H. B. 4605
(By Delegates Amores, Fleischauer, Mahan,
Brown and Webster)
(Introduced February 25, 2004; referred to the
Committee on the Judiciary.)
A BILL
to amend and reenact §48-5-509 and §48-5-608 of the code
of West Virginia, 1931, as amended;
to amend and reenact
§48-27-401,
§48-27-902, §48-27-903
and §48-27-1001 of said
code;
to amend and reenact §61-2-9 and §61-2-28 of said
code;
and to amend and reenact §61-7-4 and §61-7-7 of said
code;
all relating to domestic violence; clarifying the
interaction between temporary and final domestic violence
protective orders and the provisions of protective measures
reflected in temporary or final divorce orders entered in
divorce proceedings or other types of domestic proceedings;
making the violation of emergency or final protective orders
issued by injunctive relief or protective order in a divorce
proceeding a misdemeanor; clarifying provisions related to
the arrest and criminal enforcement of violations of
protective orders to include the same; clarifying the
penalties which may be imposed for the initial and repeated
violation of such protective orders; authorizing the
governor's committee on crime, delinquency and correction to
develop and promulgate rules regarding the procedures for the dispatch of matters involving domestic violence; and
relating to prohibitions against the issuance of licenses
and permits to carry concealed weapons and the possession of
firearms as they pertain to persons who have been convicted
of domestic violence offenses and/or are subject to domestic
violence protection orders.
Be it enacted by the Legislature of West Virginia:
That §48-5-509 and §48-5-608 of the code of West Virginia,
1931, as amended, be amended and reenacted; that §48-27-407, §48-
27-902, §48-27-903 and §48-27-1001 of said code be amended and
reenacted; that §61-2-9 and §61-2-28 of said code be amended and
reenacted; and that §61-7-4 and §61-7-7 of said code be amended
and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS
ARTICLE 5. DIVORCE
PART 5. TEMPORARY RELIEF DURING PENDENCY OF ACTION FOR DIVORCE
§48-5-509. Enjoining abuse, emergency protective order.
(a) The court may enjoin the offending party from molesting
or interfering with the other, or otherwise imposing any
restraint on the personal liberty of the other, or interfering
with the custodial or visitation rights of the other. This order
may enjoin the offending party from:
(1) Entering the school, business or place of employment of
the other for the purpose of molesting or harassing the other;
(2) Contacting the other, in person or by telephone, for the
purpose of harassment or threats; or
(3) Harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from
abuse may grant any other relief
that may be appropriate for
inclusion under the provisions of article twenty-seven of this
chapter authorized to be awarded under article twenty-seven of
this chapter, if the party seeking the relief has established the
grounds for that relief as required by article twenty-seven.
(c) The court, in its discretion, may enter a protective
order, as provided in article twenty-seven of this chapter, as
part of the temporary relief granted in a divorce action
, either
as a part of a written order for temporary relief or as part of a
separate written order. Notwithstanding the provisions of five
hundred five, article twenty-seven of this chapter, a protective
order entered pursuant to this subsection shall remain in effect
until a final order is entered in the divorce, unless otherwise
ordered by the judge.
PART 6. JUDGMENT ORDERING DIVORCE.
§
48-5-608. Injunctive relief or protective orders.
(a) When allegations of abuse have been proved, the court
shall enjoin the offending party from molesting or interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other or interfering with the custodial
or visitation rights of the other. The order may permanently
enjoin the offending party from entering the school, business or
place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
(b) Any order entered by the court to protect a party from
abuse may grant
relief pursuant to the provisions of article
twenty-seven of this chapter any other relief authorized to be
awarded under article twenty-seven of this chapter, if the party
seeking the relief has established the grounds for that relief as
required by article twenty-seven.
(c) The court, in its discretion, may enter a protective
order, as provided in article twenty-seven of this chapter, as
part of the temporary relief in a divorce action
, either as a
part of a written order for temporary relief or in a separate
written order.
Notwithstanding the provisions of section five
hundred five, article twenty-seven of this chapter, the
protective order entered pursuant to this subsection shall remain
in effect for the period of time ordered by the court.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
PART 4. COORDINATION WITH PENDING COURT ACTIONS
§48-27-401. Interaction between domestic proceedings
(a) During the pendency of a divorce action, a person may
file for and be granted relief provided by this article, until an
order is entered in the divorce action pursuant to part 5-501,
et
seq.
(b) If a person who has been granted relief under this
article should subsequently become a party to an action for
divorce, separate maintenance or annulment, such person shall
remain entitled to the relief provided under this article
including the right to file for and obtain any further relief, so
long as no temporary order has been entered in the action for divorce, annulment and separate maintenance, pursuant to part 5-
501,
et seq.
(c) Except as provided in section 5-509 of this chapter and
section 27-402 of this article for a petition and a temporary
emergency protective order, no person who is a party to a pending
action for divorce, separate maintenance or annulment in which an
order has been entered pursuant to part 5-501,
et seq. of this
chapter, shall be entitled to file for or obtain relief against
another party to that action under this article until after the
entry of a final order which grants or dismisses the action for
divorce, annulment or separate maintenance.
(d) Notwithstanding the provisions set forth in section 27-
505,
any order issued pursuant to this article where a subsequent
when an action
is filed seeking a divorce, an annulment or
separate maintenance, the allocation of custodial responsibility
or a habeas corpus action to establish custody, the establishment
of paternity, the establishment or enforcement of child support,
or other relief under the provisions of this chapter
is filed or
is reopened by petition, motion or otherwise, then any order
issued pursuant to this article which is in effect on the day the
action is filed or reopened shall remain in full force and effect
by operation of this statute until a temporary or final order is
entered pursuant to part 5-501,
et seq.
or part 6-601 et seq. of
this chapter,
until an order is entered modifying such order
issued pursuant to this article or
until a final order is entered
granting or dismissing the action.
PART 9. SANCTIONS
§48-27-902. Violations of protective orders; criminal
complaints.
(a) When a respondent abuses the petitioner or minor
children, or both, or is physically present at any location in
knowing and willful violation of the terms of an emergency or
final protective order under the provisions of this article or
section sections 5-509
or 5-608 of this chapter granting the
relief pursuant to the provisions of this article, any person
authorized to file a petition pursuant to the provisions of
section 27-305 or the legal guardian or guardian ad litem may
file a petition for civil contempt as set forth in section 27-
901.
(b) When any such violation of a valid order has occurred,
the petitioner may file a criminal complaint. If the court finds
probable cause upon the complaint, the court shall issue a
warrant for arrest of the person charged.
(c)Criminal complaints alleging violation of domestic
violence protective orders may be tried before a magistrate or
circuit court judge.
§48-27-903. Misdemeanor offenses for violation of protective
order, repeat offenses, penalties.
(a) A respondent who abuses the petitioner or minor children
or who is physically present at any location in knowing and
willful violation of the terms of an emergency or final
protective order issued under the provisions of this article or
section sections 5-509
or 5-608 of this chapter granting the
relief pursuant to the provisions of this article, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
the county or regional 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.
(b) When a respondent previously convicted of the offense
described in subsection (a) of this section abuses the petitioner
or minor children or is physically present at any location in
knowing and willful violation of the terms of a temporary or
final protective order issued under the provisions of this
article, the respondent is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for not less than three months nor more than one year, which
jail term shall include actual confinement of not less than
twenty-four hours, and fined not less than five hundred dollars
nor more than three thousand dollars, or both.
PART 10. ARRESTS
§
48-27-1001. Arrest for violations of protective orders
(a) When a law-enforcement officer observes any respondent
abuse
of the petitioner or minor children or the respondent's
physical presence at any location in knowing and willful
violation of the terms of an emergency or final protective order
issued under the provisions of this article or
section sections
5-509
or 5-608 of this chapter granting the relief pursuant to
the provisions of this article, he or she shall immediately
arrest the respondent.
(b) When a family or household member is alleged to have
committed a violation of the provisions of section 27-903, a law-enforcement officer may arrest the perpetrator for said offense
where:
(1) The law-enforcement officer has observed credible
corroborative evidence, as defined in subsection 27-1002(b), 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 the facts
constituting a violation of section 27-903; or
(3) The law-enforcement officer has observed credible
evidence that the accused committed the offense.
(c) Any person who observes a violation of a protective
order as described in this section, or the victim of such abuse
or unlawful presence, 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.
(d) Where there is an arrest, the officer shall take the
arrested person before a circuit court or a magistrate and, upon
a finding of probable cause to believe a violation of an order as
set forth in this section has occurred, the court or magistrate
shall set a time and place for a hearing in accordance with the
West Virginia rules of criminal procedure.
PART 11. MISCELLANEOUS PROVISIONS
§48-27-1102. Authorization for the promulgation of legislative
rules.
The governor's committee on crime, delinquency and
correction shall develop and promulgate rules for state, county and municipal law-enforcement officers and law-enforcement
agencies with regard to domestic violence,
and shall develop
rules regarding procedures for the dispatch of matters involving
domestic violence for communications and emergency operations
centers that dispatch law enforcement officers: Provided, That
such rules and procedures must be consistent with the priority
criteria prescribed by generally applicable department
procedures. The notice of the public hearing on the rules shall
be published before the first day of July, one thousand nine
hundred ninety-one. Prior to the publication of
the proposed
rules, the governor's committee on crime, delinquency and
correction shall convene a meeting or meetings of an advisory
committee to assist in the development of the rules. The advisory
committee shall be composed of persons invited by the committee
to represent state, county and local law-enforcement agencies and
officers, to represent magistrates and court officials, to
represent victims of domestic violence, to represent shelters
receiving funding pursuant to article 26-101, et seq., of this
chapter
, to represent communications and emergency operations
centers that dispatch law enforcement officers and to represent
other persons or organizations who, in the discretion of the
committee, have an interest in the rules. The rules and the
revisions thereof as provided in this section shall be
promulgated as legislative rules in accordance with chapter
twenty-nine-a of this code.
Following the promulgation of said
rules, the The committee shall meet at least annually to review
the rules and to propose revisions as a result of changes in law
or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery;
penalties.
(a) If any person maliciously shoot, stab, cut or wound any
person, or by any means cause him bodily injury with intent to
maim, disfigure, disable or kill, he shall, except where it is
otherwise provided, be guilty of a felony, and, upon conviction,
shall be punished by confinement in the penitentiary not less
than two nor more than ten years. If such act be done
unlawfully, but not maliciously, with the intent aforesaid, the
offender shall be guilty of a felony, and, upon conviction,
shall, in the discretion of the court, either be confined in the
penitentiary not less than one nor more than five years, or be
confined in jail not exceeding twelve months and fined not
exceeding five hundred dollars.
(b)
Assault. -- If any person unlawfully attempts to commit
a violent injury to the person of another or unlawfully commits
an act which places another in reasonable apprehension of
immediately receiving a violent injury, he shall be guilty of a
misdemeanor, and, upon conviction, shall be confined in jail for
not more than six months, or fined not more than one hundred
dollars, or both such fine and imprisonment.
(c)
Battery. -- If any person unlawfully and intentionally
makes physical contact of an insulting or provoking nature with
the person of another or unlawfully and intentionally causes
physical harm to another person, he shall be guilty of a
misdemeanor, and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred
dollars, or both such fine and imprisonment.
(d)
Treatment of certain convictions as an act of domestic
violence -- For the purpose of determining appropriate penalties
for any second or subsequent criminal acts of domestic assault or
domestic battery by the same person under section twenty-eight of
this article, any conviction under this section shall be
considered as a prior criminal conviction for domestic violence
if the victim of the assault or battery was a member the
offender's family or household at the time of the offense.
§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and
intentionally makes physical contact of an insulting or provoking
nature with his or her family or household member or unlawfully
and intentionally causes physical harm to his or her family or
household member, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for not
more than twelve months, or fined not more than five hundred
dollars, or both.
(b) Domestic assault. -- Any person who unlawfully attempts
to commit a violent injury against his or her family or household
member or unlawfully commits an act which places his or her
family or household member in reasonable apprehension of
immediately receiving a violent injury, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for not more than six months, or fined
not more than one hundred dollars, or both.
(c) Consideration of prior convictions for acts of assault or battery against family members or household members. -- For
the purpose of determining appropriate penalties for second or
subsequent convictions for criminal acts of domestic violence
under subsection (d) or (e) of this section, any prior conviction
of domestic battery or domestic assault under subsection (a) or
(b) of this section or any prior convictions for assault or
battery under subsections (a), (b) or (c) of section nine of this
article shall be counted as a prior criminal conviction for
domestic violence, if the victim of the prior assault or battery
was a member the offender's family or household at the time of
the prior offense. Further, if a person has been granted a
period of pretrial diversion pursuant to section twenty-two,
article eleven of this chapter for any violation of subsection
(a) or (b) of this section or for any violation of subsection (b)
or (c) of section nine of this article in which the victim was a
member of the offender's family or household at the time of the
offense, and that same person is convicted of a subsequent act of
domestic violence under either subsection (a) or (b) of this
section or is convicted of an assault or battery under subsection
(b) or (c) of section nine of this article in which the victim
was a member of the offender's family or household at the time of
the offense, the offense which was the subject of the pretrial
diversion shall be counted as a prior conviction for domestic
violence for the purpose of determining an appropriate penalty
under this section for a second or subsequent offense.
(c) (d) Second offense. -- Any person who has previously been
convicted of a violation of subsection (a) or (b) of this
section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her
family or household member or who has previously been granted a
period of pretrial diversion pursuant to section twenty-two,
article eleven of this chapter for a violation of subsection (a)
or (b) of this section or subsection (b) or (c), section nine of
this article where the victim was his or her family or household
member shall be guilty of a misdemeanor. A person convicted of a
violation of subsection (a) of this section after having been
previously convicted of a violation of subsection (a) or (b) of
this section, after having been convicted of a violation of
subsection (b) or (c), section nine of this article where the
victim was his or her family or household member or who has
previously been granted a period of pretrial diversion pursuant
to section twenty-two, article eleven of this chapter for a
violation of subsection (a) or (b) of this section or subsection
(b) or (c), section nine of this article where the victim was his
or her family or household member shall be confined in a county
or regional jail for not less than sixty days nor more than one
year, or fined not more than one thousand dollars, or both. A
person convicted of a violation of subsection (b) of this section
after having been previously convicted of a violation of
subsection (a) or (b) of this section, after having been
convicted of a violation of subsection (b) or (c), section nine
of this article where the victim was his or her family or
household member or having previously been granted a period of
pretrial diversion pursuant to section twenty-two, article eleven
of this chapter for a violation of subsection (a) or (b) of this
section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member Any
person who is convicted of a second or subsequent violation of
the provisions of subsection (a) or (b) of this section, any
person who is convicted of a second or subsequent violation of
section nine of this article in which the victim is a family or
household member, or any person who is convicted of a subsequent
violation of the provisions of subsection (a) or (b) of this
section or subsection (b) or (c) of section nine of this article
after having been granted a period of pretrial diversion pursuant
to section twenty-two, article eleven of this chapter for either
a violation of subsection (a) or (b) of this section or a
violation of the provisions of section nine of this article in
which the victim is a family or household member, or any person
who is convicted of any combination of any two convictions or
diversions for these offenses, is guilty of a misdemeanor, and
shall be confined in a county or regional jail for not less than
thirty days nor more than six months, or fined not more than five
hundred dollars, or both.
(d) (e) Third offense. -- Any person who has been convicted
of a third or subsequent violation of the provisions of
subsection (a) or (b) of this section, a third or subsequent
violation of the provisions of section nine of this article where
the victim is a family or household member or who has previously
been granted a period of pretrial diversion pursuant to section
twenty-two, article eleven of this chapter for a violation of
subsection (a) or (b) of this section or a violation of the
provisions of section nine of this article where in which the
victim is a family or household member, or any combination of convictions or diversions for these offenses, is guilty of a
felony if the offense occurs within ten years of a prior
conviction of any of these offenses and, upon conviction thereof,
shall be confined in a state correctional facility not less than
one nor more than five years or fined not more than two thousand
five hundred dollars, or both.
(e) As used in this section, "family or household member"
means "family or household member" as defined in 48-27-203 48-27-
204 of this code.
(f) A person charged with a violation of this section may
not also be charged with a violation of subsection (b) or (c),
section nine of this article for the same act.
(g) No law-enforcement officer may be subject to any civil
or criminal action for false arrest or unlawful detention for
effecting an arrest pursuant to this section or pursuant to
48-27-1002 of this code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
(a) Except as provided in subsection (h) of this section,
any person desiring to obtain a state license to carry a
concealed deadly weapon shall apply to the sheriff of his or her
county for such license, and shall pay to the sheriff, at the
time of application, a fee of seventy-five dollars, of which
fifteen dollars of that amount shall be deposited in the
courthouse facilities improvement fund created by section six,
article twenty-six, chapter twenty-nine of this code. Concealed
weapons permits may only be issued for pistols or revolvers.
Each applicant shall file with the sheriff, a complete application, as prepared by the superintendent of the West
Virginia state police, in writing, duly verified, which sets
forth only the following licensing requirements:
(1) The applicant's full name, date of birth, social
security number and a description of the applicant's physical
features;
(2) That, on the date the application is made, the applicant
is a bona fide resident of this state and of the county in which
the application is made and has a valid driver's license or other
state-issued photo identification showing such residence;
(3) That the applicant is twenty-one years of age or older:
Provided, That any individual who is less than twenty-one years
of age and possesses a properly issued concealed weapons license
as of the effective date of this article shall be licensed to
maintain his or her concealed weapons license notwithstanding the
provisions of this section requiring new applicants to be at
least twenty-one years of age: Provided, however, That upon a
showing of any applicant who is eighteen years of age or older
that he or she is required to carry a concealed weapon as a
condition for employment, and presents satisfactory proof to the
sheriff thereof, then he or she shall be issued a license upon
meeting all other conditions of this section. Upon
discontinuance of employment that requires the concealed weapons
license, if the individual issued the license is not yet twenty-
one years of age, then the individual issued the license is no
longer eligible and must return his or her license to the issuing
sheriff;
(4) That the applicant is not addicted to alcohol, a controlled substance or a drug, and is not an unlawful user
thereof;
(5) That the applicant has not been convicted of a felony or
of an act of violence involving the misuse of a deadly weapon;
(6) That the applicant has no criminal charges pending and
is not currently serving a sentence of confinement, parole,
probation or other court-ordered supervision imposed by a court
of any jurisdiction
because of a charge prior act of domestic
violence
, as the term "domestic violence" is defined in section
two hundred two, article twenty-seven, chapter forty-eight, as
provided for in section twenty-eight, article two of this chapter
a an emergency, temporary or final
protective order entered by a court of any jurisdiction
restraining order as a result of a domestic violence act as
defined in that section, or because of in response to a verified
petition of domestic violence as provided for in article two-a
twenty-seven, chapter forty-eight of this code or is subject to a
protective order as provided for in that article;
(7) That the applicant is physically and mentally competent
to carry such weapon;
(8) That the applicant has not been adjudicated to be
mentally incompetent;
(9) That the applicant has qualified under the minimum
requirements set forth in subsection (d) of this section for
handling and firing such weapon: Provided, That this requirement
shall be waived in the case of a renewal applicant who has
previously qualified;
(10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation
relative to the information contained in the application.
(b) The sheriff shall conduct an investigation which shall
verify that the information required in subdivisions (1), (2),
(3), (5), (6), (8) and (9), subsection (a) of this section are
true and correct.
(c) Sixty dollars of the application fee and any fees for
replacement of lost or stolen licenses received by the sheriff
shall be deposited by the sheriff into a concealed weapons
license administration fund. Such fund shall be administered by
the sheriff and shall take the form of an interest bearing
account with any interest earned to be compounded to the fund.
Any funds deposited in this concealed weapon license
administration fund are to be expended by the sheriff to pay for
the costs associated with issuing concealed weapons licenses.
Any surplus in the fund on hand at the end of each fiscal year
may be expended for other law-enforcement purposes or operating
needs of the sheriff's office, as the sheriff may consider
appropriate.
(d) All persons applying for a license must complete a
training course in handling and firing a handgun. The successful
completion of any of the following courses fulfills this training
requirement:
(1) Any official national rifle association handgun safety
or training course;
(2) Any handgun safety or training course or class available
to the general public offered by an official law-enforcement
organization, community college, junior college, college or private or public institution or organization or handgun training
school utilizing instructors duly certified by such institution;
(3) Any handgun training or safety course or class conducted
by a handgun instructor certified as such by the state or by the
national rifle association;
(4) Any handgun training or safety course or class conducted
by any branch of the United States military, reserve or national
guard.
A photocopy of a certificate of completion of any of the
courses or classes or an affidavit from the instructor, school,
club, organization or group that conducted or taught said course
or class attesting to the successful completion of the course or
class by the applicant or a copy of any document which shows
successful completion of the course or class shall constitute
evidence of qualification under this section.
(e) All concealed weapons license applications must be
notarized by a notary public duly licensed under article four,
chapter twenty-nine of this code. Falsification of any portion
of the application constitutes false swearing and is punishable
under the provisions of section two, article five, chapter sixty-
one of this code.
(f) If the information in the application is found to be
true and correct, the sheriff shall issue a license. The sheriff
shall issue or deny the license within forty-five days after the
application is filed if all required background checks authorized
by this section are completed.
(g) Before any approved license shall be issued or become
effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the
superintendent of the West Virginia state police within thirty
days of receipt. Any such license shall be valid for five years
throughout the state, unless sooner revoked.
(h) All persons holding a current and valid concealed
weapons license as of the sixteenth day of December, one thousand
nine hundred ninety-five, shall continue to hold a valid
concealed weapons license until his or her license expires or is
revoked as provided for in this article: Provided, That all
reapplication fees shall be waived for applications received by
the first day of January, one thousand nine hundred ninety-seven,
for any person holding a current and valid concealed weapons
license as of the sixteenth day of December, one thousand nine
hundred ninety-five, which contains use restrictions placed upon
the license as a condition of issuance by the issuing circuit
court. Any licenses reissued pursuant to this subsection will be
issued for the time period of the original license.
(i) Each license shall contain the full name, social
security number and address of the licensee and a space upon
which the signature of the licensee shall be signed with pen and
ink. The issuing sheriff shall sign and attach his or her seal
to all license cards. The sheriff shall provide to each new
licensee a duplicate license card, in size similar to other state
identification cards and licenses, suitable for carrying in a
wallet, and such license card is deemed a license for the
purposes of this section.
(j) The superintendent of the West Virginia state police
shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other
act required to be done to protect the state and see to the
enforcement of this section.
(k) In the event an application is denied, the specific
reasons for the denial shall be stated by the sheriff denying the
application. Any person denied a license may file, in the
circuit court of the county in which the application was made, a
petition seeking review of the denial. Such petition shall be
filed within thirty days of the denial. The court shall then
determine whether the applicant is entitled to the issuance of a
license under the criteria set forth in this section. The
applicant may be represented by counsel, but in no case shall the
court be required to appoint counsel for an applicant. The final
order of the court shall include the court's findings of fact and
conclusions of law. If the final order upholds the denial, the
applicant may file an appeal in accordance with the rules of
appellate procedure of the supreme court of appeals.
(l) In the event a license is lost or destroyed, the person
to whom the license was issued may obtain a duplicate or
substitute license for a fee of five dollars by filing a
notarized statement with the sheriff indicating that the license
has been lost or destroyed.
(m) The sheriff shall, immediately after the license is
granted as aforesaid, furnish the superintendent of the West
Virginia state police a certified copy of the approved
application. It shall be the duty of the sheriff to furnish to
the superintendent of the West Virginia state police at any time
so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police
shall maintain a registry of all persons who have been issued
concealed weapons licenses.
(n) All licensees must carry with them a state-issued photo
identification card with the concealed weapons license whenever
the licensee is carrying a concealed weapon. Any licensee who
fails to have in his or her possession a state-issued photo
identification card and a current concealed weapons license while
carrying a concealed weapon shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than fifty or
more than two hundred dollars for each offense.
(o) The sheriff shall deny any application or revoke any
existing license upon determination that any of the licensing
application requirements established in this section have been
violated by the licensee.
(p) No person who is engaged in the receipt, review or in
the issuance or revocation of a concealed weapon license shall
incur any civil liability as the result of the lawful performance
of his or her duties under this article.
(q) Notwithstanding the provisions of subsection (a) of this
section, with respect to application by a former law-enforcement
officer honorably retired from agencies governed by article
fourteen, chapter seven of this code; article fourteen, chapter
eight of this code
; article two, chapter fifteen of this code
;
and article seven, chapter twenty of this code, an honorably
retired officer is exempt from payment of fees and costs as
otherwise required by this section, and the application of the
honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in
subdivision (9), subsection (a) of this section, if the officer
meets the remainder of the requirements of this section and has
the approval of the appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms;
classifications; reinstatement of rights to
possess; offenses; penalties.
(a) Except as provided for in this section, no person shall
possess a firearm as such is defined in section two of this
article who:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or addicted to any controlled
substance;
(4) Has been adjudicated as a mental defective or who has
been involuntarily committed to a mental institution;
(5) Being an alien is illegally or unlawfully in the United
States;
(6) Has been discharged from the armed forces under
dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received
actual notice and at which such person had an opportunity to
participate;
(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C)(i) Includes a finding that such person represents a
credible threat to the physical safety of such intimate partner
or child; or
(ii) By its terms explicitly prohibits the use, attempted
use or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or
(8) Has been convicted by a West Virginia court of a
misdemeanor crime of domestic assault or domestic battery under
subsection (a) or (b), section twenty-eight, article two of this
chapter, or has been convicted for the misdemeanor crime of
assault or battery under subsection (b) or (c), section nine,
article two of this chapter, where the victim was a family or
household member at the time of the offense.
(8)(9) Has been convicted in any court of any jurisdiction
of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than
one thousand dollars or confined in the county jail for not less
than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person:
(1) Who has been convicted in this state or any other
jurisdiction of a felony crime of violence against the person of
another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other
jurisdiction of a felony controlled substance offense involving a
schedule I controlled substance other than marijuana, a schedule
II or a schedule III controlled substance as such are defined in
sections two hundred four, two hundred five and two hundred six,
article two, chapter sixty-a of this code and who possesses a
firearm as such is defined in section two of this article shall
be guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for not more than five
years or fined not more than five thousand dollars, or both. The
provisions of subsection (c) of this section shall not apply to
persons convicted of offenses referred to in this subsection or
to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the
provisions of subsection (a) of this section may petition the
circuit court of the county in which he or she resides to regain
the ability to possess a firearm and if the court finds by clear
and convincing evidence that the person is competent and capable
of exercising the responsibility concomitant with the possession
of a firearm, the court may enter an order allowing the person to
possess a firearm if such possession would not violate any
federal law.
NOTE: The purpose of this bill is to amend and clarify
certain provisions of the West Virginia Code as they relate to
domestic violence offenses and related protective orders that are
issued by various courts. As proposed, the bill clarifies the
interaction between emergency, temporary and final domestic
violence protective orders entered various courts and the
provisions of protective measures reflected in temporary, interim
or final divorce orders entered in divorce proceedings; it
clarifies the impact of reopened domestic proceedings or new petitions on pre-existing protective orders; it makes the
violation of emergency or final protective orders issued by
injunctive relief or protective order in a divorce proceeding a
misdemeanor; it amends the provisions related to the arrest and
criminal enforcement of violations of protective orders to
include the same; it clarifies the penalties which may be imposed
for the initial and repeated violation of such protective orders;
it clarifies the impact and consideration of prior criminal acts
of domestic violence against members of the in the sentencing of
repeat offenders; it authorizes the governor's committee on
crime, delinquency and correction to develop and promulgate rules
regarding the procedures for the dispatch of matters involving
domestic violence; and it clarifies and amends the current
prohibitions against the issuance of licenses and permits to
carry concealed weapons and the possession of firearms as they
pertain to persons who have been convicted of domestic violence
offenses and/or are subject to domestic violence protection
orders so that those provisions are more consistent with federal
law.
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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