West Virginia State Police Legal Section
1998 Legislative Update
Laws Passed that Affect Law Enforcement
W. Va. Code §16-3C-1 et seq.: Aids-Related Testing and
Records Confidentiality Act.
This law provides for HIV testing when medical and emergency personnel,
and funeral home directors, experience significant exposure to a patient
believed to have the virus so that their preventative health care can be
managed. A patient's consent is not required for testing. The Department
of Health and Human Resources is required to notify spouses and to contact
sex partners and persons sharing needles when the test results are positive.
The law requires confidentiality.
Effective date: June 12, 1998.
W. Va. Code §49-7-1: Confidentiality of records.
This law involves changes to the release of juvenile records held by
governmental agencies. New provisions allow the release of juvenile records
relating to child abuse and neglect proceedings to federal, state, and
local governments as well as to prosecuting attorneys and law enforcement
agencies. Also, release can be made to the child fatality review team,
child abuse citizen review panels, multi-disciplinary investigative and
treatment teams, grand juries, circuit courts, and family law masters.
Effective date: June 13, 1998.
W. Va. Code §11-10-5t: Disclosure of persons making retail
sales of tobacco products.
This law has been amended to require the Tax Commissioner to give a
list of the names and locations of retailers who sell tobacco products
to the Alcohol Beverage Control Commissioner, the Superintendent of the
State Police, and the Secretary of Health and Human Resources on April
1st and October 1st of each year. The retailers will have to state on their
business registration certificates if they intend to sell tobacco products.
The list may also be filed with the Secretary of State for public inspection
and copying. The Alcoholic Beverage Control Commissioner is authorized
to make inspections of businesses selling tobacco to ensure that they are
complying with the law and to report the results of those inspections to
the federal government.
Effective date: June 13, 1998.
W. Va. Code §17C-13-3(19): Stopping, standing or parking
prohibited in specified places.
Section #19 is new to this article and it prohibits stopping, standing
or parking a vehicle in front of a wheelchair accessible ramp or curb cut-out
that is part of a sidewalk designed for public use when it is marked with
yellow paint.
Effective date: June 11, 1998.
W. Va. Code §7-1-3: County Commissions Generally - Jurisdiction,
powers and duties.
Effective date: June 12, 1998.
W. Va. Code §61-3-53: Unauthorized use of dumpsters.
This new law makes the unauthorized use of a dumpster or solid waste
container and services located on another person's property, or maintained
by another person, a misdemeanor.
Effective date: June 12, 1998.
W. Va. Code §17C-15-19(f): Additional lighting equipment.
This section of the code has been amended to authorize, but does not
require, the lead car in a funeral procession to display a flashing or
illuminated purple light.
Effective date: June 10, 1998.
W. Va. Code §48-2A-(b): Prevention and treatment of domestic
and family violence - definitions.
The definition of family or household member has been amended to include
persons who are dating or who have dated.
Effective date: June 3, 1998.
W. Va. Code §48-2A-3(e): Jurisdiction; venue; effect
of petitioner's leaving residence; priority of petitions filed under this
article; who may file; full faith and credit; process.
This section has been amended to clarify the effect of out-of-state
domestic violence protective orders when presented to West Virginia law
enforcement officers. The amendment provides that out-of-state orders shall
be enforced as if they are an order of this state whether or not the relief
stated is available in this state. Further, a protective order from another
jurisdiction is presumed to be valid if the order appears authentic on
its face. Also, if the validity of the order is questioned, the court or
law enforcement officer is required to determine the existence, validity,
and terms of the order in the issuing jurisdiction. Finally, the out-of-state
order may be enforced even if the order is not entered in the State Police
Domestic Violence Registry.
Effective date: June 3, 1998.
W. Va. Code §48-2A-4(a)(3): Commencement of proceedings;
forms; counterclaim; accompanying persons.
This section has been amended to allow persons to petition for a protective
order who have either reported or were a witness to domestic or family
violence and who, as a result, have been abused, threatened, harassed or
have been the subject of other actions intended to intimidate.
Effective date: June 3, 1998.
W. Va. Code §48-2A-6(b), (c) & (d): Protective orders.
This section has been amended to include several new terms that may
be included by the court in a domestic violence protective order. The court
may provide for either party to obtain personal property or other items
from a location, including granting temporary possession of motor vehicles
owned by either or both parties and providing for the safety of the parties
while this occurs by ordering a law enforcement officer to accompany one
or both parties. Further, the court may prohibit a respondent from using
or possessing a firearm or other weapon, even if the respondent has a valid
license to possess a firearm or weapon. Also, the court may inform the
respondent that possession of a firearm while subject to a protective order
is a violation of federal law. The section further provides for terms of
protective orders where the petitioner or other person to be protected
was a witness to the family or domestic violence including the prohibition
from abusing, contacting, telephoning, communicating, harassing, verbally
abusing or otherwise intimidating the protected person, as well as entering
the protected person's school, business, or place of employment. Finally,
the effective duration of protective orders has been extended from 90 to
180 days at the court's discretion.
Effective date: June 3, 1998.
W. Va. Code §48-2A-7: Conditions for visitation in cases
involving domestic or family violence.
This new section permits a court to impose any condition that the court
deems necessary to provide for the safety of a child subject to court-ordered
visitation. Moreover, the court may order the exchange of a child in a
"protected setting." The law seems to state that law enforcement officers
may be ordered by the court to be present, at the very least, when potentially
hostile parents meet to exchange children for visitation.
Effective date: June 3, 1998.
W. Va. Code §48-2A-14: Arrest in domestic violence matters;
conditions.
This section has been amended to require law enforcement officers who
arrest anyone involved in a family or domestic violence incident to seize
all weapons that are alleged to have been involved or threatened to be
used in the commission of the incident. Also, officers may seize any weapon
that is in plain view or was discovered pursuant to a consensual search,
as necessary for the protection of the officer or other persons.
Effective date: June 3, 1998.
W. Va. Code §15-2-3: State police structure; how established.
This section was amended to allow for "troops" to replace "companies,"
and requires the Superintendent to promulgate an interpretive administrative
rule that establishes the organizational structure of the State Police.
Effective date: July 1, 1998.
W. Va. Code §15-2-4: Appointment of commissioned officers; non-commissioned
officers; other members; temporary and permanent positions.
The section has been amended to authorize the Superintendent of the
State Police to appoint fifteen principle supervisors holding the rank
of captain, major or lieutenant colonel. The section previously authorized
the Superintendent to appoint eleven principle supervisors.
Effective date: July 1, 1998.
W. Va. Code §29-3-12: Powers and duties of state fire
marshall.
This section was amended to give the state fire marshall the authority
to seek arrest warrants and arrest persons for explosives-related offenses.
Effective date: May 12, 1998.
W. Va. Code §20-2-4: Possession of wildlife.
This section has been amended to eliminate the time period for keeping
lawfully taken wildlife, and permits wildlife, except for protected birds,
spotted fawn, and bear cubs struck and killed by motor vehicles to be legally
possessed by the motorist if notice is given within twelve hours to a law
enforcement agency and a non-game hunting tag is obtained within twenty-four
hours.
Effective date: February 19, 1998.
W. Va. Code §61-2-10b: Malicious assault; unlawful assault;
battery and recidivism of battery; assault on police officers, conservation
officers, humane officers, emergency medical service personnel, firefighters,
fire marshal and county or state correctional employees; penalties.
This section has been amended to include protection from malicious wounding,
unlawful wounding, assault, and battery to state and county correctional
officers, humane officers, emergency medical personnel, firefighters, and
the state fire marshal and his employees.
Effective date: June 10, 1998.
W. Va. Code §21-13-3: Convenience food store regulations.
This new section requires convenience food stores that are open from
midnight to 5:00 a. m. to either have two employees during those hours
or, if only one employee is on duty, to have security cameras, or a security
booth, or to lock their doors and serve their customers from a pass-through
device. Also, parking lots are required to meet specific lighting standards
and all exits are required to have height markers to assist in gathering
descriptions of persons who commit robberies. Owners who violate this section
face civil monetary penalties.
Effective date: June 13, 1998.
W. Va. Code §17C-17-6a: Vehicles transporting compressed
gas containers.
This section makes it a misdemeanor to transport compressed gas containers
on the highway that are uncapped and unsecured, except for propane gas
for household use.
Effective date: June 13, 1998.
W. Va. Code §61-3-53: Taking identity of another person;
penalty.
This new section makes it a felony to take a person's identity with
the intention of fraudulently using the identification to make a financial
or credit transaction. Using a false identification to misrepresent a person's
age is exempted from this section.
Effective date: June 13, 1998.
W. Va. Code §46A-6E-101 et seq.: West Virginia Consumer
Credit and Protection Act - Telemarketing.
This new article provides for the regulation of certain telemarketers, requiring them to register with the Attorney General's Consumer Protection Division and post a 500K bond. The article
makes several exemptions from registration including telemarketers who
have provided sales service continuously for two years and who haven't
been convicted of violating any state or federal laws dealing with securities,
consumer protection, racketeering, fraud, or theft. Consumers can bring
civil legal action to recover actual damages and civil penalties can also
be levied by a court for unfair or deceptive practices. There are no criminal
penalties associated with this article.
Effective date: June 13, 1998.
W. Va. Code §61-7-6: Exceptions as to prohibitions against
carrying concealed deadly weapons.
This section has been amended to authorize the governor to enter into
reciprocity agreements with other states which would allow persons licensed
to carry concealed deadly weapons in those states to carry concealed weapons
in West Virginia.
Effective date: June 13, 1998.
W. Va. Code §17A-10-1: Classification of vehicles for
purpose of registration.
This section has been amended to do away with Class "E" and Class "K"
trucks and include all such vehicles under Class "B." Also, Class "L" has
been eliminated and Class "C" licenses will be issued for all trailers
and semi-trailers. Starting July 1, 2000, the Class "C" license registration
fee will be $50.00 for a non-transferrable lifetime registration.
Effective date: June 11, 1998.
W. Va. Code §20-7-18a &§20-7-18b: Law enforcement,
motorboating; litter - negligent homicide; penalties - operating under
influence of alcohol, controlled substances or drugs; penalties.
This new section establishes a comprehensive law for negligent homicides
while boating, and for boating while under the influence of alcohol and
drugs. Several criminal offenses are created. The law makes it a misdemeanor
negligent homicide to operate a motorboat or vessel in reckless disregard
of the safety of others that results in death. The law also creates the
felony offense of motorboating DUI with death when anyone operates a motorboat
or other vessel recklessly while under the influence of alcohol and/or
drugs and causes a death.
Effective date: June 13, 1998.
W. Va. Code §20-7-1c.: Conservation officers, ranks,
salary schedule, base pay, exceptions.
This section has been amended to increase base pay for conservation
officers by $700 a year for first and second year officers, and by $300
per year for all others. In addition, the officers get a $756 across-the-board
raise. The section also creates the rank of corporal at a base salary of
31,065.
Effective date: June 13, 1998.
W. Va. Code §62-4-16 & §62-11A-1a: Community
service work may be substituted in lieu of a fine in municipal court -
other sentencing alternatives.
This section was amended to expand the state law for alternative sentencing
of community service in lieu of jail time or fines. Circuit and municipal
judges, as well as magistrates, are now authorized to sentence non-violent
offenders to community service work with governmental, charitable or non-profit
organizations. The amendment specifies that each eight hours of community
service is credited against fines at the current federal minimum wage rate.
Effective date: June 13, 1998.
W. Va. Code §61-8D-5 et seq.: Sexual abuse by a parent,
guardian or custodian; parent, guardian or custodian allowing sexual abuse
to be inflicted upon a child; displaying of sex organs by a parent, guardian
or custodian; penalties.
These sections have been amended to increase the penalties for sexual
misconduct with a child by a parent, guardian or custodian. Conviction
for sexual exploitation of children under 16 will carry a prison term of
10 to 20 years, up from 5 to 15 years; knowingly procuring another to engage
in the sexual exploitation of children under 16 carries a prison term of
5 to 15 years, up from 1 to 5 years; sexual exploitation of children 16
or older becomes a felony punishable by 1 to 5 years in prison. This had
been a misdemeanor punishable by 6 months to 1 year in jail.
Effective date: June 13, 1998.
W. Va. Code §61-8F-1a et seq.: Sex Offender Registration
Act.
The Act has been amended to create a process for circuit courts to determine
if a person convicted of a sexually violent offense is to be classified
as a sexually violent predator and creates a five-member Sex Offender Registration
Advisory Board to assist courts in determining whether persons are sexually
violent predators. The law expands the duration for registering as a sexual
offender from 10 years to life for multiple or violent offenders, or for
individuals designated as predators; and requires probation officers to
notify the State Police when a sex offender is to be released. The Act
also requires that the Prosecuting Attorney and the State Police conduct
a community notification program in the communities in which sexually violent
predators intend to reside. The State Police is also required to maintain
a public registry of those sex offenders required to be registered for
life.
Effective date: June 13, 1998.
W. Va. Code §§8-10-2 & 8-34-1: Municipal court for municipalities - general right of appeal; recordation of jury trial; preparation of record.
These sections have been amended to require municipal court judges who
are not lawyers to complete mandatory training in basic principles of law
and procedure and to require municipal courts to follow the same rules
of criminal procedure as magistrate courts. The amendments further establish
that municipal court decisions may be appealed to the circuit court and
that jury trials must be electronically recorded.
Effective date: July 1, 1998.
W. Va. Code §17C-13-6: Stopping, standing or parking
privileges for persons with mobility impairment; definitions; qualification;
special registration plates and removable windshield placards; expiration;
application; violation; penalties.
This section has been amended to allow law enforcement agencies to use
trained volunteers to report vehicles illegally parked in handicapped spaces.
Volunteers will photograph the vehicles (showing the license plate) and
submit them to the law enforcement agency, who may issue a citation. The
volunteers are also required to complete a form provided by the law enforcement
agency that includes the vehicle license number, date, time, and location
of the illegally parked vehicle.
Effective date: May 20, 1998.
W. Va. Code §17C-4-1: Accidents involving death or personal
injuries.
This section has been amended to require the Commissioner of the Division
of Motor Vehicles to revoke a driver's privilege to drive when he or she
is convicted of failing to stop at the scene of an accident involving personal
injury or death.
Effective date: June 11, 1998.
W. Va. Code §17C-4-7: Written reports of accidents.
This section has been amended to remove the requirement that drivers
involved in an accident file a written report (the green accident report
form) with the Divison of Motor Vehicles. Law enforcement officers must
now forward a written report of accidents to the Division within 24 hours
of completing their investigation. The old law required that the reports
be filed within 10 days regardless of the status of the investigation.
Finally, all law enforcement agencies are required to report accidents
using forms prescribed by the Division.
Effective date: June 11, 1998.
W. Va. Code §17C-4-12: Garages to report bullet damage.
This section has been amended to remove the requirement that garages
report vehicle damage that indicates that an accident has taken place.
Garages must still report bullet damage.
Effective date: June 11, 1998.
W. Va. Code §17C-4-13: Accident reports to be confidential.
This section has been repealed since drivers and garages are no longer
required to file written reports of accidents.
Effective date: June 11, 1998.
W. Va. Code §15-2-5: Career progression system; salaries;
exclusion from wage and hour law, with supplemental payment; bond; leave
time for members called to duty in guard or reserves.
This section has been amended to provide a $756 across the board annual
pay raise for members of the State Police.
Effective date: July 1, 1998.
W. Va. Code §17A-4-10: Salvage certificates for certain
wrecked or damaged vehicles; fee; penalties.
This section has been amended to authorize the Division of Motor Vehicles
to issue titles for salvaged, flood, fire or reconstructed vehicles at
a fee of $5.00 when the vehicle has been previously branded as such. The
section also sets the amount of the privilege tax for these vehicles at
50% of the loan value as described in the NADA book.
Effective date: March 2, 1998.
W. Va. Code §29-3-16a: Smoke detectors in one- and two-story
family dwellings; carbon monoxide detectors in residential units; penalty.
This section has been amended to require the installation of carbon
monoxide detectors in residences constructed after July 1, 1998, which
have oil or natural gas furnaces or stoves. The amendments also require
that persons making repairs or conducting maintenance on existing fuel
burning units recommend installation of carbon monoxide detectors. Anyone
violating these provisions may be fined from $50 to $100.
Effective date: July 1, 1998.
W. Va. Code §17-24-8: Abandoned or junked motor vehicles;
notification to motor vehicle owner and lienholder; charges and fees; exceptions.
This section has been amended to allow motor vehicle dealers to obtain
title for abandoned, unclaimed vehicles, similar to provisions in current
law that apply to towing companies.
Effective date: June 13, 1998.
W. Va. Code §31A-2A-1 et seq.: Maxwell Governmental Access
to Financial Records Act.
This new article restricts the access of law enforcement and other governmental
agencies to financial records held by banks and other financial institutions.
Under the Act, bank records are only available if authorized by the bank
customer, or by judicial order, warrant, summons or subpoena, except where
the law requires disclosure to state regulatory agencies such as the Divisions
of Banking, Insurance or the State Auditor's Office. The authorization
signed by the bank customer must comply with specific requirements set
out in the statute. Also, records will be available to the Department of
Health and Human Resources to verify eligibility for welfare.
Effective date: June 13, 1998.
W. Va. Code §17C-6-3: When local authorities may alter
speed limits.
This section has been amended to allow municipalities to set speed limits below 25 mph in residential areas.
Effective date: June 9, 1998.
W. Va. Code §62-12-19: Violation of parole.
This section has been amended to clarify that only the Commissioner
of Corrections has the authority to issue arrest warrants for parole violators.
Also, the Division of Corrections is authorized to assess costs against
violators for expenses incurred in returning them to the state.
Effective date: June 13, 1998.
W. Va. Code §17C-15-19: Additional lighting equipment.
This section has been amended to allow motorists to equip their vehicles
with not more than one electroluminescent solid state ceramic front identification
plate without glare, mounted in conformance with the manufacturer's specifications.
Effective date: June 12, 1998.
W. Va. Code §49-5-2: Juvenile jurisdiction of circuit
courts, magistrate courts and municipal courts; constitutional guarantees;
hearings; evidence and transcripts.
This section has been amended to state that a juvenile can be brought
before the circuit court only through a juvenile petition requesting that
the juvenile be adjudicated as a status offender or juvenile delinquent;
or by certification or transfer to the juvenile jurisdiction from the criminal
jurisdiction of the circuit court, from a foreign circuit court or from
a magistrate or municipal court.
Effective date: June 13, 1998.
W. Va. Code §49-5-8: Taking a juvenile into custody.
This section has been amended to require law enforcement officers who
take a juvenile status offender into custody to notify the Department of
Health and Human Resources if circumstances present an immediate threat
of serious bodily harm to the juvenile if released or, if no responsible
adult can be found into whose custody the juvenile can be delivered.
Effective date: June 13, 1998.
W. Va. Code §15-1E-87: Absence without leave.
This new section creates the misdemeanor offense of being absent without
leave from the National Guard. Violators would be court-martialed and could
be jailed one day for each AWOL.
Effective date: June 11, 1998.