HB 4366 — Relating to military interpersonal violence

Presentation of a foreign protection order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid foreign protection order exists.

For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form.

Presentation of a certified copy of a protection order is not required for enforcement.(b) If a foreign protection order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid foreign protection order exists.(c) If a law-enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.(d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this article.(e)(1) If, in the course of conducting an otherwise lawful arrest of a person who is a member of the United States Armed Forces, the West Virginia National Guard, or the National Guard of any other state, a law-enforcement officer of this state:(A) Determines that a military protective order has been issued against the person subject to arrest and that said order is registered in the Federal Bureau of Investigation's National Crime Information Center database;

and(B) Has probable cause to believe that the person subject to arrest has violated the military protective order;The law-enforcement officer shall notify the law-enforcement agency that entered the military protective order into the National Crime Information Center database of the arrest and the circumstances thereof.

 (2) For purposes of this subsection, "military protective order" means a protective order issued by a commanding officer in the United States Armed Forces, the West Virginia National Guard, or the National Guard of any other state against a person under such officer's command.

Chaper 53.

Extraordinary Remedies.

Article 8.

Personal Safety orders.

§53-8-1.

Definitions.

In this article, the following words have the meanings indicated.(1) Final personal safety order.

— "Final personal safety order" means a personal safety order issued by a magistrate under section seven of this article.(2) Incapacitated adult.

–- "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to physically carry on the daily activities of life necessary to sustaining life and reasonable health.(3) Law-enforcement officer.

–- "Law-enforcement officer" means any duly authorized member of a law-enforcement agency who is authorized to maintain public personal safety and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances.Military Protective Order.

– "Military protective order" means a protective order issued by a commanding officer in the United States Armed Forces, the West Virginia National Guard, or the National Guard of any other state against a person under such officer's command.(4) Petitioner.

— "Petitioner" means an individual who files a petition under section four of this article.(5) Place of employment.

–- "Place of employment" includes the grounds, parking areas, outbuildings and common or public areas in or surrounding the place of employment.(6) Residence.

–- "Residence" includes the yard, grounds, outbuildings and common or public areas in or surrounding the residence.(7) Respondent.

–- "Respondent" means an individual alleged in a petition to have committed an act specified in §53-8-4(a) of this code against a petitioner.(8) School.

–- "School" means an educational facility comprised of one or more buildings, including school grounds, a school bus or any school-sponsored function or extracurricular activities.

For the purpose of this subdivision, "school grounds" includes the land on which a school is built together with such other land used by students for play, recreation or athletic events while attending school.

"Extracurricular activities" means voluntary activities sponsored by a school, a county board or an organization sanctioned by a county board or the State Board of Education and include, but are not limited to, preparation for and involvement in public performances, contests, athletic competitions, demonstrations, displays, organizations and clubs.(9) Sexual offense.

–- "Sexual offense" means the commission of the offenses set out in any of the following sections:(A) §61-8-9 of this code;(B) §61-8-12 of this code;(C) §61-8A-2 of this code;(D) §61-8A-4 of this code;(E) §61-8A-5 of this code;(F) §61-8B-3 of this code;(G) §61-8B-4 of this code;(H) §61-8B-5 of this code;(I) §61-8B-7 of this code;(J) §61-8B-8 of this code;(K) §61-8B-9 of this code;(L) §61-8C-2 of this code;(M) §61-8C-3 of this code;(N) §61-8D-3a of this code;(O) §61-8D-5 of this code;

and(P) §61-8D-6 of this code.(10) Temporary personal safety order.

– "Temporary personal safety order" means a personal safety order issued by a magistrate under section five of this article.

§53-8-5.

Temporary personal safety orders.

(a) Authorized;

forms of relief available.

—(1) If after a hearing on a petition, whether ex parte or otherwise, a magistrate finds that there is reasonable cause to believe that the respondent has committed an act specified in §53-8-4(a) of this code, against the petitioner, the magistrate shall issue a temporary personal safety order to protect the petitioner.(2) The temporary personal safety order may include any or all of the following relief:(A) Order the respondent to refrain from committing or threatening to commit an act specified in §53-8-4(a) of this code against the petitioner;(B) Order the respondent to refrain from contacting, attempting to contact or harassing the petitioner directly, indirectly or through third parties regardless of whether those third parties know of the order;(C) Order the respondent to refrain from entering the residence of the petitioner;(D) Order the respondent to remain away from the place of employment, school or residence of the petitioner:

Provided, That when the respondent is alleged to have committed an act specified in §53-8-4(a)(2) of this code, the magistrate may not prohibit the respondent from entering the respondent's place of employment;(E) Order the respondent not to visit, assault, molest or otherwise interfere with the petitioner and, if the petitioner is a child, the petitioner's siblings and minors residing in the household of the petitioner;(F) The court, in its discretion, may prohibit a respondent from possessing a firearm as defined in §61-7-7 of this code if:(i) A weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the personal safety order;(ii) The respondent has violated any prior order as specified under this article;

or(iii) The respondent has been convicted of an offense involving the use of a firearm;(G) Order either party to pay filing fees and costs of a proceeding pursuant to section thirteen of this article.(3) If the magistrate issues an order under this section, the order shall contain only the relief necessary to protect the petitioner.(4) For purposes of issuing a temporary personal safety order under this section, a magistrate may treat a military protective order as reasonable cause to believe that the respondent has committed an act specified in §53-8-4(a) of this code against the petitioner if the military protective order:(A) Is still in effect and has not been terminated;

and(B) Was issued against the respondent because the respondent committed an act specified in §53-8-4(a) of this code against the petitioner.(b) Immediate.

-– The temporary personal safety order shall be immediately served on the respondent by law enforcement, or at the option of the petitioner, pursuant to rules promulgated pursuant to section fifteen of this article.(c) Length of effectiveness.

—(1) The temporary personal safety order shall be effective for not more than 10 days after service of the order.(2) The magistrate may extend the temporary personal safety order to effectuate service of the order or for other good cause.

The failure to obtain service upon the respondent does not constitute a basis to dismiss the petition.(d) Final personal safety order hearing.

— The magistrate may proceed with a final personal safety order hearing instead of a temporary personal safety order hearing if:(1) (A) The respondent appears at the hearing;

or(B) The court otherwise has personal jurisdiction over the respondent;

and(2) The petitioner and the respondent expressly consent to waive the temporary personal safety order hearing.  AdoptedRejected