ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 649
(Senator Foster, original sponsor)
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[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT to amend of the Code of West Virginia, 1931, as amended, by
adding thereto two new sections, designated §62-1A-10 and §62-
1A-11, all relating to search of motor vehicles by law
enforcement officers with consent; providing for the
development of a standardized form of a written consent to
search a motor vehicle with the permission of the vehicle
operator; requiring written or audio recording of a vehicle
operator's permission or consent to search of motor vehicles
by law-enforcement officers when appropriate; providing
exceptions; addressing the effect of an officer's failure to
document oral or written consent; providing for the
establishment of appropriate, forms, standards and criteria by
the Governor's Committee on Crime, Delinquency and
Corrections; requiring legislative and emergency rules; and
establishing effective date.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections, designated §62-1A-10 and §62-
1A-11, all to read as follows:
ARTICLE 1A. SEARCH AND SEIZURE.
§62-1A-10. Motor vehicle searches.
(a) A law-enforcement officer who stops a motor vehicle for an
alleged violation of a traffic misdemeanor law or ordinance may not
search the vehicle unless he or she:
(1) Has probable cause or another lawful basis for the search;
(2) Obtains the written consent of the operator of the vehicle
on a form that complies with section eleven of this article; or,
alternatively,
(3) Obtains the oral consent of the operator of the vehicle
and ensures that the oral consent is evidenced by an audio
recording that complies with section eleven of this article.
(b) Notwithstanding the provisions of subsection (a) of this
section, should a form meeting the requirement of section eleven of
this article or an audio recording device be unavailable a
handwritten consent executed by the vehicle operator and meeting
the consent requirements of section eleven of this article will
suffice.
(c) Notwithstanding the provisions of subsection (a) or (b)of
this section should a court find that the officer had a reasonable
suspicion of dangerousness to his or her safety which precluded
recordation of the consent the recordation requirements of this section shall be found inapplicable.
(d) Failure to comply with the provisions of this section
shall not, standing alone, constitute proof that any consent to
search was involuntary.
(e) A finding by a court that the operator of a motor vehicle
voluntarily and verbally consented to a search of the motor vehicle
shall make the recordation requirements of this section
inapplicable.
(f) Nothing contained in this section shall be construed to
create a private cause of action.
(g) This section takes effect on January 1, 2011.
§62-1A-11. Rules for certain evidence of consent to vehicle
search.
(a) To facilitate the implementation of section ten of this
article the Governor's Committee on Crime, Delinquency and
Corrections shall promulgate emergency and legislative rules in
accordance with article three, chapter twenty-nine-a of this code
to establish the requirements for:
(1) A form used to obtain the written consent of the operator
of a motor vehicle under section ten of this article; and
(2) An audio recording used as evidence of the oral consent of
the operator of a motor vehicle under section ten of this article.
(b) The form required under subsection (a) of this section
shall contain:
(1) A statement that the operator of the motor vehicle fully
understands that he or she may refuse to give the law-enforcement officer consent to search the motor vehicle;
(2) A statement that the operator of the motor vehicle is
freely and voluntarily giving the law-enforcement officer consent
to search the motor vehicle;
(3) A statement that the operator of the motor vehicle may
withdraw the consent at any time during the search;
(4) The time and date of the stop giving rise to the search;
(5) The make and the registration number of the vehicle to be
searched; and
(6) The name of the law-enforcement officer seeking consent.
(c) The rules adopted under subdivision (2), subsection (a) of
this section must require the audio recording to reflect an
affirmative statement made by the operator that:
(1) The operator of the motor vehicle understands that the
operator may refuse to give the law-enforcement officer consent to
search the motor vehicle;
(2) The operator of the motor vehicle is voluntarily giving
the law-enforcement officer consent to search the motor vehicle;
and
(3) The operator of the motor vehicle was informed that he or
she may withdraw the consent at any time during the search.
(d) The Governor's Committee on Crime, Delinquency and
Corrections shall promulgate the emergency and legislative rules
required by this section no later than December 31, 2010.