Senate Bill No. 17
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
____________
[Introduced January 14, 1994; referred to the Committee
on the Judiciary.]
____________
A BILL to amend and reenact sections six, ten and fourteen,
article two-a, chapter forty-eight of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to amend article two, chapter sixty-one of said code by
adding thereto a new section, designated section twenty-
eight, all relating to the prevention of domestic violence;
protective orders and their enforcement; arrest in domestic
violence matters; and creating domestic violence criminal
acts and penalties.
Be it enacted by the Legislature of West Virginia:
That sections six, ten and fourteen, article two-a, chapter
forty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and
that article two, chapter sixty-one of said code be amended by
adding thereto a new section, designated section twenty-eight,
all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2A. PREVENTION OF DOMESTIC VIOLENCE.
§48-2A-6. Protective orders.
(a) At the conclusion of the hearing and if the petitioner
has proven the allegations of abuse by a preponderance of the
evidence, then the court shall issue a protective order which
shall direct the respondent to refrain from abusing the
petitioner and/or the minor children. The terms of a protective
order may include:
(1) Granting possession to the petitioner of the residence
or household jointly resided in at the time the abuse occurred;
(2) Awarding temporary custody of or establishing temporary
visitation rights with regard to minor children;
(3) Establishing temporary visitation rights with regard to
the minor children and requiring third party supervision of
visitations if necessary to protect the petitioner and/or the
minor children;
(4) Ordering the noncustodial parent to pay to the custodial
parent a sum for temporary support and maintenance of the
petitioner and children, if any;
(5) Ordering the respondent to pay to the petitioner a sum
for temporary support and maintenance of the petitioner, where
appropriate;
(6) Ordering the respondent to refrain from entering the
school, business or place of employment of the petitioner or
household members or family members for the purpose of violating
the protective order;
(7) Directing the respondent to participate in counseling;
or
(8) Ordering the respondent to refrain from contacting,
telephoning, communicating, harassing or verbally abusing the
petitioner in any public place.
(b) Any final protective order shall be for a fixed period
of time not to exceed
sixty ninety days:
Provided,
That if a
party has filed for divorce, separate maintenance or annulment
and no temporary or final divorce order is entered prior to
expiration of the protective order, upon petitioner's motion, the
protective order shall remain in effect until such temporary or
final divorce order is entered. The court may amend its order at
any time upon subsequent petition filed by either party. If the
court enters an initial order for a period of less than sixty
ninety days, it shall, after notice and hearing, extend its
initial order for the full sixty-day ninety-day period if it
finds the petitioner or the minor child or children continue to
need protection from abuse. The order shall be in full force and
effect in every county in this state. The order shall state that
it is in full force and effect in every county in this state.
(c) No order under this article shall in any manner affect
title to any real property.
(d) Certified copies of any order made under the provisions
of this section shall be issued to the petitioner, the respondent
and any law-enforcement agency having jurisdiction to enforce the
order, including the city police, the county sheriff's office orlocal office of the division of public safety within twenty-four
hours of the entry of the order.
(e) No mutual protective orders shall be granted unless both
parties have filed a petition under section four of this article
and have proven the allegations of abuse by a preponderance of
the evidence.
§48-2A-10. Enforcement procedure for temporary and final
protective orders.
(a) Upon issuance of a temporary order as provided in
section five of this article, and service thereof upon the
respondent, or under relief granted in a protective order as
provided in subsections (a) and (b), section six of this article
of which the respondent has notice, a copy of such order shall,
no later than the close of the next business day, be delivered by
the court or the clerk to a local office of the city police, the
county sheriff and the West Virginia department division of
public safety, where it shall be placed in a confidential file,
with access provided only to the law-enforcement agency and the
respondent named on said order:
Provided,
That upon the
expiration of any order issued pursuant to section five or six of
this article, any such law-enforcement agency which has any such
order on file shall immediately expunge its confidential file of
any reference thereto and destroy all copies of such order in its
possession, custody or control. A sworn affidavit may be
executed by the party awarded exclusive possession of the
residence or household, pursuant to an order entered undersubsection (b), section six of this article, and delivered to
such law-enforcement agency simultaneously with any such order,
giving his or her consent for a law-enforcement officer to enter
such residence or household, without a warrant, to enforce such
protective order or temporary order. Orders shall be promptly
served upon the respondent. Failure to serve shall not stay the
effect of a valid order if the respondent has actual notice of
the existence and contents of the order.
(b) Any person who observes a violation of such order or the
violated party may call a local law-enforcement agency, which
shall verify the existence of a current order, and shall direct
a law-enforcement officer to promptly investigate the alleged
violation.
(c) Where a law-enforcement officer observes a violation of
a valid order, he or she may shall immediately arrest the subject
of the order. In cases of violation of such orders occurring
outside the presence of the investigating an officer, the
petitioner the individual protected by the provisions of the
order may apply to a court in session in the county in which the
violation occurred or the county in which the order was issued
for a warrant of arrest. If the court finds probable cause to
believe that a valid order has been violated, the court shall
issue such warrant for the arrest of the subject of the order
wherever he or she may be found.
(d) Where there is an arrest, the officer shall take the
arrested person before a court or a magistrate and upon a findingof probable cause to believe a violation of an order has taken
place, the court or magistrate shall set a time and place for a
hearing, to take place within five days, and serve forthwith upon
the alleged violator an order to show cause why he or she should
not be held in contempt for violation of the prior order, which
unless waived by the defendant shall be by trial by a jury of six
persons. The remedies provided by this section shall be limited
to violations of a temporary order or protective order entered
pursuant to subsection (a) or (b), section six of this article.
A respondent who shall abuse the petitioner and/or minor children
in knowing and willful violation of the terms of a temporary or
final protective order issued under the provisions of this
article shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be confined in the county 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 two hundred fifty dollars nor
more than two thousand dollars.
§48-2A-14. Arrest in domestic violence matters; conditions.
(a) Notwithstanding any provision of this code, where a
family or household member is alleged to have committed a
violation of the provisions of subsection (b) or subsection (c)
of section nine, subsection (a) or subsection (b) of section
twenty-eight, article two, chapter sixty-one of this code
against another family or household member, in addition to any
other authority to arrest granted by this code, a law-enforcementofficer has authority to arrest the alleged perpetrator for said
offense when:
(1) The law-enforcement officer has observed credible
corroborative evidence that the offense has occurred; and
(2) The law-enforcement officer has obtained a signed
statement which has been voluntarily and knowingly executed, from
the alleged victim setting forth the essential elements of the
offense or has received such a statement from a witness to the
alleged violation; and received, from the victim or a witness, a
verbal 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 investigating the alleged
offense or another law-enforcement officer acting at the request
of said officer has received oral or telephonic authorization
from a magistrate having jurisdiction over the offense to arrest
the alleged perpetrator after the magistrate has been presented
with information sufficient to satisfy said magistrate that
probable cause exists to believe that the offense was committed.
has observed credible evidence that the accused committed the
offense.
(b) Notwithstanding any provision of this section, upon a
determination by the law-enforcement officer that credible
corroborative evidence exists to believe that a violation of
subsection (b) or (c), section nine, article two, chapter sixty-
one has occurred, and upon obtaining a signed statement from thealleged victim or a witness setting forth the essential elements
of either offense, or prior to the obtaining of the signed
statement but having been earlier presented with verbal evidence
sufficient to establish the existence of the essential elements
of either offense and being informed of a willingness to execute
a signed statement as provided for in subsection (a) of this
section, the law-enforcement officer may, if circumstances exist
which convince the law-enforcement officer that a danger exists
to the health and safety of the alleged victim, the law-
enforcement officer or another person, arrest the alleged
perpetrator at the scene of the alleged violation solely for the
purpose of protecting the health or safety of the alleged victim,
the law-enforcement officer or another person at the scene of the
violation in order to obtain the signed statement and seek the
magistrate's authorization for arrest.
(c) Any person arrested at the site of the alleged criminal
violation pursuant to the provisions of subsection (b) of this
section shall be immediately released if the magistrate fails to
authorize arrest or if the alleged victim or the witness refuses
to execute the statement provided for in this section. If the
magistrate authorizes arrest, all other provisions of this
section shall then be applicable.
(d) No law-enforcement officer shall be subject to any civil
or criminal action for false arrest or unlawful detention for
affecting an arrest pursuant to subsection (b) of this section
solely due to a magistrate's failure to authorize arrest or dueto the fact that the alleged victim or the witness refuses to
execute a signed statement as provided for in this section.
(e) (b) 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.
(f) Upon his or her appearance before the magistrate or
circuit court, the person arrested shall be supplied with a
written complaint setting forth the facts and circumstances
supporting the charge which complies with the provisions of West
Virginia Rule of Criminal Procedure 3.
(g) The provisions of this section shall not authorize any
law-enforcement officer to make an arrest outside of his or her
jurisdiction unless otherwise authorized by law.
(h) The consideration by a magistrate of a request for
arrest authorization made orally or by telephone shall constitute
responding in a domestic violence matter as required by Rule 1 of
the Administrative Rules for the Magistrate Courts of West
Virginia.
(i) (c) Where an arrest for a violation of subsection (c) of
section nine, twenty-eight, article two, chapter sixty-one of
this code is authorized pursuant to this section, such shall
constitute prima facie evidence that the person arrested
constitutes a threat or danger to the victim or other family orhousehold members for the purpose of setting conditions of bail
pursuant to section seventeen-c, article one-c, chapter sixty-two
of this code.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-28. Domestic violence. -- Criminal acts.
(a)
Domestic battery.
-- If any family or household member
unlawfully and intentionally makes physical contact of an
insulting or provoking nature with another family or household
member or unlawfully and intentionally causes physical harm to
another family or household member, he or she is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail for not more than twelve months, or fined not more than five
hundred dollars or both fined and confined.
(b)
Domestic assault.
-- If any family or household member
unlawfully attempts to commit a violent injury of another family
or household member or unlawfully commits an act which places
another family or household member in reasonable apprehension of
immediately receiving a violent injury, he or she is guilty of a
misdemeanor, and, upon conviction thereof, shall be confined in
jail for not more than six months, or fined not more than one
hundred dollars, or both fined and confined.
(c)
Third offense.
-- A family or household member who has
been convicted of a third or subsequent domestic battery and/or
domestic assault as defined in this section, assault and/or
battery as defined in section nine of this article when committedagainst a family or household member, or any combination of such
offenses, is guilty of a felony if such offense occurs within ten
years of a prior conviction of any of these offenses, and, upon
conviction thereof, shall be confined in the penitentiary not
less than one nor more than five years and fined not exceeding
five hundred dollars.
(d) For the purposes of this section the term "family or
household member" means "family or household member" as defined
in section two, article two-a, chapter forty-eight of this code.
(e) A person charged with violation of this section may not
also be charged with a violation of subsection (b) or subsection
(c) of section nine of this article.
(f) Law-enforcement agencies and officers are not liable
for personal injuries or property damage that occurs in the
course of any good faith effort to protect a victim of domestic
violence, including, but not limited to, action taken during the
course of arrest, an attempt to separate the parties, or to
enforce a court order, or action taken during the transportation
of the victim to a shelter, hospital or other authorized place.
NOTE: The purpose of this bill is to lengthen the allowed
time for protective orders and require immediate arrest of the
subject of an order who is observed violating the order by a law-
enforcement officer. The bill eliminates the requirement that a
magistrate be called before a law-enforcement officer may arrest
a probable perpetrator of domestic violence. The bill also
creates the new crimes of domestic battery and domestic assault.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§61-2-28 is a new section, therefore, strike-throughs and
underscoring have been omitted.
Email
Webmaster | © 2024 West Virginia Legislature **
