Debriefing the 2022 WV Regular Legislative Session – Public Safety

By Brian J. Skinner, Esq.

In terms of legislation affecting public safety, the West Virginia Legislature during its 2022 Regular Session made relatively few changes to the state’s criminal code, leaving a bill purporting to rewrite the criminal code (House Bill 2017) on the sidelines.

The following is a summary of legislation passed this regular session that impacts law enforcement, including prosecuting attorneys.

Three bills specifically amend the state’s criminal code. Senate Bill 232 amended West Virginia Code §61-11-18 to clarify when a qualifying offense cannot be considered when imposing a sentence enhancement for a third-offense felony. The amendment excludes an offense from being considered if more than 20 years have elapsed between: (1) the release of the person from his or her term of imprisonment or period of supervision resulting from the most recent qualifying offense or the expiration of a period of supervised release resulting from such offense; and (2) the conduct underlying the current charge.

Senate Bill 536 amends the Uniform Controlled Substances Act by repealing §60A-4-415, which provides for the unlawful manufacture, delivery, transport into the state, or possession of fentanyl and instead adds specific language to §60A-4-401and §60A-4-409 to criminalize the manufacture, delivery, possession, or transportation of a schedule II-controlled substance when the controlled substance is fentanyl.

Additionally, the bill creates a new offense for knowingly or intentionally adulterating another controlled substance using fentanyl; creating a counterfeit substance or imitation controlled substance using fentanyl; or causing the adulteration or counterfeiting or imitation of another controlled substance using fentanyl. The new offense is a felony punishable by imprisonment for not less than three or more than 15 years, or fined not more than $50,000, or both.

Finally, a new felony offense is created for persons over the age of 21 who knowingly and intentionally causes, aids, abets, or encourages a person under the age of 18 to distribute, dispense, manufacture, or possess with the intent to distribute a controlled substance. The offense provides a sanction of a fine of up to $10,000 or imprisonment for not more than five years or both.

House Bill 4311 amends the current statute criminalizing illegal voting activity by creating a new offense for persons who knowingly and willfully vote or attempt to vote more than once at the same election held in this state; in more than one county in this state at the same or equivalent election; or, in this state and another state or territory at the same or equivalent election, irrespective of different offices, questions, or candidates on the ballot, knowing the same to be illegal. The new offense is a felony punishable by imprisonment for one to 10 years, a fine of not more than $10,000, or both. The Legislature also amended the current illegal voting offenses by modifying the elements and increasing the penalties from the current misdemeanor to felonies punishable from one to 10 years in prison.

Finally, House Bill 4600 repeals §61-8D-5a, which provides criminal penalties for persons who abuse a noncommunicative minor child when they have supervisory responsibility for the child. In its place, the bill adds a new article to the West Virginia Code titled “Special Protections for Disabled Children Act of 2022.” (§61-8F-1 et seq.)

The new article contains criminal sanctions for the maltreatment of a disabled child, battery and assault of a disabled child, the failure to report, obstruction, and retaliation. Additionally, the bill includes a mandate that the West Virginia Prosecuting Attorneys Institute, in collaboration with the Law Enforcement Professional Standards subcommittee on the Governor’s Committee on Crime Delinquency and Correction, develop a three-hour mandatory educational program for prosecuting attorneys and law enforcement officers that offers education on the provisions of the new law and the investigation and prosecution of crimes against disabled children.

Other bills that would have amended the state’s criminal code but failed to garner approving votes in both chambers include Senate Bill 86 (creating the criminal offense of sexual extortion); Senate Bill 413 (clarifying the crime of harassment to include stalking); and Senate Bill 697 (modifying and clarifying elements of kidnapping and unlawful restraint). All three bills passed the Senate but died in the House Committee on the Judiciary. House Bill 4032 (modifying the criminal penalties imposed on a parent, guardian, or custodian for child abuse) passed the House but did not make it out of the Senate Committee on the Judiciary.

Not only did the Legislature amend specific criminal offenses, but it also enacted legislation more broadly affecting the criminal justice system.

Senate Bill 575 clarifies that criminal sanctions for the imposition of sexual acts on incarcerated adults also apply to juvenile facilities.

Senate Bill 616 provides for the confidentiality of records and information maintained by the courts or any law-enforcement agency that contains identifying information of a victim in an arrest, investigation, or complaint of specific sexual offenses. The bill provides exceptions that authorize access to the records when required by law; when necessary for law enforcement purposes or preparation for court proceedings; or pursuant to an order of a court.

Two bills amend the Crimes Victims Compensation Fund. House Bill 4307 increases the amounts of payable benefits for victims’ travel and relocation expenses and for mental health counseling for secondary victims. These amounts have not been changed in more than 15 years.

House Bill 4308 authorizes a foster parent, legal guardian, court-appointed guardian ad litem, or any person or entity having legal custody of a minor child, including the agency that filed the civil abuse and neglect petition, to apply for benefits on behalf of a minor child. The bill also makes crime victims’ compensation fund records and proceedings related to a claim filed on behalf of a minor child confidential.

The Legislature passed two bills affecting parolees. Senate Bill 437 allows the Chairperson of the Parole Board to release a parolee early after he or she served a minimum of one year on parole following a request from the Commissioner of the Division of Corrections and Rehabilitation. Senate Bill 449 clarifies that the Nonviolent Offense Parole Program is not available to offenders who are serving a sentence that runs concurrently or consecutively with a disqualifying offense and to further clarify that the program is not available to an offender who has been released under the program on a previous occasion.

The Legislature authorized a couple of bills that addressed law-enforcement training. Senate Bill 570 authorizes basic training for law enforcement on Alzheimer’s and related dementias to include at least two hours of instruction in prescribed procedures and techniques. House Bill 4578 authorizes the Superintendent of the State Police to administer the Handle with Care program.

The authority to carry a concealed firearm as part of a person’s employment was extended in House Bill 4596 to home incarceration supervisors, state adult probation officers, state juvenile probation officers, and state parole officers. All are now, by virtue of their duties, considered qualified law-enforcement officers who may carry a concealed firearm nationwide as authorized by the federal Law-Enforcement Officers Safety Act.

A bill modifying the state’s involuntary commitment process, House Bill 4377, includes a provision requiring the Department of Health and Human Resources (DHHR) to reimburse the Sheriff, Department of Corrections and Rehabilitation, or other law enforcement agency for the actual costs related to transporting a patient who has been involuntarily committed. This requirement is effective July 1, 2022.

That bill also includes the Sheriff’s Association as part of a collaborative effort led by the Secretary of DHHR to evaluate the utilization of alternative transportation providers and develop standards that define the role, scope, regulation, and the training necessary for the safe and effective utilization of alternative transportation providers. The evaluation is to also identify potential financial sources for the payment of alternative transportation providers. Recommendations regarding the evaluation are to be submitted to the President of the Senate and the Speaker of the House of Delegates on or before July 31, 2022.

Legislation specifically impacting prosecuting attorneys includes Senate Bill 172, which increases the compensation of elected county officials, including prosecuting attorneys, and House Bill 4340, which repeals a requirement in current law that, in the case of a death that is the subject of a criminal investigation, the medical examiner could not release a body or part that is the subject of an anatomical gift without the express authorization of the prosecuting attorney.

The Legislature enacted legislation amending provisions of law related to the Policeman Pension and Relief Fund in Senate Bill 443. The bill amends the authorizing statute to include active police officers and firefighters as electors of trustees for the Policeman Pension and Relief Fund.

Additionally, Senate Bill 445 modifies provisions related to persons receiving disability benefits through the Policeman Pension and Relief fund. If the retirant refuses or is unable to provide a certified copy of his or her tax return by April 15 for the previous year, the trustees of the policemen’s pension and relief fund or firemen’s pension and relief fund are required to hold the member’s monthly disability pension in abeyance until the retirant complies.

A couple of bills involved the magistrate courts, including House Bill 4712, which makes changes to current provisions related to payment plans for costs, fines, forfeitures, restitution, or penalties in circuit, magistrate, and municipal courts. Additionally, State Bill 573 which requested the Supreme Court of Appeals develop a system where magistrates would be authorized to preside in certain instances outside normal court hours, was vetoed by the Governor.

While not specifically involving the criminal justice system, Senate Bill 181 is intended to improve the quality and access to behavioral health crisis services, which likely will result in a positive impact on law enforcement officers who are too often required to deal with individuals experiencing a mental health crisis. The bill implements the National Suicide Hotline Designation Act of 2020 and the Federal Communication Commission’s rules adopted July 16, 2020, to assure that all citizens and visitors of the state of West Virginia receive a consistent level of 988 and crisis behavioral health services no matter where they live, work, or travel in the state.

Brian Skinner is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.