Introduced Version
House Bill 2500 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2500
(By Delegates Sobonya and Border)
[Introduced February 15, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §17C-5-2 of the Code of West Virginia,
1931, as amended, relating to increasing the penalty for
driving under the influence causing death.
Be it enacted by the Legislature of West Virginia:
That §17C-5-2 of the Code of West Virginia, 1931, 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 he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the 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 the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
five years nor more than ten fifteen years and shall be fined not
less than $1,000 nor more than $3,000.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than ninety days nor more than one year and shall be
fined not less than $500 nor more than $1,000.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
day nor more than one year, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than $200 nor more than $1,000.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
except as provided in section two-b of this article, shall be
confined in jail for up to six months and shall be fined not less
than $100 nor more than $500. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than six months, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than $200 nor more than $1,000.
A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon
arrest for the subject offense.
(f) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, which jail term is to include actual confinement of not
less than twenty-four hours, and shall be fined not less than $100
nor more than $500. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than $100 nor more than $500.
(h) Any person who knowingly permits his or her 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 is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than six months and shall be fined not less than
$100 nor more than $500.
(i) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $25 nor more than $100. For a second or subsequent offense
under this subsection, the person is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail for twenty-four
hours and shall be fined not less than $100 nor more than $500. A
person who is charged with a first offense under the provisions of
this subsection may move for a continuance of the proceedings, from
time to time, to allow the person to participate in the Motor
Vehicle Alcohol Test and Lock Program as provided in section three-
a, article five-a of this chapter. Upon successful completion of
the program, the court shall dismiss the charge against the person
and expunge the person's record as it relates to the alleged
offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the
alleged offense. A motion for a continuance under this subsection
may not be construed as an admission or be used as evidence. A
person arrested and charged with an offense under the provisions of
this subsection or subsection (a), (b), (c), (d), (e), (f), (g) or
(h) of this section may not also be charged with an offense under
this subsection arising out of the same transaction or occurrence.
(j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person while driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than twelve months, which jail
term is to include actual confinement of not less than forty-eight
hours and shall be fined not less than $200 nor more than $1,000.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (I) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for not less than six months nor
more than one year and the court may, in its discretion, impose a
fine of not less than $1,000 nor more than $3,000.
(l) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (I) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years and the court may, in its discretion, impose a fine of not
less than $3,000 nor more than $5,000.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
events shall be regarded as offenses under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) 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 an offense
described in subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding;
and,
(3) Any period of conditional probation imposed pursuant to
section two-b of this article for violation of subsection (d) of
this article, which violation occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) 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 period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges for
the alleged previous offense. In that 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, or
the person has previously had a period of conditional probation
imposed pursuant to section two-b of this article.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (g) or (h)
of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against
any charge of violating subsection (a), (b), (c), (d), (e), (f), (g)
or (h) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of this
code.
(q) The sentences provided in this section upon conviction for
a violation of this article are mandatory and are not subject to
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 for
a first offense under this section: Provided, further however, That
the court may impose a term of conditional probation pursuant to
section two-b of this article to persons adjudicated thereunder.
An order for home detention by the court pursuant to the provisions
of article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section for
a first or subsequent offense: Provided, however further, That for
any period of home incarceration ordered for a person convicted of
second offense under this section, electronic monitoring shall be
required for no fewer than five days of the total period of home
confinement ordered and the offender may not leave home for those
five days notwithstanding the provisions of section five, article
eleven-b, chapter sixty-two of this code: And provided further, That for any period of home incarceration ordered for a person convicted
of a third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the total
period of home confinement ordered and the offender may not leave
home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
NOTE:
The purpose of this bill is to increase the penalty for
driving under the influence causing death from two to ten years to
five to fifteen years in prison.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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