Current through Register Vol. XLI, No. 38, September 20, 2024
4.1. A
personal safety order is an injunction or other order, issued under sexual
assault, attempted sexual assault, stalking, or similar laws. A protective
personal safety 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 personal safety order
may include any or all of the following relief: order the respondent to refrain
from committing or threatening to commit an act specified in subsection (a) of
West Virginia Code 53-8-4 against the petitioner; 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; order the respondent to refrain from entering
the residence of the petitioner; order the respondent to remain away from the
place of employment, school or residence of the petitioner; 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; order either party to pay
filing fees and costs. A personal safety order must be issued by a court;
agency or other entity authorized by law to issue or modify a personal safety
order.
4.1.a. Stalking offenses occurring in
the context of intimate partner or other domestic situation may be covered by
Domestic Violence Protective Orders and Legislative Rule 149 CSR 3 and therein
governed as other Domestic Violence Offenses.
4.1.b. 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.b.1.
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 and personal safety orders shall be a priority. The law enforcement
officer shall immediately, but not longer than 72 hours, make every reasonable
effort to locate respondent for service of protective and personal safety
orders. Service shall be performed on any day including Sundays and holidays.
No law enforcement officer shall refuse to serve pleadings or orders in
personal safety or protective order actions.
4.1.b.2. 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.c. When serving the personal safety
order, the officer shall inform the respondent of the mandatory relief of the
order.
4.1.d. If the court
prohibits the respondent from possessing firearms as defined in West Virginia
Code 53-8-7, then the law enforcement officer should:
4.1.d.1. Inquire about whether or not a
weapon was used or threatened to be used in the commission of the offense
predicating the petitioning for the personal safety order;
4.1.d.2. Determine if the respondent has
violated any prior order as specified in this protocol;
4.1.d.3. Determine if the respondent has been
convicted of an offense involving the use of a firearm;
4.1.e. 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.f. 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; and
4.1.g. 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 personal safety order.
4.2. A personal safety order
remains in effect for the period of time stated in the order unless the
personal safety order is dismissed or extended by the court.
4.3. A personal safety order issued in any
county in West Virginia is in effect in all counties in West
Virginia.
4.4. A personal safety
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 protective 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.a. There is probable cause to believe
that a personal safety 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.b. In circumstances whereby a written
personal safety order is not presented, the law enforcement officer may
consider other credible information in determining whether there is probable
cause to believe that the order exists and is currently in effect.
4.4.c. Presentation of a certified copy of a
personal safety order is not required for enforcement.
4.4.d. For the purposes of this section, the
personal safety order may be inscribed on any tangible medium or may have been
stored in an electronic or other medium if it is retrievable in perceivable
form.
4.4.e. A personal safety
order, temporary or final, from another jurisdiction may be enforced even if
the order is not registered, filed or entered into the state law enforcement
information system.
4.5.
If a law enforcement officer determines that an otherwise valid personal safety
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.
