HB 4353 Text

ENROLLED
H. B. 4353

(By Delegates Staton, Amores, Craig and Ellem)
[Passed March 11, 2006; in effect ninety days from passage.]

AN ACT to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17C-5A-1 of said code, all relating to criminal and administrative procedures related to persons charged with driving under the influence of alcohol, controlled substance or drugs; providing for enhanced criminal penalties for second and subsequent offense of driving under the influence of alcohol, controlled substance or drugs with a minor under the age of sixteen in the vehicle; relating to initiation of administrative procedures; requiring law enforcement officers have a valid complaint, signed by a magistrate or municipal judge, with a showing of probable cause before reporting said offense to the commissioner of the department of motor vehicles; and authorizing notice to Division of Motor Vehicles within forty-eight hours to be sent of complaint issuing .
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 §17C-5A-1 of said code be
amended and reenacted, all 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; or

(B) Is under the influence of any controlled substance; or

(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

(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
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 he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(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) When so 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 five hundred dollars nor more than
one thousand dollars.

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(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) When so 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 two hundred dollars nor more
than one thousand dollars.

(d) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(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;

(2) 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 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, 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 one hundred dollars nor more than five
hundred dollars.

(f) 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; or

(B) Is under the influence of any controlled substance; or

(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;

(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 one hundred dollars nor more than five
hundred dollars.

(g) 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 one hundred dollars nor more than five hundred
dollars.

(h) 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 twenty-five dollars nor
more than one hundred dollars. 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 one
hundred dollars nor more than five hundred dollars. 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 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 subsection (a), (b), (c), (d), (e), (f), (g) or
(I) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.

(i) Any person who:

(1) Drives a vehicle in this state while he or she:

(A) Is under the influence of alcohol; or

(B) Is under the influence of any controlled substance; or

(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 when so 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 two
hundred dollars nor more than one thousand dollars.

(j) 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 one thousand dollars
nor more than three thousand dollars: Provided, That if
a person violates subsection (I) for the second offense under
this section, and such person has previously been convicted of
violation of subsection (I), then such person shall be 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 three thousand dollars nor more than five
thousand dollars.

(k) 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 three thousand dollars nor more than five thousand
dollars: Provided, That if a person violates subsection (I) for
the third or subsequent offense under this section, and such
person has previously been convicted of violation of
subsection(I), then such person shall be guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than three nor more than ten
years, and the court may, in its discretion, impose a fine of
not less than three thousand dollars nor more than five thousand
dollars.

(l) For purposes of subsections (j) and (k) 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) or (f) 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) or
(g) of this section, which offense occurred within the ten-year
period immediately preceding the date of arrest in the current
proceeding.

(m) 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.

(n) 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 does not constitute a
defense against any charge of violating subsection (a), (b),
(c), (d), (e), (f) or (g) of this section.

(o) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.

(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be 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 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.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
17C-5A-1. Implied consent to administrative procedure; revocation for driving under the influence of alcohol, controlled substances or drugs or refusal to submit to secondary chemical test.

(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation
thereof, subject to the provisions of this article, to the
procedure set forth in this article for the determination of
whether his or her license to operate a motor vehicle in this
state should be revoked because he or she did drive a motor
vehicle while under the influence of alcohol, controlled
substances or drugs, or combined influence of alcohol or
controlled substances or drugs, or did drive a motor vehicle
while having an alcohol concentration in his or her blood of
eight hundredths of one percent or more, by weight, or did
refuse to submit to any designated secondary chemical test, or
did drive a motor vehicle while under the age of twenty-one
years with 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.

(b) Any law-enforcement officer arresting a person for an
offense described in section two, article five of this chapter
or for an offense described in a municipal ordinance which has
the same elements as an offense described in said section shall
report to the commissioner of the division of motor vehicles by
written statement: Provided, That the officer shall
have a valid criminal complaint, signed by a magistrate or
municipal judge, with a determination of probable cause, before
reporting said offense to the commissioner of the department of
motor vehicles. The arresting officer shall, within forty-eight
hours of the issuance of the criminal complaint provide a
statement to the commissioner reflecting the name and address of
the subject of the criminal complaint. The report shall include
the specific offense with which the person is charged and, if
applicable, a copy of the results of any secondary tests of
blood, breath or urine. The signing of the statement required to
be signed by this subsection shall constitute an oath or
affirmation by the person signing the statement that the
statements contained therein are true and that any copy filed is
a true copy. The statement shall contain upon its face a warning
to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing,
material or not material, is false swearing and is a
misdemeanor.

(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of
this section, the commissioner shall determine that a person was
arrested for an offense described in section two, article five
of this chapter or for an offense described in a municipal
ordinance which has the same elements as an offense described in
said section, and that the results of any secondary test or
tests indicate that at the time the test or tests were
administered the person had, in his or her blood, an alcohol
concentration of eight hundredths of one percent or more, by
weight, or at the time the person was arrested he or she was
under the influence of alcohol, controlled substances or drugs,
the commissioner shall make and enter an order revoking the
person's license to operate a motor vehicle in this state. If
the results of the tests indicate that at the time the test or
tests were administered the person was under the age of twenty-
one years and had 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, the
commissioner shall make and enter an order suspending the
person's license to operate a motor vehicle in this state. A
copy of the order shall be forwarded to the person by registered
or certified mail, return receipt requested, and shall contain
the reasons for the revocation or suspension and describe the
applicable revocation or suspension periods provided for in
section two of this article. No revocation or suspension shall
become effective until ten days after receipt of a copy of the
order.

(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this
chapter who has reasonable cause to believe that the child, at
the time of driving the motor vehicle, had an alcohol
concentration in his or her blood of two hundredths of one
percent or more, by weight, or that the act of the child in
driving the motor vehicle was such that it would provide grounds
for arrest for an offense defined under the provisions of
section two of said article if the child were an adult, shall
report to the commissioner of the division of motor vehicles by
written statement within forty-eight hours the name and address
of the child.

(e) If applicable, the report shall include a description of
the specific offense with which the child could have been
charged if the child were an adult, and a copy of the results of
any secondary tests of blood, breath or urine. The signing of
the statement required to be signed by this subsection shall
constitute an oath or affirmation by the person signing such
statement that the statements contained therein are true and
that any copy filed is a true copy. Such statement shall
contain upon its face a warning to the officer signing that to
willfully sign a statement containing false information
concerning any matter or thing, material or not material, is
false swearing and is a misdemeanor. (f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this
section, if the commissioner determines that the results of the
tests indicate that at the time the test or tests were
administered the child had, in his or her blood, an alcohol
concentration of two hundredths of one percent or more, by
weight, but also determines that the act of the child in driving
the motor vehicle was not such that it would provide grounds for
arrest for an offense defined under the provisions of subsection
(a), (b), (c), (d), (e), (f) or (g), section two, article five
of this chapter if the child were an adult, the commissioner
shall make and enter an order suspending the child's license to
operate a motor vehicle in this state. If the commissioner
determines that the act of the child in driving the motor
vehicle was such that it would provide grounds for arrest for an
offense defined under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g), section two, article five of this
chapter if the child were an adult, the commissioner shall make
and enter an order revoking the child's license to operate a
motor vehicle in this state. A copy of such order shall be
forwarded to the child by registered or certified mail, return
receipt requested, and shall contain the reasons for the
suspension or revocation and describe the applicable suspension
or revocation periods provided for in section two of this
article. No suspension or revocation shall become effective
until ten days after receipt of a copy of such order.

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