Current through Register Vol. XLI, No. 38, September 20, 2024
4.1. A
protective order is an injunction or other order, issued under domestic
violence, family violence, anti-stalking, or similar domestic relations laws. A
protective 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 protective order must be issued
by a court; agency or other entity authorized by law to issue or modify a
protective order.
4.1.1. Protective orders
include, but are not limited to, Emergency Protective Orders, Temporary
Emergency Protective Orders, Domestic Violence Protective Orders, Temporary or
Final Protective Orders issued as a part of Temporary or Final Divorce Orders,
or any other terms or orders that have a similar purpose.
4.1.2. Domestic violence protective orders
are considered criminal in nature. Law enforcement agencies and officers in the
state of West Virginia are responsible for the service of all orders and
petitions for protection. Service of protective orders shall be a priority. The
Law enforcement officer shall immediately, but no longer than 72 hours, make
every reasonable effort to locate respondent for service of protective orders.
Service shall be performed on any day including Sundays and holidays. No law
enforcement officer shall refuse to serve pleadings or orders in domestic
violence protective order actions.
4.1.2.a.
When the officer serves the order upon the respondent, the officer shall file
the return of service within 24 hours to the circuit clerk's office.
4.1.3. When serving the protective
order, the officer shall inform the respondent that possession of firearms and
ammunition is prohibited under state and federal law.
4.1.4. The serving officer should inquire of
the respondent whether the respondent owns or possesses firearms and where the
firearms and ammunition are located.
4.1.5. The serving officer should inform the
respondent that failure to surrender or transfer his or her firearms and
ammunition could result in the accuser's arrest for violation of the court's
order.
4.1.6 The serving officer
should inquire of the respondent what the respondent intends to do with his or
her firearms.
4.1.7. The serving
officer should request that the respondent surrender all of his or her firearms
and ammunition to the officer or transfer to a qualified third party (a party
who is not prohibited from possessing firearms under state and federal
law).
4.1.8. The serving officer
should encourage the respondent to make a decision about his or her firearms
while the officer is present to verify the surrender or transfer.
4.1.9. If the respondent refuses to surrender
or transfer his or her firearms and ammunition after the serving officer has
provided a reasonable opportunity to do so, then the serving officer shall
arrest the respondent for violation of the protective order.
4.2. A protective order remains in
effect for the period of time stated in the order unless the protective order
is dismissed or extended by the court.
4.3. A protective order issued in any county
in West Virginia is in effect in all counties in West Virginia.
4.4. A protection order issued by a state of
the United States, the District of Columbia, Puerto Rico, the United States
Virgin Islands or any territory or insular possession subject to the
jurisdiction of the United States, or an Indian tribe or band that has
jurisdiction to issue protection orders shall be accorded full faith and credit
and enforced as if it were an order of this state, whether or not the relief
ordered is available in this state, if there is probable cause to believe that
it is a valid foreign protection order.
4.4.1.
There is probable cause to believe that a protection order is valid if it
identifies both the protected individual and the respondent and the order
appears, on its face, to be authentic and currently in effect.
4.4.1.a. In circumstances whereby a
protection order is not presented, the law enforcement officer may consider
other credible information such as, but not limited to, the domestic violence
database, in determining whether there is probable cause to believe that the
order exists and is currently in effect.
4.4.2. Presentation of a certified copy of a
protection order is not required for enforcement.
4.4.3. A protection order, temporary or
final, from another jurisdiction may be enforced even if the order is not
registered, filed, or entered into the Domestic violence database.
4.5. If a law enforcement officer
determines that an otherwise valid protective 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 content of the order and make a reasonable
effort to serve any available copy of the order upon the respondent. The
officer shall allow the respondent a reasonable opportunity to comply with the
order. Once the officer has notified or served the respondent, the officer
shall enforce the order.
