H. B. 2132
(By Delegate Huffman)
[Introduced February 16, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article five, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to removing home
confinement and work release as an alternative to
imprisonment for convictions of driving under the influence
of alcohol, controlled substances or drugs.
Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter seventeen-c of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes the death of any
person within one year next following such act or failure; and
(3) Commits such act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to such
death, shall be guilty of a felony, and, upon conviction thereof,
shall be imprisoned in the penitentiary for not less than one nor
more than ten years and shall be fined not less than one thousand
dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of tenhundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes the death of any
person within one year next following such act or failure, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be imprisoned in the county jail for not less than ninety days
nor more than one year and shall be fined not less than five
hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes bodily injury to
any person other than himself, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be imprisoned in the county
jail for not less than one day nor more than one year, which jail
term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars
nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for not less than
one day nor more than six months, which jail term shall include
actual confinement of not less than twenty-four hours, and shall
be fined not less than one hundred dollars nor more than five
hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in
this state, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be imprisoned in the county jail for
not less than one day nor more than six months, which jail term
shall include actual confinement of not less than twenty-four
hours, and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his vehicle to be driven in this state
by any other person who is:
(A) Under the influence of alcohol, or
(B) Under the influence of any controlled substance, or
(C) Under the influence of any other drug , or
(D) Under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) Has an alcohol concentration in his blood of ten
hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for not more than
six months and shall be fined not less than one hundred dollars
nor more than five hundred dollars.
(g) Any person who:
Knowingly permits his vehicle to be driven in this state by
any other person who is an habitual user of narcotic drugs or
amphetamine or any derivative thereof, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be imprisoned in
the county jail for not more than six months and shall be fined
not less than one hundred dollars nor more than five hundred
dollars.
(h) A person violating any provision of subsection (b), (c),
(d), (e), (f) or (g) of this section shall, for the second
offense under this section, be guilty of a misdemeanor, and, upon
conviction thereof, shall be imprisoned in the county jail for aperiod of not less than six months nor more than one year, and
the court may, in its discretion, impose a fine of not less than
one thousand dollars nor more than three thousand dollars.
(i) A person violating any provision of subsection (b), (c),
(d), (e), (f) or (g) of this section shall, for the third or any
subsequent offense under this section, be guilty of a felony,
and, upon conviction thereof, shall be imprisoned in the
penitentiary for not less than one nor more than three years, and
the court may, in its discretion, impose a fine of not less than
three thousand dollars nor more than five thousand dollars.
(j) For purposes of subsections (h) and (i) of this section
relating to second, third and subsequent offenses, the following
types of convictions shall be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsections (a),
(b), (c), (d), (e) or (f) of the prior enactment of this section
for an offense which occurred on or after the first day of
September, one thousand nine hundred eighty-one, and prior to the
effective date of this section;
(2) Any conviction under the provisions of subsection (a) or
(b) of the prior enactment of this section for an offense which
occurred within a period of five years immediately preceding the
first day of September, one thousand nine hundred eighty-one;
(3) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as anoffense described in this section, which offense occurred after
June tenth, one thousand nine hundred eighty-three; and
(4) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this
section, if the person has been previously arrested for or
charged with a violation of this section which is alleged to have
occurred within the applicable time periods for prior offenses,
notwithstanding the fact that there has not been a final
adjudication of the charges for the alleged previous offense. In
such case, the warrant or indictment or information must set
forth the date, location and particulars of the previous offense
or offenses. No person may be convicted of a second or
subsequent offense under this section unless the conviction for
the previous offense has become final.
(k) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any
person permitted to drive as described under subsection (f) or
(g) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug shall not constitute a
defense against any charge of violating subsection (a), (b), (c),
(d), (e), (f) or (g) of this section.
(l) For purposes of this section, the term "controlled
substance" shall have the meaning ascribed to it in chapter
sixty-a of this code.
(m) The sentences provided herein upon conviction for a
violation of this article are mandatory and shall not be subjectto suspension or probation.
Provided, That the court may apply
the provisions of article eleven-a, chapter sixty-two of this
code to a person sentenced or committed to a term of one year or
less.
(n) T
he reenactment of this section in the regular session
of the Legislature during the year one thousand nine hundred
eighty-three, shall not in any way add to or subtract from the
elements of the offenses set forth herein and earlier defined in
the prior enactment of this section. No alternate form of
sentencing including work release and home confinement may be
substituted for imprisonment.
NOTE: The purpose of this bill is to eliminate work release
and home confinement as alternatives to imprisonment for
convictions involving driving under the influence of alcohol,
controlled substances or drugs.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.