section shall state, with particularity, the grounds for the
requested transfer, including the grounds relied upon
as set
forth in subsection (d), (e), (f)
and or (g) of this section and the
burden shall be upon the state to establish such grounds by clear
and convincing
proof evidence. Any hearing held under the provisions
of this section shall be held within seven days of the filing of
the motion for transfer unless it is continued for good cause.
(b) No inquiry relative to admission or denial of the
allegations of the charge or the demand for jury trial
shall may be
made by or before the court until
a decision shall have been made
relative to the court has determined
whether the proceeding is to be transferred to criminal
jurisdiction.
(c) The court shall transfer a juvenile proceeding to
criminal jurisdiction if a
child juvenile who has attained the age of
fourteen years
shall make makes a demand on the record to be transferred to
the criminal jurisdiction of the court.
Such cases The case may then be
referred to
a magistrate
or circuit court for trial, if otherwise
cognizable by a magistrate for further proceedings,
subject to the court's jurisdiction.
(d) The court shall transfer a juvenile proceeding to criminal jurisdiction if there is probable cause to believe that:
(1) The
child juvenile is at least fourteen years of age and has
committed the crime of treason under section one, article one,
chapter sixty-one of this code; the crime of murder under
sections one, two and three, article two of said chapter; the
crime of robbery involving the use or presenting of firearms or
other deadly weapons under section twelve of said article; the
crime of kidnapping under section fourteen-a of said article; the
crime of first degree arson under section one, article three of
said chapter; or the crime of sexual assault in the first degree
under section three, article eight-b of said chapter; or
(2) The
child juvenile is at least fourteen years of age and has
committed an offense of violence to the person which would be a
felony if the
child juvenile were an adult:
Provided, That the
child
juvenile has been previously adjudged delinquent for the
commission of an offense of violence to the person which would be
a felony if the
child juvenile were an adult; or
(3) The
child juvenile is at least fourteen years of age and has
committed an offense which would be a felony if the
child juvenile were
an adult:
Provided, That the
child juvenile has been twice previously
adjudged delinquent for the commission of an offense which would
be a felony if the
child juvenile were an adult.
(e) The court may transfer a juvenile proceeding to criminal
jurisdiction if there is probable cause to believe that the
child
juvenile would otherwise satisfy the provisions of subdivision
(1), subsection (d) of this section, but who is younger than fourteen years of age.
(f) The court may, upon consideration of the
child's juvenile's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that the
child juvenile would
otherwise satisfy the provisions of subdivision (2) or (3),
subsection (d) of this section, but who is younger than fourteen
years of age.
(g) The court may, upon consideration of the
child's juvenile's
mental and physical condition, maturity, emotional attitude, home
or family environment, school experience and similar personal
factors, transfer a juvenile proceeding to criminal jurisdiction
if there is probable cause to believe that:
(1) The
child juvenile, who is at least fourteen years of age, has
committed an offense of violence to
the a person which would be a
felony if the
child juvenile were an adult; or
(2) The
child juvenile, who is at least fourteen years of age, has
committed an offense which would be a felony if the
child juvenile were
an adult:
Provided, That the
child juvenile has been previously
adjudged delinquent for the commission of a crime which would be
a felony if the
child juvenile were an adult; or
(3) The
child juvenile, who is at least fourteen years of age,
used or presented a firearm or other deadly weapon during the
commission of a felony; or
(4) The
child juvenile has committed a violation of the provisions of section four hundred one, article four, chapter sixty-a of
this code which would be a felony if the
child juvenile were an adult
involving the manufacture, delivery or possession with the intent
to deliver a narcotic drug. For purposes of this subdivision,
the term "narcotic drug"
shall have has the same definition as that set
forth in section one hundred one, article one of said chapter.
(h) For purposes of this section, the term "offense of
violence" means an offense which involves the use or threatened
use of physical force against a person.
(i) If, after a hearing, the court directs the transfer of
any juvenile proceeding to criminal jurisdiction, it shall state
on the record the findings of fact and conclusions of law upon
which its decision is based or shall incorporate such findings of
fact and conclusions of law in its order directing transfer.
(j)
The child A juvenile who has been transferred to criminal
jurisdiction pursuant to the provisions of subsection (e), (f) or
(g) of this section, by an order of transfer entered after the
first day of July, one thousand nine hundred ninety-seven, shall
have the right to
either directly appeal an order of transfer to
the supreme court of appeals
of the state of West Virginia:
Provided, That or to appeal such order of transfer
following a conviction of the offense of transfer. If the
juvenile exercises the right to a direct appeal from an order of
transfer, the notice of intent to appeal and a request for
transcript
shall be filed within ten days from the date of the
entry of any such order
, and the petition for appeal shall be
presented to the supreme court of appeals within forty-five days from the entry of such order
, and that, in default thereof, the
right of appeal and the right to object to such order of transfer
shall be waived and may not thereafter be asserted. The provisions of article five,
chapter fifty-eight of this code pertaining to the appeals of
judgments in civil actions shall apply to appeals under this
chapter except as herein modified. The court may, within forty- five days of the entry of the order of transfer, by appropriate
order, extend and reextend the period in which to file the
petition for appeal for such additional time, not to exceed a
total exten
sion of
sixty days, as in the court's opinion may be
necessary for prepara
tion of the transcript:
Provided, however, That the
request for such transcript was made by the party seeking appeal
within ten days of entry of such order of transfer. In the event
any such notice of intent to appeal and request for transcript be
timely filed, proceedings in criminal court shall be stayed upon
motion of the defendant pending final action of the supreme court
of appeals thereon.
§49-5-17. Confidentiality of juvenile
records.
(a) Records of a juvenile proceeding conducted under this
chapter are not public records and
therefore, they shall not be disclosed to
anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this
section, a copy of a juvenile's records shall automatically be
disclosed to certain school officials, subject to the following
terms and conditions:
(1) Only certain types of juvenile records shall be
disclosed. These include and are limited to cases in which:
(A) The juvenile has been charged with an offense which would be a
crime felony if
it was committed by the juvenile were an adult; and
(i) The offense involves violence against another person;
(ii) The offense involves possession of a dangerous or
deadly weapon; or
(iii) The offense involves possession or delivery of a
controlled substance as that term is defined in
chapter 60A-1-
101(d) section one
hundred one, article one, chapter sixty-a of this code; and
(B) The juvenile case has proceeded to a point where one or
more of the following has occurred:
(i) A judge, magistrate or referee has determined that there
is probable cause to believe that the juvenile committed the
offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile
on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile
into an improvement period in accordance with section nine,
article five, chapter forty-nine of this code; or
(iv) Some other type of disposition has been made of the
case other than dismissal.
(2) The circuit court for each judicial circuit in West
Virginia shall designate one person to supervise the disclosure
of juvenile records to certain school officials.
(3) If the juvenile attends a West Virginia public school,
the person designated by the circuit court shall automatically
disclose all records of a juvenile case to the county
superintendent of schools in the county in which the juvenile attends school. The person designated by the circuit court shall
also automatically disclose all records of a juvenile case to the
principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West
Virginia, the person designated by the circuit court shall
determine the identity of the highest ranking person at that
school, and shall automatically disclose all records of a
juvenile's case to that person.
(5) If the juvenile does not attend school at the time the
juvenile's case is pending, the person designated by the circuit
court shall not transmit the juvenile's records to any school.
However, the person designated by the circuit court shall
transmit the juvenile's records to any school in West Virginia
which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not
automatically transmit juvenile records to a school which is not
located in West Virginia. Instead, the person designated by the
circuit court shall contact the out-of-state school, inform it
that juvenile records exist, and make an inquiry regarding
whether the laws of that state permit the disclosure of juvenile
records. If so, the person designated by the circuit court shall
consult with the circuit judge who presided over the case to
determine whether the juvenile records should be disclosed to the
out-of-state school. The circuit judge shall have discretion in
determining whether to disclose the juvenile records, and shall
consider whether the other state's law regarding disclosure provides for sufficient confidentiality of juvenile records,
using this section as a guide. If the circuit judge orders the
juvenile records to be disclosed, they shall be disclosed in
accordance with the provisions of subdivision (7) of this
subsection.
(7) The person designated by the circuit court shall
transmit the juvenile's records to the appropriate school
official under cover of a letter emphasizing the confidentiality
of such records and directing the official to consult this
section of the code. A copy of this section of the code shall be
transmitted with the juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely
confidential by the school official to whom they are transmitted,
and nothing contained within the juvenile's records shall be
noted on the juvenile's permanent educational record. The
juvenile records are to be maintained in a secure location and
are not to be copied under any circumstances. However, the
principal of a school to whom the records are transmitted shall
have the duty to disclose the contents of those records to any
teacher who teaches a class in which the subject juvenile is
enrolled and to the regular driver of a school bus in which the
subject juvenile is regularly transported to or from school.
Furthermore, any school official to whom the juvenile's records
are transmitted may disclose the contents of such records to any
adult within the school system who, in the discretion of the
school official, has the need to be aware of the contents of those records.
(9) If for any reason a juvenile ceases to attend a school
which possesses that juvenile's records, the appropriate official
at that school shall seal the records and return them to the
circuit court which sent them to that school. If the juvenile
has changed schools for any reason, the former school shall
inform the circuit court of the name and location of the new
school which the juvenile attends or will be attending. If the
new school is located within West Virginia, the person designated
by the circuit court shall forward the juvenile's records to the
juvenile's new school in the same manner as provided in
subdivision (7) of this subsection. If the new school is not
located within West Virginia, the person designated by the
circuit court shall handle the juvenile records in accordance
with subdivision (6) of this subsection.
If the juvenile has been found
to be not guilty of an offense for
which records were previously forwarded to the juvenile's school
on the basis of a finding of probable cause, the circuit court
shall not forward those records to the juvenile's new school.
However, this shall not affect records related to other prior or
future offenses. If the juvenile has graduated or quit school,
or will otherwise not be attending another school, the circuit
court shall retain the juvenile's records and handle them as
otherwise provided in this article.
(10) Under no circumstances shall one school transmit a
juvenile's records to another school.
(11) Under no circumstances shall juvenile records be
automatically transmitted to a college, university or other post- secondary school.
(12) No one shall suffer any penalty, civil or criminal, for
accidentally or negligently attributing certain juvenile records
to the wrong person. However, such person shall have the
affirmative duty to promptly correct any mistake that he or she
has made in disclosing juvenile records when the mistake is
brought to his or her attention. A person who intentionally
attributes false information to a certain person shall be
subjected to both criminal and civil penalties, in accordance
with subsection
(d) (e) of this section.
(13) If a judge, magistrate or referee has determined that
there is probable cause to believe that a juvenile has committed
an offense but there has been no final adjudication of the
charge, the records which are transmitted by the circuit court
shall be accompanied by a notice which clearly states in bold
print that there has been no determination of delinquency and
that our legal system requires a presumption of innocence.
(c) Notwithstanding the provisions of subsection (a) of this
section, juvenile records may be disclosed, subject to the
following terms and conditions:
(1) If a juvenile case is transferred to the criminal
jurisdiction of the circuit court
, the juvenile records of that
particular case may be disclosed if the juvenile who is
transferred fails to timely file an appeal of the transfer order; files a timely appeal of the transfer order but the Supreme Court
of Appeals of West Virginia refuses to hear the appeal; or files
a timely appeal of the transfer order which is affirmed by the
Supreme Court of Appeals of West Virginia. All records of the
case shall be open to public inspection following any of these
occurrences. These records shall be handled pursuant to all of
the same strictures, guidelines and requirements of law which
exist regarding disclosure of records for adults. pursuant to the provisions of
subsection (c) or (d), section ten of this article, the juvenile
records shall be open to public inspection.
(2) If a juvenile case is transferred to the criminal
jurisdiction of the circuit court pursuant to the provisions of
subsection (e), (f) or (g), section ten of this article, the
juvenile records shall be open to public inspection only if the
juvenile fails to file a timely appeal of the transfer order, or
the supreme court of appeals refuses to hear or denies an appeal
which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a
court has determined there is a probable cause to believe the
juvenile committed an offense set forth in subsection (g),
section ten of this article, but the case is not transferred to
criminal jurisdiction, the juvenile records shall be open to
public inspection pending trial only if the juvenile is released
on bond and no longer detained or adjudicated delinquent of the
offense.
(4) If a juvenile is younger than fourteen years of age and
a court has determined there is probable cause to believe that
the juvenile committed the crime of murder under section one, two
or three, article two, chapter sixty-one of this code, or the
crime of sexual assault in the first degree under section three,
article eight-b of said chapter, but the case is not transferred
to criminal jurisdiction, the juvenile records shall be open to
public inspection pending trial only if the juvenile is released
on bond and no longer detained or adjudicated delinquent of the
offense.
(2) (5) Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the
juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the
juvenile which requests such records for the purpose of a
presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian,
or the juvenile's counsel;
(D) The officials of a public institution to which the
juvenile is committed if they require such records for transfer,
parole or discharge; or
(E) A person who is conducting research. However, juvenile
records
shall may be disclosed for research purposes only upon the
condition that information which would identify the subject
juvenile or the juvenile's family shall not be disclosed.
(d) Any records open to public inspection pursuant to the
provisions of this section are subject to the same requirements
governing the disclosure of adult criminal records.
(d) (e) Any person who willfully violates this section shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars,
incarcerated not more
than six months, or be both fined and incarcerated. Furthermore,
a violator of this section shall be liable for damages in the
amount of three hundred dollars or the actual amount of damages,
whichever is greater. or confined in the
county or regional jail for not more than six months, or both so
fined and confined, and shall be liable for damages in the amount
of three hundred dollars or actual damages, whichever is greater.
§49-5-18. Sealing of juvenile records.
(a) One year after the juvenile's eighteenth birthday, or one year after personal or juvenile jurisdiction has terminated,
whichever is later, the records of a juvenile proceeding
conducted under this chapter, including, but not limited to, law- enforcement files and records, shall be
expunged sealed by operation of
law.
(b) The records of a juvenile proceeding in which a juvenile
was transferred to criminal jurisdiction pursuant to the
provisions of section ten of this article shall be sealed by
operation of law if the juvenile is subsequently acquitted or
found guilty only of an offense other than an offense upon which
the waiver or order of transfer was based, or if the offense upon
which the waiver or order of transfer was based is subsequently
dismissed.
(b) (c) To
expunge seal juvenile records, they shall be returned to the
circuit court in which the case was pending and be kept in a
separate confidential file. The records shall be physically
marked to show that they have been
expunged sealed and shall be securely
sealed and filed in such a manner that no one can determine the
identity of the juvenile.
(c) (d) Expunged Sealed records
cannot may not be opened except upon order of
the circuit court.
(d) (e) Expungement Sealing of juvenile records has the legal effect of
extinguishing the offense as if it never occurred.
(e) (f) The records of a juvenile convicted under the criminal
jurisdiction of the circuit court pursuant to subdivision (1),
subsection (d), section ten of this article
shall may not be
expunged sealed.
(f) (g) Any person who willfully violates this section shall be
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than one thousand dollars,
incarcerated not more
than six months, or be both fined and incarcerated. Furthermore,
a violator of this section shall be liable for damages in the
amount of three hundred dollars or the actual amount of damages,
whichever is greater. or confined in the
county or regional jail for not more than six months, or both so
fined and confined, and shall be liable for damages in the amount
of three hundred dollars or actual damages, whichever is greater.
§49-7-1. Confidentiality of records.
All records of the state department, the court and its
officials, law-enforcement agencies and other agencies or
facilities concerning a child as defined in this chapter shall be
kept confidential and shall not be released: Provided, That such
records, except adoption records, juvenile court records and
records disclosing the identity of a complainant of child abuse
or neglect, shall be made available (1) where authorized by this
chapter; (2) to the child, parent, or the attorney of the child
or parent, whether or not in connection with judicial
proceedings; (3) with the written consent of the child or of
someone authorized to act in the child's behalf; or (4) pursuant
to subpoena or order of a court of record: Provided, however,
That a subpoena for such records may be quashed if the court
determines that disclosure is not for a bona fide purpose and
compromises the confidentiality intended by this section. The
official court file pertaining to the person who is the subject
of a neglect or abuse proceeding shall be open for inspection
only to the child, the child's parent or custodian, their counsel
and other parties to the proceedings before the court. No record or information shall be transmitted to any federal or
state agency except as specifically provided herein.
(a) Except as otherwise provided in this chapter, all
records and information concerning a child or juvenile which are
maintained by a state department, agency, court or law- enforcement agency shall be kept confidential and shall not be
released or disclosed to anyone, including any federal or state
agency.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
juvenile court records and records related to child abuse or
neglect proceedings shall be made available:
(1) Where otherwise authorized by this chapter;
(2) To the child, parent, or the attorney of the child or
parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to a subpoena or order of a court of record;
however, a subpoena for such records may be quashed by a court for good cause.
(c) Records related to child abuse or neglect proceedings
shall be made available for inspection only by the child, his or
her parents or custodian, the child's counsel and other parties
to the proceeding.
(d) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child
or juvenile shall be kept separate from the
records and files of adults and not included within the court
files. Law-enforcement records and files concerning a child
or
juvenile child shall
only be open to inspection pursuant to the
provisions of
section sections seventeen
and eighteen, article five of
this chapter.
(e) Any person who willfully violates
the provisions of this
section
shall be is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in
the county or regional jail
for not more than six months, or
both
such fine and imprisonment, be
both fined and confined. and A person convicted of violating the
provisions of this section shall
also be liable for damages in
the amount of three hundred dollars or actual damages, whichever
is greater.