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.