WEST virginia legislature

2018 regular session

Introduced

Senate Bill 546

By Senators Jeffries, Ojeda, Stollings, Cline, Romano, Prezioso, Beach, and Baldwin

[Introduced February 15, 2018; Referred
to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-3C-1, §15-3C-2, §15-3C-3, §15-3C-4, and §15-3C-5; and to amend and reenact §61-5-17 of said code, all relating to improving the ability of law enforcement to locate and return missing persons; establishing short title; declaring findings; defining terms; setting forth details of process for filing a missing persons report; detailing actions that must be taken by law enforcement upon filing of a missing persons report; authorizing reporting and obtaining of additional information under certain circumstances; improving the identification of human remains; improving the timely information and notification to family members of missing persons; authorizing expeditious record exchanges between national and state databases related to missing and unidentified persons; and creating a criminal offense of filing a false missing persons report.

Be it enacted by the Legislature of West Virginia:

CHAPTER 15.  PUBLIC SAFETY.

ARTICLE 3C.  MISSING PERSONs ACT.

§15-3C-1.  Short title.

This article shall be known and may be cited as the “Missing Persons Act.”

§15-3C-2.  Findings.

(a) The Legislature finds that:

(1) Public information can be one of the most effective tools in locating a missing person;

(2) Law-enforcement officers and other professionals specializing in the field of missing persons agree that the most critical moments in the search for a missing person are the first few hours immediately following the discovery that the individual is missing, asserting that if he or she is not found within 24 hours, it is unlikely that he or she will be found alive or without serious injury. The rapid dissemination of information, including a description of the missing person, details of how he or she became missing, and of any vehicle involved, to the citizens of the affected community and region is, therefore, critical;

(3) Alerted to the situation, the citizenry become an extensive network of eyes and ears serving to assist law enforcement in quickly locating and safely recovering the missing person;

(4) All forms of developing technologies are helpful in assisting law enforcement in rapidly responding to these alerts and are an additional tool for assuring the well-being and safety of our citizenry. Thus, the use of traffic video recording and monitoring devices for the purpose of surveillance of a suspect vehicle adds yet another set of eyes to assist law enforcement and aid in the safe recovery of the missing person.

(b) The Legislature declares that given the successes other states and regions have experienced in using missing person networks to quickly locate and identify persons, and, with the recent development of highway video recording and monitoring systems, it is altogether fitting and proper, and within the public interest, to establish these programs for West Virginia.

§15-3C-3.  Definitions.

As used in this article:

“CODIS” means the Federal Bureau of Investigation's Combined DNA Index System that allows the storage and exchange of DNA records submitted by federal, state and local forensic DNA laboratories. The term “CODIS” includes the National DNA Index System or NDIS administered and operated by the Federal Bureau of Investigation.

“Complainant” means a person who contacts law enforcement to file a missing persons report.

“Electronic communication device” means a cell telephone, personal digital assistant, electronic device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device.

“Lead law-enforcement agency” means the law-enforcement agency that initially receives report of a missing person and has primary responsibility for investigating a missing or unidentified person case.

“Missing person” means any person who is reported missing to a law-enforcement unit until located.

“National Crime Information Center” or “NCIC” means the nationwide, online computer telecommunications system maintained by the Federal Bureau of Investigations to assist authorized agencies in criminal justice and related law-enforcement objectives.

“Integrated Automated Fingerprint Identification System” or “IAFIS” means a national automated fingerprint identification and criminal history system maintained by the Federal Bureau of Investigation.

“National Missing and Unidentified Persons System” or “NamUs” means a national centralized repository and resource center for missing persons and unidentified decedent records.

“Unidentified person” means any person, living or deceased, who has not been identified through investigation for over 30 days. All human remains that have been recovered and not identified are included in this definition.

“Violent Criminal Apprehension Program” or “ViCAP” is a unit of the United States Federal Bureau of Investigation responsible for the analysis of serial violent and sexual crimes.

§15-3C-4.  Missing person reports and process.

(a) A person may file a complaint of a missing person with a law-enforcement agency having jurisdiction. The complaint shall include, but need not be limited to:

(1) Name of the missing person and his or her date of birth;

(2) Address of the missing person;

(3) Identifying characteristics of the missing person, including, if known, birthmarks, moles, tattoos, scars, height and weight, gender, race, current hair color and true or natural hair color, eye color, prosthetics, surgical implants, cosmetic implants, physical anomalies, and blood type;

(4) Description of the clothing the missing person was believed to be wearing and the items that might be with the missing person, such as jewelry, accessories, shoes, or boots, or any other distinguishing characteristics;

(5) Date of last known contact or length of time the person has been missing;

(6) The missing person's driver's license and Social Security numbers, if known, or other known numbers related to other forms of identification;

(7) A recent photograph of the missing person;

(8) Information on the missing person's electronic communication devices, such as cell phone numbers, social networking login information, and email addresses;

(9) Reasons why the complainant believes that the person is missing;

(10) Name and location of the missing person's school or employer;

(11) Name and location of the missing person's dentist or primary care physician;

(12) Description of the possible means of transportation of the missing person, including make, model, color, license, and identification number of a vehicle;

(13) Identifying information about a known or possible abductor or person last seen with the missing person, including name; physical description; date of birth; identifying marks; description of the possible means of transportation, including the make, model, color, license, and identification number of a vehicle, and any known associates;

(14) Name of the complainant and his or her relationship to the missing person; and

(15) Any additional information considered relevant by either the complainant or the law-enforcement agency.

(b) High-risk determination and reports --

(1) Upon initial receipt of a missing person report, the lead law-enforcement agency shall immediately assess whether there is a basis to determine that the person missing is a high-risk missing person. If a law-enforcement agency has previously determined that a missing person is not a high-risk missing person, but obtains new information, it shall immediately determine whether the information provided to the law-enforcement agency indicates that the person missing is a high-risk missing person. Risk assessments shall be performed no later than eight hours after the initial missing person report or when new information is provided to the law-enforcement agency. The circumstances that indicate that an individual is a high-risk missing person include any of the following, but are not limited to:

(A) A person missing as a result of a stranger abduction;

(B) A person missing under suspicious circumstances;

(C) A person missing under unknown circumstances;

(D) A person missing under known dangerous circumstances;

(E) A person missing more than 30 days;

(F) A person already designated as high-risk by another law-enforcement agency;

(G) There is evidence that the person does not have a pattern of running away or disappearing, may have been abducted by a noncustodial parent, is mentally impaired, is a person under the age of 21, or has been the subject of past threats or acts of violence; or

(H) Factors that may, in the judgment of the law-enforcement official, determine that the missing person may be at high-risk.

(2) If, upon assessment, the lead law-enforcement agency determines that the missing person is at high-risk, the agency shall:

(A) Immediately notify the West Virginia State Police with information most likely to aid in the location and safe return of the missing person and shall provide all other information obtained relating to the missing person case within 24 hours. The West Virginia State Police shall immediately notify all law-enforcement agencies within the state and surrounding region with information that will aid in the prompt location and safe return of the missing person. Local law-enforcement agencies who receive the notification shall notify officers to be on the lookout for the missing person or a suspected abductor; and

(B) Immediately, and no more than two hours after the determination that the missing person is high-risk, enter all collected information relating to the missing person case into local, state, and federal databases, as specified in subdivision (4) of this subsection. If the lead law-enforcement agency does not have the capability to enter the data directly into state and federal databases, the West Virginia State Police shall enter all collected information relating to the missing person case into the databases. The information shall be provided in accordance with applicable guidelines relating to the databases. Supplemental information in missing person cases shall be entered as soon as practicable.

(3) If, upon assessment, the lead law-enforcement agency determines that the missing person is not at high-risk, the agency shall, within 24 hours, enter all collected information relating to the missing person case into local, state, and federal databases, as specified in subdivision (4) of this subsection. If the lead law-enforcement agency does not have the capability to enter the data directly into state and federal databases, the West Virginia State Police shall enter all collected information relating to the missing person case into the databases. The information shall be provided in accordance with applicable guidelines relating to the databases. Supplemental information in missing person cases shall be entered as soon as practicable.

(4) Filing and removal of reports –

(A) A report of the complaint of a missing person shall be entered into the data systems of the West Virginia State Police, the National Crime Information Center, and the National Missing and Unidentified Persons System. Any information obtained from the data systems shall be disseminated to the lead law-enforcement agency and to other law-enforcement agencies who may come in contact with or be involved in the investigation or location of a missing person;

(B) All DNA profiles shall be uploaded into the West Virginia State Police and NamUs databases after completion of the DNA analysis and other procedures required for database entry;

(C) Information collected under this article that is relevant to the Federal Bureau of Investigation's Violent Criminal Apprehension Program shall be entered as provided under this section as soon as possible;

(D) Upon the location of a missing person, or determination that the person is no longer missing, the lead law-enforcement agency shall immediately, and no later than 24 hours after the determination or location, remove or request the removal of all records of the missing person from all respective data systems.

(E) The chief officer of each law-enforcement agency shall ensure that persons entering data relating to fingerprints, medical, or dental records in state or federal databases are specifically trained to understand and correctly enter the information sought by these databases. Chief Officers are strongly encouraged to either use persons with specific expertise in fingerprints, medical, or dental records for this purpose or to consult with West Virginia’s Office of the Chief Medical Examiner to ensure accuracy and completeness of information entered into state and federal databases.

(F) In cases of a missing person under the age of 21, the responding local law- enforcement agency shall contact the National Center for Missing and Exploited Children and request the case be entered into their database and the photograph and information of that missing person be displayed on their website.

(c) Investigations must occur --

(1) Law-enforcement agencies may not prevent an immediate active investigation on the basis of an agency rule which specifies an automatic time limitation for a missing person investigation.

(2) Law-enforcement agencies may not refuse to accept a missing person report for any reason, including that the report does not meet all the requirements contained in this article.

(3) Law-enforcement agencies shall accept missing person reports in person. Law-enforcement agencies are encouraged to accept reports by phone or by electronic or other media to the extent that such reporting is consistent with law-enforcement policies or practices.

(4) Law-enforcement agencies are not required to obtain written authorization before publicly releasing any photograph that would aid in the investigation or identification of the missing person.

(d) Lead law-enforcement agencies shall notify the person making the report, a family member, or other person in a position to assist in efforts to locate the missing person: 

(1) If they are seeking additional information and materials that will aid in locating the missing person, such as credit or debit cards the missing person has access to, other banking information, and records of phone use;

(2) That any DNA samples provided for the missing person case are provided on a voluntary basis and will be used solely to help locate or identify the missing person and will not be used for any other purpose; and

(3) Regarding general information about the handling of the missing person case or about intended efforts in the case, except when the disclosure would adversely affect the ability to locate or protect the missing person or to apprehend or prosecute any person criminally involved in the disappearance. Law-enforcement agencies may provide information materials through publications or other means regarding available resources and how they are used, based upon the age of the missing person.

(e) Lead law-enforcement agencies shall make use of all available tools, resources, and technologies available as applicable to resolve a missing person case. This includes assistance from: (1) Other law-enforcement agencies, whether at a local, state, or federal level; (2) nonprofit search and rescue organizations, which may provide at no charge trained animal searches, use of specialized equipment, and man trackers; (3) services provided by qualified organizations; (4) cell phone triangularization and tracking; (5) the subpoena of cell phone, land line, Internet, email, and social networking website records; and (6) technology experts to examine any available information gleaned from a computer belonging to or used by the missing person.

(f) If a person remains missing after 30 days, and the additional information and materials specified in this section have not been received, the law-enforcement agency shall attempt to obtain:

(1) DNA samples from family members and the missing person along with any needed documentation, including any consent forms, required for the entry of the information into state or national DNA databases. All DNA samples obtained in missing persons cases shall be immediately forwarded to an appropriate crime laboratory for analysis. The laboratory shall establish procedures for determining how to prioritize analysis of the samples relating to missing persons cases;

(2) An authorization to release dental or skeletal x-rays of the missing person, and any other medical and dental records of the person reported missing, to the lead law-enforcement agency and to the patrol. If no family or next of kin exists or can be located, the law-enforcement agency may execute a written declaration, stating that an active investigation seeking the location of the missing person is being conducted and that the records are necessary for the exclusive purpose of furthering the investigation. The written declaration, signed by a law-enforcement officer, is sufficient authority for a health care practitioner to release the missing person's x-rays, dental records, dental x-rays, and records of any surgical implants to the local law-enforcement agency, and may not be the basis for disciplinary action. Upon receipt of a properly executed release, request or declaration, records shall be submitted within 10 days to the requesting agency;

(3) Additional photographs of the missing person that may aid the investigation or identification; and

(4) Fingerprints of the missing person;

(g) Nothing in this section precludes a law-enforcement agency from attempting to obtain the materials identified this subsection (f) of this section or elsewhere in this section before the expiration of the 30-day period.

(h) Any person or persons who maliciously and knowingly files a false missing person report to a law-enforcement officer is subject to prosecution under §61-5-17(c) of this code.

§15-3C-4.  Reporting and handling of an unidentified person and human remains.

(a) The Office of the West Virginia Medical Examiner shall provide information to local law-enforcement agencies about best practices for handling death scene investigations.

(b) The Office of the Chief Medical Examiner shall identify any publications or training opportunities that may be available to local law-enforcement agencies or law-enforcement officers concerning the handling of death scene investigations.

(c) After performing any death scene investigation considered appropriate under the circumstances, the official with custody of the human remains shall ensure that the human remains are delivered to the county’s coroner or medical examiner.

(d) Any person with custody of human remains that are not identified within 24 hours of discovery shall promptly notify the Office of the Chief Medical Examiner of the location of those remains.

(e) If the person with custody of remains cannot determine whether the remains found are human or not, it shall notify the Office of the Chief Medical Examiner of the existence of possible human remains.

§15-3C-5.  Unidentified person and human remains identification.

(a) If the official with custody of the human remains is not a medical examiner, the official shall promptly transfer the unidentified remains to the nearest medical examiner agency within the state which is qualified to examine human remains for the purpose of identification.

(b) Notwithstanding any other action considered appropriate, the medical examiner shall make reasonable attempts to promptly identify human remains. These actions may include, but are not limited to, obtaining:

(1) Photographs of the human remains, prior to an autopsy;

(2) Dental or skeletal X-rays;

(3) Photographs of items found with the human remains;

(4) Fingerprints from the remains;

(5) Samples of tissue suitable for DNA typing;

(6) Samples of whole bone or hair, or both, suitable for DNA typing; and

(7) Any other information that may support identification efforts.

(c) A medical examiner or any other person may not dispose of, or engage in actions that will materially affect the unidentified human remains before the medical examiner obtains:

(1) Samples suitable for DNA identification archiving;

(2) Photographs of the unidentified person or human remains; and

(3) All other appropriate steps for identification have been exhausted.

(d) Cremation of unidentified human remains is prohibited.

(e) The medical examiner shall make reasonable efforts to obtain prompt DNA analysis of biological samples, if the human remains have not been identified by other means, within 30 days.

(f) The medical examiner shall seek support from appropriate state and federal agencies for human remains identification efforts. The support may include, but is not limited to, available mitochondrial or nuclear DNA testing, federal grants for DNA testing, or federal grants for crime laboratory or medical examiner office improvement.

(g) The medical examiner shall promptly enter information in federal and state databases that can aid in the identification of missing persons. Information shall be entered into federal databases as follows:

(1) Information for the NCIC and NamUs databases, including dental information if possible within 24 hours;

(2) DNA profiles and information shall be entered into CODIS within five business days after the completion of the DNA analysis and procedures necessary for the entry of the DNA profile;

(3) Information sought by the Violent Criminal Apprehension Program database as soon as practicable; and

(4) Fingerprints shall be entered into the appropriate state and national databases as soon as possible.

(h) If medical examiner office personnel do not input the data directly into the federal databases, the West Virginia State Police shall consult with the medical examiner’s office to ensure appropriate training of the West Virginia State Police data entry personnel and the establishment of a quality assurance protocol for ensuring the ongoing quality of data entered in the federal and state databases;

(i) Nothing in this article shall be interpreted to preclude any medical examiner office, the West Virginia State Police or local law-enforcement agency from pursuing other efforts to identify unidentified human remains including efforts to publicize information, descriptions or photographs that may aid in the identification of the unidentified remains, allow family members to identify missing persons, and seek to protect the dignity of missing persons.

(j) Agencies handling the remains of a missing person who is now deceased shall notify the law-enforcement agency handling the missing person case. Documented efforts must be made to locate family members of the deceased person to inform them of the death and location of the remains of their family member.

(k) When a person previously reported missing has been identified, the medical examiner, regional forensic center, or other identifying agency, shall promptly notify the lead law-enforcement agency or, if the lead agency is unknown, the West Virginia State Police that the person has been identified.

(l) Unless evidence contradicts otherwise, the date of death for a missing person is the date of disappearance.

(m) Nothing in this section prohibits law-enforcement agencies or regional forensic centers from maintaining case files related to missing citizens or unidentified bodies.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.

§61-5-17.  Obstructing officer; fleeing from officer; making false statements to officer; interfering with emergency communications; penalties; definitions.

(a) A person who by threats, menaces, acts or otherwise forcibly or illegally hinders or obstructs or attempts to hinder or obstruct a law-enforcement officer, probation officer or parole officer acting in his or her official capacity is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.

(b) A person who intentionally disarms or attempts to disarm a law-enforcement officer, correctional officer, probation officer or parole officer, acting in his or her official capacity, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than five years.

(c) A person who, with intent to impede or obstruct a law-enforcement officer in the conduct of an investigation of a felony offense, knowingly and willfully makes a materially false statement, or files a false missing persons report is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for five days, or both fined and confined.  The provisions of this section do not apply to statements made by a spouse, parent, stepparent, grandparent, sibling, half sibling, child, stepchild or grandchild, whether related by blood or marriage, of the person under investigation.  Statements made by the person under investigation may not be used as the basis for prosecution under this subsection.  For purposes of this subsection, “law-enforcement officer” does not include a watchman, a member of the West Virginia State Police or college security personnel who is not a certified law-enforcement officer.

(d) A person who intentionally flees or attempts to flee by any means other than the use of a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity who is attempting to make a lawful arrest of the person, and who knows or reasonably believes that the officer is attempting to arrest him or her, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail not more than one year, or both fined and confined.

(e) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000 and shall be confined in jail not more than one year.

(f) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop, and who operates the vehicle in a manner showing a reckless indifference to the safety of others, is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $2,000 and shall be imprisoned in a state correctional facility not less than one nor more than five years.

(g) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop, and who causes damage to the real or personal property of a person during or resulting from his or her flight, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000 and shall be confined in jail for not less than six months nor more than one year.

(h) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop, and who causes bodily injury to a person during or resulting from his or her flight, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than three nor more than 10 years.

(i) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop, and who causes death to a person during or resulting from his or her flight, 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 15 years.  A person imprisoned pursuant to this subsection is not eligible for parole prior to having served a minimum of three years of his or her sentence or the minimum period required by §62-12-13 of this code, whichever is greater.

(j) A person who intentionally flees or attempts to flee in a vehicle from a law-enforcement officer, probation officer or parole officer acting in his or her official capacity after the officer has given a clear visual or audible signal directing the person to stop, and who is under the influence of alcohol, controlled substances or drugs, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than three nor more than 10 years.

(k) For purposes of this section, the term “vehicle” includes any motor vehicle, motorcycle, motorboat, all-terrain vehicle or snowmobile as those terms are defined in §17A-1-1 of this code, whether or not it is being operated on a public highway at the time and whether or not it is licensed by the state.

(l) For purposes of this section, the terms “flee”, “fleeing” and “flight” do not include a person's reasonable attempt to travel to a safe place, allowing the pursuing law-enforcement officer to maintain appropriate surveillance, for the purpose of complying with the officer's direction to stop.

(m) The revisions to subsections (e), (f), (g) and (h) of this section enacted during the regular session of the 2010 regular legislative session shall be known as the Jerry Alan Jones Act.

(n) (1) No person, with the intent to purposefully deprive another person of emergency services, may interfere with or prevent another person from making an emergency communication, which a reasonable person would consider necessary under the circumstances, to law-enforcement, fire, or emergency medical service personnel.

(2) For the purpose of this subsection, the term “interfere with or prevent” includes, but is not limited to, seizing, concealing, obstructing access to or disabling or disconnecting a telephone, telephone line or equipment or other communication device.

(3) For the purpose of this subsection, the term “emergency communication” means communication to transmit warnings or other information pertaining to a crime, fire, accident, power outage, disaster or risk of injury or damage to a person or property.

(4) A person who violates this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period of not less than one day nor more than one year or shall be fined not less than $250 nor more than $2,000, or both fined and confined.

(5) A person who is convicted of a second offense under this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than three months nor more than one year or fined not less than $500 nor more than $3,000, or both fined and confined.

(6) A person who is convicted of a third or subsequent offense under this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than six months nor more than one year or fined not less than $500 nor more than $4,000, or both fined and confined.

(7) In determining the number of prior convictions for purposes of imposing punishment under this subsection, the court shall disregard all such prior convictions occurring more than 10 years prior to the offense in question.

 

NOTE: The purpose of this bill is to improve the process of coordinating law-enforcement agencies in finding missing persons and identifying found remains.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.