COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 242
(By Senators Kessler, Foster, White and Plymale)
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[Originating in the Committee on the Judiciary;
reported April 1, 2009.]
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A BILL to amend and reenact §17C-5-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-11-22 of said
code, all relating to driving under the influence of alcohol
or drugs generally; encouraging participation in the interlock
program for person awaiting adjudication; and adding DUI
offenses to the jurisdiction of drug courts.
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; and that §61-11-22 of said code be
amended and reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
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
years nor more than ten 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,
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
types of convictions are to be regarded as convictions 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.
(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.
(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. An order for home detention by
the court pursuant to the provisions of article eleven-b,
of said
chapter
sixty-two of this code may be used as an alternative
sentence to any period of incarceration required by this section
for a first or subsequent offense:
Provided, however, 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:
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.
(r) Notwithstanding any provision of this code to the
contrary, any person charged for a first offense under the
provisions of this section, or section seven, article five of this
chapter who agrees at the time of his or her arraignment to
register for the interlock program provided for in section three-a,
article five-a of this chapter shall have six months of
incarceration suspended from his or her sentence. The time spent
on the interlock program between the person's arraignment and his
or her adjudication shall be subtracted from any period of license revocation that may be ordered.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug and
alcohol court programs.
(a) A prosecuting attorney of any county of this state or a
person acting as a special prosecutor may enter into a pretrial
diversion agreement with a person under investigation or charged
with an offense against the State of West Virginia when he or she
considers it to be in the interests of justice. The agreement is
to be in writing and is to be executed in the presence of the
person's attorney, unless the person has executed a waiver of
counsel.
(b) Any agreement entered into pursuant to the provisions of
subsection (a) of this section may not exceed twenty-four months in
duration. The duration of the agreement must be specified in the
agreement. The terms of any agreement entered into pursuant to the
provisions of this section may include conditions similar to those
set forth in section nine, article twelve, chapter sixty-two of
this code relating to conditions of probation. The agreement may
require supervision by a probation officer of the circuit court,
with the consent of the court. An agreement entered into pursuant
to this section must include a provision that the applicable
statute of limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial
diversion with a prosecuting attorney and who has successfully
complied with the terms of the agreement is not subject to
prosecution for the offense or offenses described in the agreement or for the underlying conduct or transaction constituting the
offense or offenses described in the agreement, unless the
agreement includes a provision that upon compliance the person
agrees to plead guilty or nolo contendere to a specific related
offense, with or without a specific sentencing recommendation by
the prosecuting attorney.
(d) No person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code may
participate in a pretrial diversion program. No person charged
with a violation of the provisions of section twenty-eight, article
two of this chapter may participate in a pretrial diversion program
unless the program is part of a community corrections program
approved pursuant to the provisions of article eleven-c, chapter
sixty-two of this code. No person indicted for a felony crime of
violence against the person where the alleged victim is a family or
household member as defined in section two hundred three, article
twenty-seven, chapter forty-eight of this code or indicted for a
violation of the provisions of section three, four or seven,
article eight-b of this chapter is eligible to participate in a
pretrial diversion program. No defendant charged with a violation
of the provisions of section twenty-eight, article two of this
chapter or subsection (b) or (c), section nine of said article
where the alleged victim is a family or household member is
eligible for pretrial diversion programs if he or she has a prior
conviction for the offense charged or if he or she has previously
been granted a period of pretrial diversion pursuant to this
section for the offense charged. Notwithstanding any provision of
this code to the contrary, defendants charged with violations of the provisions of section twenty-eight, article two of this chapter
or the provisions of subsection (b) or (c), section nine, article
two of said chapter where the alleged victim is a family or
household member as defined by the provisions of section two
hundred three, article twenty-seven, chapter forty-eight of this
code are ineligible for participation in a pretrial diversion
program before July 1, 2002, and before the community corrections
subcommittee of the Governor's Committee on Crime, Delinquency and
Correction established pursuant to the provisions of section two,
article eleven-c, chapter sixty-two of this code, in consultation
with the working group of the subcommittee, has approved guidelines
for a safe and effective program for diverting defendants charged
with domestic violence.
(e) The provisions of section twenty-five of this article are
inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of
section twenty-eight, article two, chapter sixty-one of this code.
The community corrections subcommittee of the Governor's Committee
on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code shall, upon approving any program of pretrial diversion
for persons charged with violations of the provisions of section
twenty-eight, article two of this chapter, establish and maintain
a central registry of the participants in the programs which may be
accessed by judicial officers and court personnel.
(f) (1) The chief judge of a circuit court in cooperation with
the prosecuting attorneys, the public defenders, if any, in the
circuit, and the community criminal justice board if the program is to be operated pursuant to the provisions of article eleven-c,
chapter sixty-two of this code may establish and operate a drug
and
alcohol court program as a diversion program or an alternative
sentencing program, or both, to address offenses that stem from
substance
or alcohol use or abuse.
(2) For the purposes of this section, "drug
and alcohol court
program" means a program designed to achieve a reduction in
recidivism and substance
and alcohol abuse among nonviolent,
substance
or alcohol abusing offenders by increasing their
likelihood for successful rehabilitation through early, continuous,
and intense supervised treatment, mandatory periodic drug
or
alcohol testing
as applicable and the use of appropriate sanctions
and other rehabilitation services.
(3) A drug
and alcohol court program is to provide, at a
minimum:
(A) For successful completion of a diversion or plea agreement
in lieu of incarceration;
(B) Access by all participating parties of a case to
information on the offender's progress;
(C) Vigilant supervision and monitoring procedures;
(D) Random substance
abuse or alcohol testing,
as applicable;
(E) Provisions for dealing with noncompliance, modification of
the treatment plan and revocation proceedings;
(F) For its operation only when appropriate facilities and
outpatient services are available; and
(G) For payment of court costs, treatment costs, supervision
fees and program user fees by the offender, unless payment of the
costs and fees would impose an undue hardship.
(4) An offender is eligible for a drug
and alcohol court
program only if:
(A) The underlying offense does not involve a felony crime of
violence, unless there is a specific treatment program available
designed to address violent offenders;
(B) The offender has no prior felony conviction in this state
or another state for a felony crime of violence; and
(C) The offender admits to having a substance
, alcohol, or
both substance and alcohol abuse addiction.
(5) The court may provide additional eligibility criteria it
considers appropriate.