Senate Bill No. 27

(By Senators Burdette, Mr. President, and Boley,

By Request of the Executive)
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[Introduced January 14, 1994; referred to the Committee
on the Judiciary.]

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A BILL to amend and reenact section three, article four, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section two, article five, chapter seventeen-c of said code; to amend and reenact section fourteen, article one, chapter seventeen-e of said code; and to amend and reenact section ten, article seven, chapter sixty of said code, all relating to driving under the influence of alcohol, controlled substances or drugs; making it unlawful for anyone over the age of twenty-one years to drive a motor vehicle with an alcohol concentration of eight hundredths of one percent or more, by weight, in the person's blood and making it unlawful for anyone under the age of twenty-one to drive a motor vehicle with an alcohol concentration of two hundredths of one percent or more, by weight, in the person's blood; providing penalties for violations; making these provisions applicable to driving under the influence
of alcohol, controlled substances or drugs when the person's driving privilege has been suspended or revoked; and authorizing the superintendent of the division of public safety and his or her authorized agents to enter private clubs to enforce laws related to the consumption of intoxicating liquors.
Be it enacted by the Legislature of West Virginia:
That section three, article four, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section two, article five, chapter seventeen-c of said code be amended and reenacted; that section fourteen, article one, chapter seventeen-e of said code be amended and reenacted; and that section ten, article seven, chapter sixty of said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.

§17B-4-3. Driving while license suspended or revoked; driving while license revoked for driving under the influence of alcohol, controlled substances or drugs, or while having alcoholic concentration in the blood of eight hundredths of one percent or more, by weight, or for refusing to take secondary chemical test of blood alcohol contents.

(a) Except as otherwise provided in subsection (b) of this section, any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do hasbeen lawfully suspended or revoked shall, for the first offense, be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for forty-eight hours and, in addition to such mandatory jail sentence, shall be fined not less than fifty dollars nor more than five hundred dollars; for the second offense, such person shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail for a period of ten days and, in addition to such mandatory jail sentence, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the third or any subsequent offense, such person shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for six months and, in addition to such mandatory jail sentence, shall be fined not less than one hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do has been lawfully revoked for driving under the influence of alcohol, controlled substances or other drugs, or while having an alcoholic concentration in his blood of ten eight hundredths of one percent or more, by weight, if he is twenty-one years old or older, or while having an alcoholic concentration in his blood of two hundredths of one percent or more, by weight, if he is less than twenty-one years old, or for refusing to take a secondary chemical test of blood alcohol content shall, for the first offense, be guilty of a misdemeanor, and, upon convictionthereof, shall be imprisoned in the county jail for six months and in addition to such mandatory jail sentence, shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, such person shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in the county jail for a period of one year and, in addition to such mandatory jail sentence, shall be fined not less than one thousand dollars nor more than three thousand dollars; for the third or any subsequent offense, such person shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one year nor more than three years and, in addition to such mandatory jail sentence, shall be fined not less than three thousand dollars nor more than five thousand dollars.
(c) The department upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while the license of such person was lawfully revoked shall extend the period of such suspension for an additional like period and if the conviction was upon a charge of driving while a license was revoked lawfully the department shall not issue a new license for an additional period of one year from and after the date such person would otherwise have been entitled to apply for a new license.
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:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance, or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug, or
(E) He is twenty-one years old or older and he has an alcohol concentration in his blood of ten eight hundredths of one percent or more, by weight, and or
(F) He is less than twenty-one years old and he has an alcohol concentration in his blood of two 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 such vehicle, which act or failure proximately causes the death of any person within one year next following such act or failure; and
(3) Commits such 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 such death, shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary 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:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance, or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug, or
(E) He is twenty-one years old or older and he has an alcohol concentration in his blood of ten eight hundredths of one percent or more, by weight, and or
(F) He is less than twenty-one years old and he has an alcohol concentration in his blood of two 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 such vehicle, which act or failure proximately causes the death of any person within one year next following such act or failure, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county 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.
(c) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug, or
(E) He is twenty-one years old or older and he has an alcohol concentration in his blood of ten eight hundredths of one percent or more, by weight, and or
(F) He is less than twenty-one years old and he has an alcohol concentration in his blood of two 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 such vehicle, which act or failure proximately causes bodily injury to any person other than himself, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for not less than one day nor more than one year, which jail term shall 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:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance, or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and anycontrolled substance or any other drug, or
(E) He is twenty-one years old or older and he has an alcohol concentration in his blood of ten eight hundredths of one percent or more, by weight, and or
(F) He is less than twenty-one years old and he has an alcohol concentration in his blood of two hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for not less than one day nor more than six months, which jail term shall 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, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for not less than one day nor more than six months, which jail term shall 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 vehicle to be driven in this state by any other person who is:
(A) Under the influence of alcohol, or
(B) Under the influence of any controlled substance, or
(C) Under the influence of any other drug, or
(D) Under the combined influence of alcohol and any controlled substance or any other drug, or
(E) Is twenty-one years old or older and has an alcohol concentration in his blood of ten eight hundredths of one percent or more, by weight, and or
(F) Is less than twenty-one years old and has an alcohol concentration in his blood of two hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county 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 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, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) A person violating any provision of subsection (b), (c), (d), (e), (f) or (g) of this section shall, for the second offense under this section, be guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in the county jail for a period of not less than six months nor more than one year, andthe court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
(i) A person violating any provision of subsection (b), (c), (d), (e), (f) or (g) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary 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.
(j) For purposes of subsections (h) and (i) of this section relating to second, third and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of the prior enactment of this section for an offense which occurred on or after the first day of September, one thousand nine hundred eighty-one, and prior to the initial effective date of this section;
(2) Any conviction under the provisions of subsection (a) or (b) of the prior initial enactment of this section for an offense which occurred within a period of five years immediately preceding the first day of September, one thousand nine hundred eighty-one;
(3) 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 anoffense described in this section, which offense occurred after June tenth, one thousand nine hundred eighty-three; and
(4) 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 periods for prior offenses, not withstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In such 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.
(k) 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 shall not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(l) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.
(m) The sentences provided herein upon conviction for a violation of this article are mandatory and shall not be subjectto 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.
(n) The reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred eighty-three, and the reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred ninety-four, shall not in any way add to or subtract from the elements of the offenses set forth herein and earlier defined in the prior enactments of this section.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.

ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.

§17E-1-14. Commercial drivers prohibited from operating with any alcohol in system; driving with blood alcohol concentration of four hundredths of one percent or more; refusal of preliminary breath test to determine alcohol content of blood; criminal penalties.

(a) In addition to any other penalties provided by this code, any person who:
(1) Drives, operates or is in physical control of a commercial motor vehicle while having any measurable alcohol in his or her system; or
(2) Is twenty-one years of age or older and drives, operates, or is in physical control of a commercial motor vehicle while having an alcohol concentration of his or her blood, breathor urine of four hundredths of one percent or more, by weight; or
(3) Is less than twenty-one years of age and drives, operates, or is in physical control of a commercial motor vehicle while having an alcohol concentration of his or her blood, breath or urine of two hundredths of one percent or more, by weight;
Shall be subject, upon conviction, to the penalties set forth in subsection (b) of this section.
(b) Upon conviction of an offense described in subsection (a) of this section:
(1) For a violation of subdivision (1) thereof, such person shall be fined not more than one hundred dollars; for a second offense of subdivision (1) thereof, such person shall be fined not less than one hundred dollars nor more than three hundred dollars or confined in the county jail for a period not to exceed thirty days, and, for a third or any subsequent offense, shall be fined not less than five hundred dollars nor more than one thousand dollars and shall be confined in the county jail for a period of time of not less than twenty-four hours and not more than thirty days.
(2) For a violation of subdivision (2) thereof, such person shall be imprisoned in the county jail for not less than twenty- four hours nor more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person violating the provisions of subdivision (2) thereof shall be, for the second or any subsequent offense, guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned inthe county jail for a period of 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.
(c) A person who violates the provisions of subdivision (2), subsection (a) of this section shall be taken immediately before a magistrate or court within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense.
(d) In addition to any other penalties provided by this code, a person who drives, operates or is in physical control of a commercial motor vehicle having any measurable alcohol in such person's system or who refuses to take a preliminary breath test to determine such person's blood alcohol content as provided by section fifteen of this article must be placed out of service for twenty-four hours.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 7. LICENSES TO PRIVATE CLUBS.

§60-7-10. Duties and powers of commissioner; authority of superintendent of division of public safety.

The commissioner is hereby authorized:
(a) To enforce the provisions of this article.
(b) To enter the premises of any licensee at reasonable times for the purpose of inspecting the same, and determining the compliance of said licensee with the provisions of this article and any rules and regulations promulgated by the commissioner pursuant to the provisions of this article.
(c) To promulgate such reasonable rules and regulations as may be necessary for the execution and enforcement of the provisions of this article, which may include, but shall not be limited to, the hours during which licensees may sell alcoholic liquors, and the use, handling, service and sale of such alcoholic liquors. Such rules and regulations shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of the code in like manner as if said article three of said chapter twenty-nine-a were set forth in extenso in this subdivision.
(d) To issue subpoenas and subpoenas duces tecum for the purposes of conducting hearings under the provisions of section thirteen of this article, which subpoenas and subpoenas duces tecum shall be issued in the time, for the fees, and shall be enforced in the manner specified in section one, article five, chapter twenty-nine-a of this code with like effect as if said section one were set forth in extenso in this subdivision.
The authority granted in subdivisions (a), (b), and (d) of this section may also be exercised by the duly authorized agents of the commissioner. The authority granted in subdivision (b) of this section may also be exercised by the superintendent of the division of public safety or by the duly authorized agents of the superintendent.



NOTE: The purpose of this bill is to make it unlawful for anyone over the age of twenty-one years to drive a motor vehicle with an alcohol concentration of eight hundredths of one percentor more, by weight, in the person's blood and making it unlawful for anyone under the age of twenty-one to drive a motor vehicle with an alcohol concentration of two hundredths of one percent or more, by weight, in the person's blood and making these provisions and penalties applicable to driving under the influence of alcohol, controlled substances or drugs when the person's driving privilege has been suspended or revoked. The bill provides penalties for violations. It also authorizes the superintendent of the division of public safety and his or her authorized agents to enter private clubs to enforce laws related to the consumption of intoxicating liquors.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.