H. B. 4326
(By Delegates Fleischauer, Schadler, Azinger,
Brown, Hamilton, Sobonya and Hatfield)
[Introduced February 3, 2010; 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which such blood is withdrawn and tested under the provisions of this section shall be immune from all civil and criminal liability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