W. Va. Code R. § 149-7-4 - Personal Safety Orders

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.

Notes

W. Va. Code R. § 149-7-4