ENGROSSED
Senate Bill No. 110
(By Senators Wooton, Ball, Bowman, Dittmar, Fanning, Hunter,
Oliverio, Ross, Schoonover, Snyder, White, Buckalew, Deem, Kimble
and Scott)
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[Originating in the Committee on the Judiciary;
reported February 21, 1997.]
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A BILL 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,
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 the expungement of certain
juvenile records; 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,
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. 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 has
been made relative to 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 may then be referred to a magistrate for trial, if
otherwise cognizable by a magistrate.
(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 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 subsections
(e), (f) or (g) of this section shall have the right to directly
appeal an order of transfer to the supreme court of appeals of
the state of West Virginia:
Provided, That notice of intent to
appeal and a request for transcript 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-d 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) 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. 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.
(2) 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 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. Expungement 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 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 expunged by
operation of law if the juvenile is subsequently acquitted or
found guilty only of a nontransferable offense, or if the offense
which prompted the waiver or transfer to criminal jurisdiction is
subsequently dismissed.
(b) (c) To expunge 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 and shall be securely
sealed and filed in such a manner that no one can determine the
identity of the juvenile.
(c) (d) Expunged records cannot be opened except upon order
of the circuit court.
(d) (e) Expungement 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 not be expunged.
(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.
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(Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)
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