Current through Register Vol. XLI, No. 43, October 25, 2024
Section 149-3-4 - Protective Orders4.1. 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.