Introduced Version
Senate Bill 181 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 181
(By Senators Kessler (Mr. President) and M. Hall,
By Request of the Executive)
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[Introduced February 15, 2013; referred to the Committee on
Transportation and Infrastructure; and then to the Committee on
the Judiciary .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §17C-1-67; and to
amend and reenact §17C-5-4 and §17C-5-6 of said code, all
relating to improving enforcement of drugged driving offenses;
defining "drug"; providing implied consent to test for
controlled substances or drugs; including controlled
substances and drugs in blood test administration procedures;
and making other clerical changes.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §17C-1-67; and that
§17C-5-4 and §17C-5-6 of said code be amended and reenacted, all to
read as follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17C-1-67. Drug.
"Drug" means any substance, other than alcohol, that when
taken into the human body can impair the ability of a person to
operate a vehicle safely and in compliance with traffic regulations
and the laws of the road.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied consent to test; administration at direction of
law-enforcement officer; designation of type of
test; definition of law-enforcement officer.
(a) Any person who drives a motor vehicle in this state is
considered to have given his or her consent by the operation of the
motor vehicle to a preliminary breath analysis and a secondary
chemical test of either his or her blood, breath, or urine for the
purposes of determining the alcoholic content and the controlled
substance and drug content of his or her blood.
(b) A preliminary breath analysis may be administered in
accordance with the provisions of section five of this article
whenever a law-enforcement officer has reasonable cause to believe
a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which
has the same elements as an offense described in section two of this article.
(c) A secondary test of blood, breath, or urine is incidental
to a lawful arrest and is to be administered at the direction of
the arresting law-enforcement officer having reasonable grounds to
believe the person has committed an offense prohibited by section
two of this article or by an ordinance of a municipality of this
state which has the same elements as an offense described in
section two of this article.
(d) The law-enforcement agency that employs the
law-enforcement officer shall designate which type of secondary
test is to be administered: Provided, That if the test designated
is a blood test and the person arrested refuses to submit to the
blood test, then the law-enforcement officer making the arrest
shall designate either a breath or urine test to be administered.
Notwithstanding the provisions of section seven of this article,
the refusal to submit to a blood test only may not result in the
revocation of the arrested person's license to operate a motor
vehicle in this state.
(e) Any person to whom a preliminary breath test is
administered who is then arrested shall be given a written
statement advising him or her that his or her refusal to submit to
the secondary chemical test pursuant to subsection (d) of this
section will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least one
year and up to life.
(f) Any law-enforcement officer who has been properly trained
in the administration of any secondary chemical test authorized by
this article, including, but not limited to, certification by the
Bureau for Public Health in the operation of any equipment required
for the collection and analysis of a breath sample, may conduct the
test at any location in the county wherein the arrest is made:
Provided, That the law-enforcement officer may conduct the test at
the nearest available properly functioning secondary chemical
testing device located outside the county in which the arrest was
made, if: (i) There is no properly functioning secondary chemical
testing device located within the county the arrest was made; or
(ii) there is no magistrate available within the county the arrest
was made for the arraignment of the person arrested. A
law-enforcement officer who is directing that a secondary chemical
test be conducted has the authority to transport the person
arrested to where the secondary chemical testing device is located.
(g) If the arresting officer lacks proper training in the
administration of a secondary chemical test, then any other
law-enforcement officer who has received training in the
administration of the secondary chemical test to be administered
may, upon the request of the arresting law-enforcement officer and in his or her presence, conduct the secondary test. The results of
a test conducted pursuant to this subsection may be used in
evidence to the same extent and in the same manner as if the test
had been conducted by the arresting law-enforcement officer.
(h) Only the person actually administering or conducting a
test conducted pursuant to this article is competent to testify as
to the results and the veracity of the test.
(i) For the purpose of this article, the term "law-enforcement
officer" or "police officer" means: (1) Any member of the West
Virginia State Police; (2) any sheriff and any deputy sheriff of
any county; (3) any member of a police department in any
municipality as defined in section two, article one, chapter eight
of this code; (4) any natural resources police officer of the
Division of Natural Resources; and (5) any special police officer
appointed by the Governor pursuant to the provisions of section
forty-one, article three, chapter sixty-one of this code who has
completed the course of instruction at a law-enforcement training
academy as provided for under the provisions of section nine,
article twenty-nine, chapter thirty of this code.
(j) A law-enforcement officer who has reasonable cause to
believe that person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to
the operation of a motorboat, jet ski or other motorized vessel, shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and the
secondary chemical test of the accused person's blood, breath, or
urine for the purpose of determining the alcoholic content and the
controlled substance and drug content of
his or her blood.
§17C-5-6. How blood test administered; additional test at option
of person tested; use of test results; certain
immunity from liability incident to administering
test.
Only a doctor of medicine or osteopathy, or registered nurse,
or trained medical technician at the place of his or her employment,
acting at the request and direction of the law-enforcement officer,
may withdraw blood for the purpose of determining the alcoholic
content thereof and the controlled substance and drug content
thereof. These limitations shall not apply to the taking of a
breath test or a urine specimen. In withdrawing blood for the
purpose of determining the alcoholic content thereof and the
controlled substance and drug content thereof
, only a previously
unused and sterile needle and sterile vessel may be utilized and the
withdrawal shall otherwise be in strict accord with accepted medical
practices. A nonalcoholic antiseptic shall be used for cleansing
the skin prior to venapuncture. The person tested may, at his or
her own expense, have a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his
or her employment, of his or her own choosing, administer a chemical
test in addition to the test administered at the direction of the
law-enforcement officer. Upon the request of the person who is
tested, full information concerning the test taken at the direction
of the law-enforcement officer shall be made available to him or
her. No person who administers any such test upon the request of
a law-enforcement officer as herein defined, no hospital in or with
which such person is employed or is otherwise associated or in which
such test is administered, and no other person, firm or corporation
by whom or with which such person is employed or is in any way
associated, shall be in anywise any way criminally liable for the
administration of such test, or civilly liable in damages to the
person tested unless for gross negligence or willful or wanton
injury.
NOTE: The purpose of this bill is to improve enforcement of
laws against drugged driving. The bill defines "drug" and provides
that implied consent
applies to testing for controlled substances
or drugs upon arrest
of a driver in this state.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-1-67 is new; therefore, underscoring and strike-throughs
are omitted.