SB 17 Text

ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 17
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on the Judiciary;
reported February 11, 1994.]
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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; extending the period of time for which protective orders may be effective; changing certain terminology; mandating law-enforcement officers to make arrests for observed violations of protective orders; authorizing certain other individuals to seek a warrant for the arrest of a person violating a protective order; revising the provisions governing the arrest of persons alleged to have committed certain crimes against family or household members; defining the term "credible corroborative evidence"; creating new

crimes and providing penalties therefor; and prohibiting actions for false arrest or unlawful detention against officers affecting arrests in connection with crimes involving domestic violence.
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 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 ninety days, it shall, after notice and hearing, extend its initial order for the full 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 everycounty 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 or local 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 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, anysuch 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 under subsection (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 shall immediately arrest the subject of the order. In cases of violation of such orders occurring outside the presence of an officer, any person authorized to file a petition under the provisions of section four of this article 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 shallissue 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 finding of 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 (a) or (b), section twenty-eight, article two, chapter sixty-one of this code against another family or household member, in addition to any otherauthority to arrest granted by this code, a law-enforcement officer 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 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 has observed credible evidence that the accused committed the offense.
(b) For purposes of this section, "credible corroborative evidence" shall have the same meaning ascribed to the term by legislative rule proposed by the governor's committee on crime, delinquency and correction as the same is authorized by legislative enactment during the regular session of the Legislature in the year one thousand nine hundred ninety-four.
(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) Where 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, such shall constitute prima facie evidence that the person arrested constitutes a threat or danger to the victim or other family or householdmembers 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 committed against a family or household member, or any combination of such offenses, is guilty of a felony if such offense occurs within tenyears 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 (c), section nine of this article.
(f) 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 this section or pursuant to section fourteen, article two-a, chapter forty-eight of this code.

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