West Virginia Code of State Rules
Agency 149 - Crime, Delinquency And Correction
Title 149 - LEGISLATIVE RULE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION
Series 149-03 - Protocol For Law Enforcement Response to Domestic Violence
Section 149-3-3 - Definitions

Universal Citation: 149 WV Code of State Rules 149-3-3

Current through Register Vol. XLI, No. 38, September 20, 2024

3.1 "Credible corroborative evidence" means evidence that is worthy of belief and corresponds with the allegations of one or more elements of the offense and may include, but is not limited to, the condition of the victim, the accused, and the scene. (See W.Va. Code § 48-27-1002(b).)

3.2. "Credible evidence" means evidence of the victim's condition may include, but is not limited to, one or more contusions, scratches, cuts, abrasions, swellings, or other signs of physical injury; missing hair; torn clothing or clothing in disarray consistent with a struggle; observable difficulty in breathing or breathlessness consistent with the effects of strangulation, choking or a body blow; observable difficulty in movement consistent with the effects of a body blow or other unlawful physical contact.

3.2.1. Credible evidence of the condition of the accused may include, but is not limited to, physical injury or other conditions similar to those set out for the condition of the victim which is consistent with the alleged offense or alleged acts of self-defense by the victim.

3.2.2. Credible evidence of the condition of the scene may include, but is not limited to, damaged premises or furnishings or disarray or misplaced objects consistent with the effects of a struggle.

3.2.3. Other credible evidence may include, but is not limited to, statements by the accused admitting one or more elements of the offense; threats made by the accused in the presence of a law enforcement officer; audible evidence of a disturbance heard by the dispatcher/telecommunicator or other agent receiving the request for police assistance; or written statements by witnesses.

3.3. "County" means any one of the 55 major political subdivisions of the state. (See W.Va. Code § 30-29-1(3).)

3.4. "Deadly weapon" means an instrument that is designed to be used to produce serious bodily injury or death, or is readily adaptable to that use. The term "deadly weapon" includes, but is not limited to, a blackjack, a gravity knife, a knife, a switchblade knife, a nunchuka, metallic or false knuckles, and firearms, and as defined in W. Va. Code § 61-7-2(5).

3.5. "Dispatcher" means a telecommunicator who receives calls from individuals who need assistance from firefighters, law enforcement officer, and emergency medical services. Once information is obtained from the caller, telecommunicators activate the services necessary to respond to the nature of the call for help and maintain close contact with field units to monitor response and needed support requirements.

3.6. "Domestic assault" means the unlawful attempt to commit a violent injury of another family or household member or unlawfully committing an act which places another family or household member in reasonable apprehension of immediately receiving a violent injury. (See W.Va. Code § 61-2-28(b).)

3.7. "Domestic battery" means the unlawful and intentional physical contact of an insulting or provoking nature with another family or household member or unlawfully and intentionally causing physical harm to another family or household member. (See W.Va. Code § 61-2-28(a).)

3.8. "Domestic Violence Database" means the database of active domestic violence protective orders maintained by the Supreme Court of Appeals of West Virginia pursuant to W. Va. Code § 51-1-21.

3.9. "Elderly person" means a person who is 65 years or older. (See W.Va. Code § 61-2-29b(h)(2).)

3.10. "Family or household members" (See W.Va. Code § 48-27-204) mean persons who:

3.10.1. Are or were married to each other;

3.10.2. Are or were living together as spouses;

3.10.3. Are or were sexual or intimate partners;

3.10.4. Are or were dating: Provided, that a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;

3.10.5. Are or were residing together in the same household;

3.10.6. Have a child in common regardless of whether they have ever married or lived together;

3.10.7. Have the following relationships to another person:
3.10.7.a. Parent;

3.10.7.b. Stepparent;

3.10.7.c. Brother or sister;

3.10.7.d. Half-brother or half-sister;

3.10.7.e. Stepbrother or stepsister;

3.10.7.f. Father-in-law or mother-in-law;

3.10.7.g. Stepfather-in-law or stepmother-in-law;

3.10.7.h. Child or stepchild;

3.10.7.i. Daughter-in-law or son-in-law;

3.10.7.j. Stepdaughter-in-law or stepson-in-law;

3.10.7.k. Grandparent;

3.10.7.l. Step grandparent;

3.10.7.m. Aunt, aunt-in-law, or step aunt;

3.10.7.n. Uncle, uncle-in-law, or step uncle;

3.10.7.o. Niece or nephew;

3.10.7.p. First or second cousin; or,

3.10.8. Have the relationships set forth in 3.10.7.a. through 3.10.7.p., of this subsection, to a family or household member, as defined in subsections 3.10.1. through 3.10.6. of this section.

3.11. "Domestic violence" (See W.Va. Code § 48-27-202) means the occurrence of one or more of the following acts between family or household members:

3.11.1. Attempting to cause or intentionally, knowingly, or recklessly causing physical harm to another person with or without dangerous or deadly weapons;

3.11.2. Placing another person in reasonable apprehension of physical harm;

3.11.3. Creating fear of physical harm by harassment, stalking, psychological abuse, or threatening acts;

3.11.4. Committing either sexual assault or sexual abuse as those terms are defined in W. Va. Code §§ 61-8B-1 et. seq. and § 61-8D-1 et seq.; or,

3.11.5. Holding, confining, detaining, restraining, or abducting another person against that person's will.

3.12. "Firearm" means any weapon that will expel a projectile by action of an explosion. (See W.Va. Code § 61-7-2(7). Provided, That it does not mean an antique firearm (as defined in W.Va. Code § 61-7-2(1)) except for the purposes of a domestic violence protective order prohibiting possession of any firearm or ammunition per W.Va. Code § 48-27-502.

3.13. "Financial exploitation" or "financially exploit" means the intentional misappropriation or misuse of funds or assets of an elderly person, protected person, or incapacitated adult, but shall not apply to a transaction or disposition of funds or assets where the accused made a good-faith effort to assist the elderly person, protected person, or incapacitated adult with the management of his or her money or other things of value §61-2-29(b)(h)(3).

3.14. "Incapacitated adult" means any person eighteen years of age or older who by reason of advanced age, physical, mental, or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health §61-2-29(a)(4).

3.15. "Law enforcement agency" means any duly authorized state, county, or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality of this state.

3.16. "Law enforcement officer" or officer means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent, and detect crime, make arrests, and enforce the laws of the state or any county or municipality of this state, other than parking ordinances, and includes those persons employed as security officer at state institutions of higher education.

3.17. "Law enforcement official" means the duly appointed chief administrator of a designated law-enforcement agency or a duly authorized designee.

3.18. "Municipality" means any incorporated village, town, or city whose boundaries lie within the geographic boundaries of the state.

3.19. "Protected Person" means an adult individual, eighteen years of age or older, who has been found by a court, because of mental impairment, to be unable to receive and evaluate information effectively or to respond to people, events, and environments to such an extent that the individual lacks the capacity:

(a) To meet the essential requirements for his or her health, care, safety, habilitation, or therapeutic needs without the assistance or protection of a guardian; or

(b) To manage property or financial affairs or to provide for his or her support or for the support of legal dependents without the assistance or protection of a conservator. A finding that the individual displays poor judgement, alone, is not sufficient evidence that the individual is a protected person within the meaning of this subsection. "Protected person" also means a person whom a court has determined is a missing person. (See W.Va. Code § 44A-1-4(13).)

3.20. "Protective Order" or order of protection or protection order under W.Va. Code § 48-28-2 Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, means an injunction or other order, issued under domestic violence, family violence, anti-stalking, or similar domestic relations laws. A protection order is issued to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to a protected individual. A protection order must be issued by a court; agency or other entity authorized by law to issue or modify a protective order. (See W.Va. Code § 48-28-2(6).) Protection Orders include out-of-state orders and are entitled to full faith and credit. (See W.Va. Code § 48-27-310.)

3.21. "Strangulation, Suffocation, Asphyxiation" (See W.Va. Code § 61-2-9d(a)(2).)

3.21.1. "Asphyxiate" means knowingly and willfully restricting the normal breathing or circulation of blood by the application of pressure on the chest or torso.

3.21.2. "Strangle" means knowingly and willfully restricting another person's air intake or blood flow by the application of pressure on the neck or throat.

3.21.3. "Suffocate" means knowingly and willfully restricting the normal breathing or circulation of blood by blocking the nose or mouth of another person.

3.22. "Trauma Informed" means being committed to not re-traumatizing victims or witnesses. That includes formulating questions in a way that does not assign guilt or responsibility, but instead empowers victims and witnesses in assisting efforts. Doing so:

(1) ensures that the victim or witness will cooperate with you,

(2) allows the victim or witness to feel as if they are safe and can fully trust the criminal justice process, and

(3) gives law enforcement access to a greater range of details in the victims' or witnesses' account of the crime.

3.23. "Unlawful restraint" means any person who, without legal authority intentionally restrains another with the intent that the other person not be allowed to leave the place of restraint and who does so by physical force or by overt or implied threat of violence or by actual physical restraint but without the intent to obtain any other concession or advantage as those terms are used in section fourteen-a of this article. (See W.Va. Code § 61-2-14g.)

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