H. B. 2428
(By Delegates Fleischauer, Azinger, Brown,
Hamilton, Sobonya and Hatfield)
[Introduced January 12, 2011; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §17C-5B-1 of the Code of West Virginia, 1931, as amended, relating to requiring a preliminary breath analysis for the purpose of determining the blood alcohol content of a surviving driver.
Be it enacted by the Legislature of West Virginia:
That §17C-5B-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5B. POSTMORTEM TESTS FOR ALCOHOL IN PERSONS KILLED IN MOTOR VEHICLE ACCIDENTS.
§17C-5B-1. Blood test for alcohol in drivers and adult pedestrians killed in motor vehicle accidents; time limit for conducting test; who may conduct test; express consent to withdraw blood from dead body granted; granting civil and criminal immunity to person conducting test; fee for test.
(a) When any motor vehicle driver or adult pedestrian dies in a motor vehicle accident in this state or dies within four hours after having been involved in a motor vehicle accident in this state, the physician in attendance, or law-enforcement officer having knowledge of such death, or the funeral director, or any other person present when such death occurred, shall immediately report such death to the medical examiner of the county in which such death occurred. Upon receipt of such notice, the medical examiner shall take charge of the dead body and shall conduct, or shall cause to be conducted, within twelve hours after receiving such notice and before the dead body is embalmed, a blood test to determine the presence and percentage concentration of alcohol in the blood of such dead body.
(b) The blood test conducted on a dead body as required under this section shall be conducted only by a person qualified to conduct an autopsy under article twelve, chapter sixty-one of this code or by a doctor of medicine, doctor of osteopathy, registered nurse, trained medical technician at the place of his or her employment or county coroner who is deemed qualified by the office of medical examinations to conduct such blood test.
(c) Any person who is to conduct a blood test under the provisions of this section is hereby expressly authorized to withdraw blood from the dead body in the quantity necessary to conduct such blood test. Any person withdrawing blood from the dead body and testing such blood and any hospital or clinic in which such blood is withdrawn and tested under the provisions of this section shall be immune from all civil and criminal liability which might otherwise be imposed.
(d) Any person conducting a blood test under the provisions of this section shall receive a standardized fee in the amount determined by the office of medical examinations, which fee shall be paid from funds appropriated to the office of medical examinations.
(e) Nothing contained in this section shall be construed to preclude the taking of a blood test by any other person having the right to take any such test or cause such test to be taken while the medical examiner has charge of the body.
(f) In addition to the other provisions of this section, a law-enforcement officer investigating an automobile accident involving the death of any person shall immediately require any surviving driver to submit to a preliminary breath analysis for the purpose of determining such person's blood alcohol content. Such breath analysis must be administered as soon as possible after the law-enforcement officer has a reasonable belief that the person had been driving when his or her automobile was involved in an accident causing death.
NOTE: The purpose of this bill is to require a preliminary breath analysis for the purpose of determining the blood alcohol content of a surviving driver.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.