§5-1-9. Hearing after arrest; application for writ of habeas corpus; arrest and confinement of fugitives from another state; bail; persons involved in criminal or civil actions in this state


Published: 2015

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WEST VIRGINIA CODE











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WVC 5 - 1 - 9

§5-1-9. Hearing after arrest; application for writ of habeas

corpus; arrest and confinement of fugitives from

another state; bail; persons involved in criminal or

civil actions in this state.

(a) No person arrested upon a warrant shall be delivered over

to the agent whom the executive authority demanding him or her

shall have appointed to receive him or her unless he or she shall

first be taken forthwith before a judge of a court of record in

this state, who shall inform him or her of the demand made for his

or her surrender and of the crime with which he or she is charged,

and that he or she has the right to demand and procure legal

counsel and if the prisoner or his or her counsel shall state that

he or they desire to test the legality of his or her arrest, the

judge of the court of record shall fix a reasonable time to be

allowed him or her within which to apply for a writ of habeas

corpus. When a writ is applied for, notice thereof, and of the

time and place of hearing thereon, shall be given to the

prosecuting attorney of the county in which the arrest is made and

in which the accused is in custody, and to the agent of the

demanding state.

(b) Any officer who delivers to the agent for extradition of

the demanding state a person in his or her custody under the

governor's warrant, in willful disobedience to subdivision (a) of

this section, shall be guilty of a misdemeanor and, on conviction

thereof shall be fined not more than one thousand dollars or be imprisoned not more than six months, or both.

(c) The officer or persons executing the governor's warrant of

arrest, or the agent of the demanding state to whom the prisoner

may have been delivered, may, when necessary, confine the prisoner

in any city, county or regional jail; and the keeper of the jail

shall receive and safely keep the prisoner until the officer or

person having charge of him or her is ready to proceed on his or

her route, the officer or person being chargeable with the expense

of keeping.

The officer or agent of a demanding state to whom a prisoner

may have been delivered following extradition proceedings in

another state, or to whom a prisoner may have been delivered after

waiving extradition in the other state, and who is passing through

this state with such a prisoner for the purpose of immediately

returning the prisoner to the demanding state may, when necessary,

confine the prisoner in any city, county or regional jail; and the

keeper of the jail shall receive and safely keep the prisoner until

the officer or agent having charge of him or her is ready to

proceed on his or her route, the officer or agent, however, being

chargeable with the expense of keeping: Provided, That the officer

or agent shall produce and show to the keeper of the jail

satisfactory written evidence of the fact that he or she is

actually transporting a prisoner to the demanding state after a

requisition by the executive authority of the demanding state. The

prisoner may not be entitled to demand a new requisition while in this state.

(d) Whenever any person within this state shall be charged on

the oath of any credible person before any judge or magistrate of

this state with the commission of any crime in any other state and,

except in cases arising under subdivision (g), section seven of

this article, with having fled from justice, or with having been

convicted of a crime in that state and having escaped from

confinement, or having broken the terms of his or her bail,

probation or parole, or whenever complaint has been made before any

judge or magistrate in this state setting forth on the affidavit of

any credible person in another state that a crime has been

committed in the state and that the accused has been charged in the

state with the commission of the crime, and, except in cases

arising under subdivision (g), section seven of this article, has

fled from justice, or with having been convicted of a crime in that

state and having escaped from confinement, or having broken the

terms of his or her bail, probation or parole, and is believed to

be in this state, the judge or magistrate shall issue a warrant

directed to any peace officer commanding him or her to apprehend

the person named therein, wherever he or she may be found in this

state, and to bring him or her before the same or any other judge,

magistrate, or court who or which may be available in or convenient

of access to the place where the arrest may be made, to answer the

charge or complaint and affidavit, and a certified copy of the

sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

(e) The arrest of a person may be lawfully made also by any

peace officer, or a private person, without a warrant, upon

reasonable information that the accused stands charged in the

courts of a state with a crime punishable by death or by

imprisonment for a term exceeding one year, but when so arrested

the accused must be taken before a judge or magistrate with all

practicable speed and complaint must be made against him or her

under oath setting forth the ground for the arrest as in the

preceding section and thereafter his or her answer shall be heard

as if he or she had been arrested on a warrant. Correctional

officers may, additionally, make complaint against persons in their

custody for whom they have a reasonable belief stand accused of

crimes, punishable by death or confinement for a term exceeding one

year, in the courts of another state.

(f) If from the examination before the judge or magistrate it

appears that the person held is the person charged with having

committed the crime alleged and, except in cases arising under

subdivision (g), section seven of this article, that he or she has

fled from justice, the judge or magistrate must, by a warrant

reciting the accusation, commit him or her to the county or

regional jail for a time not exceeding thirty days, and specified

in the warrant, as will enable the arrest of the accused to be made

under a warrant of the governor on a requisition of the executive

authority of the state having jurisdiction of the offense, unless the accused give bail as provided in subdivision (g) of this

section, or until he or she shall be legally discharged.

(g) Unless the offense with which the prisoner is charged is

shown to be an offense punishable by death or life imprisonment

under the laws of the state in which it was committed, a judge or

magistrate in this state may admit the person arrested to bail by

bond, with sufficient sureties, and in a sum as he or she considers

proper, conditioned for his or her appearance before him or her at

a time specified in the bond, and for his or her surrender, to be

arrested upon the warrant of the governor of this state.

(h) If the accused is not arrested under warrant of the

governor by the expiration of the time specified in the warrant or

bond, a judge or magistrate may discharge him or her or may

recommit him or her for a further period not to exceed sixty days,

or a judge or magistrate may again take bail for his or her

appearance and surrender as provided in subdivision (g) of this

section, but within a period not to exceed sixty days after the

date of the new bond.

(i) If the prisoner is admitted to bail, and fails to appear

and surrender himself or herself according to the conditions of his

or her bond, the judge, or magistrate, by proper order, shall

declare the bond forfeited and order his or her immediate arrest

without warrant if he or she is within this state. Recovery may be

had on a bond in the name of the state as in the case of other

bonds given by the accused in criminal proceedings within this state.

(j) If a criminal prosecution has been instituted against the

person under the laws of this state and is still pending, the

governor, in his or her discretion, either may surrender him or her

on demand of the executive authority of another state or hold him

or her until he or she has been tried and discharged or convicted

and punished in this state: Provided, That any person under

recognizance to appear as a witness in any criminal proceeding

pending in this state may in the discretion of the governor be

surrendered on demand of the executive authority of another state

or be held until criminal proceeding pending in this state has been

determined: Provided, however, That any person who was in custody

upon any execution, or upon process in any suit, at the time of

being apprehended for a crime charged to have been committed

without the jurisdiction of this state, may not be delivered up

without the consent of the plaintiff in an execution or suit, until

the amount of the execution has been paid, or until the person

shall be otherwise discharged from the execution or process.

(k) The guilt or innocence of the accused as to the crime for

which he or she is charged may not be inquired into by the governor

or in any proceeding after the demand for extradition accompanied

by a charge of crime in legal form as provided in this article has

been presented to the governor, except as it may be involved in

identifying the person held as the person charged with the crime.





Note: WV Code updated with legislation passed through the 2015 Regular Session

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