H. B. 4592
(By Delegates Proudfoot, Williams, Stemple, Riggs, Willis,
Kelley and Anderson)
(Originating in the Committee on
Agriculture and Natural Resources)
[February 26, 1998]
A BILL to amend article seven, chapter twenty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by
adding thereto two new sections, designated sections eighteen- a and eighteen-b, all relating to establishing the misdemeanor
criminal offense of negligent homicide when a motorboat or
vessel is operated in reckless disregard of the safety of
others and results in the death of any person and establishing
the penalty therefor of imprisonment of not more than one year
or fine of not less than one hundred dollars nor more than one
thousand dollars, or both imprisonment and fine, and
suspending motorboat or vessel operation privileges for a five
year period for one so convicted; establishing the felony
criminal offense of operating a motorboat or vessel under the
influence of alcohol, controlled substances, other drugs, or
a combination thereof, when a motorboat or vessel is operated in reckless disregard of the safety of others and results in
the death of any person, and establishing the penalty therefor
of imprisonment of not less than one year nor more than ten
years and fine of not less than one thousand dollars nor more
than three thousand dollars; establishing the misdemeanor
criminal offense of operating a motorboat or vessel under the
influence of alcohol, controlled substances, other drugs, or
a combination thereof, when a motorboat or vessel is operated
in violation of any act forbidden by law and results in the
death of any person, and establishing the penalty therefor of
imprisonment of not less than ninety days nor more than one
year and fine of not less than five hundred dollars nor more
than one thousand dollars; establishing the misdemeanor
criminal offense of operating a motorboat or vessel under the
influence of alcohol, controlled substances, other drugs, or
a combination thereof, when a motorboat or vessel is operated
in violation of any act forbidden by law and results in the
injury of any person other than himself or herself, and
establishing the penalty therefor of imprisonment of not less
than one day nor more than one year, to include actual
confinement of not less than twenty-four hours and fine of not
less than two hundred dollars nor more than one thousand
dollars; establishing the misdemeanor criminal offense of
operating a motorboat or vessel under the influence of alcohol, controlled substances, other drugs, or a combination
thereof, and establishing the penalty therefor of imprisonment
of not less than one day nor more than six months, to include
actual confinement of not less than twenty-four hours and fine
of not less than one hundred dollars nor more than five
hundred dollars; establishing the misdemeanor criminal offense
of operating a motorboat or vessel by any person who is a
habitual user of narcotic drugs or amphetamine, or derivative
thereof, and establishing the penalty therefor of imprisonment
of not less than one day nor more than six months, to include
actual confinement of not less than twenty-four hours and fine
of not less than one hundred dollars nor more than five
hundred dollars; establishing the misdemeanor criminal offense
of knowingly allowing the operation of one's motorboat or
vessel by any person who is under the influence of alcohol,
controlled substances, other drugs, or a combination thereof,
and establishing the penalty therefor of imprisonment of not
more than six months, and fine of not less than one hundred
dollars nor more than five hundred dollars; establishing the
misdemeanor criminal offense of knowingly allowing the c drugs
or amphetamine, or derivative thereof, and establishing the
penalty therefor of imprisonment of not more than six month
and fine of not less than one hundred dollars nor more than
five hundred dollars; establishing the misdemeanor criminal offense of operating a motorboat or vessel while under the age
of twenty-one years while he or she has an alcohol blood
concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than ten hundredths of
one percent, by weight, and for a first offense, establishing
the penalty therefor of a fine of not less than twenty-five
dollars nor more than one hundred dollars, for a second
offense, establishing the penalty therefor of imprisonment of
twenty-four hours and a fine of not less than one hundred
dollars nor more than five hundred dollars; permitting an
arrest and charge under different subsections for the same
transaction or occurrence; establishing the misdemeanor
criminal offense of operating a motorboat or vessel under the
influence of alcohol, controlled substances, other drugs, or
a combination thereof with one or more persons on board who
are less than sixteen years of age and establishing the
penalty therefor of imprisonment of not less than two days nor
more than twelve months, to include actual confinement of not
less than forty-eight hours, and fine of not less than two
hundred dollars nor more than one thousand dollars;
establishing that a second offense shall constitute a
misdemeanor with a penalty of confinement not less than six
months nor more than one year, and a discretionary fine of not
less than one thousand dollars nor more than three thousand dollars; establishing that a third offense shall constitute a
felony with a penalty of confinement in the penitentiary not
less than three years, and a discretionary fine of not less
than three thousand dollars nor more than five thousand
dollars; establishing that subsequent offenses which
constitute second or third convictions include subsections of
this article, any municipal ordinance of this state or statute
if the Unite States or any other state which has the same
elements as an offense described in this article; permitting
a person to be charged in warrant or indictment or information
for a subsequent offense before final adjudication of the
subsequent offense; negating a defense of prescribed use of
alcohol or controlled substances; defining controlled
substances; and, establishing that all sentences herein are
mandatory while allowing the court certain discretion.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter twenty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections
eighteen-a and eighteen-b, all to read as follows:
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-18a. Negligent homicide; penalties.
(a) When the death of any person ensues within one year as a
proximate result of injury received by operating any motorboat or vessel anywhere in this state in reckless disregard of the safety
of others, the person so operating such motorboat or vessel shall
be guilty of negligent homicide.
(b) Any person convicted of negligent homicide shall be
punished by imprisonment for not more than one year or by fine of
not less than one hundred dollars nor more than one thousand
dollars, or by both such fine and imprisonment.
(c) The director shall suspend the privilege to operate a
motorboat or vessel in this state for a period of five years from
the date of conviction.
§20-7-18b. Operating under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Operates a motorboat or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of such motorboat or vessel, 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) Operates a motorboat or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of such
motorboat or vessel, which act or failure proximately causes the
death of any person within one year next following such 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.
(c)Any person who:
(1) Operates a motorboat or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of such
motorboat or vessel, 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
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) Operates a motorboat or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten 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 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, operates a motorboat or
vessel 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 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 or her motorboat or vessel to be operated 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) Has an alcohol concentration in his or her blood of ten
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 motorboat or vessel to be
operated 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 operates
a motorboat or vessel 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 ten hundredths of one percent, by weight, shall, for a first offense under this subsection, be 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, such
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 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) Operates a motorboat or vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten hundredths of one percent or more, by weight; and
(2) The person when so operating has on or within the
motorboat or vessel one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, shall be
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 shall 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 shall, for the second
offense under this section, be guilty of a misdemeanor, and, upon
conviction thereof, shall be confined in 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
nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (I) 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.
(l) For purposes of subsections (j) and (k) 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 this section for an offense which
occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a) or
(b) of this section for an offense which occurred within a period
of five years immediately preceding the date of the offense; and
(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 an offense
described in subsection (a), (b), (c), (d), (e), (f) or (g) of this
section, which offense occurred after the effective date of this
section.
(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 periods for prior offenses, notwithstanding 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.
(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 operate 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.
(o) For purposes of this section, the term "controlled
substance" shall have 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 shall 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. An
order for home detention by the court pursuant to the provisions of
article eleven-b, chapter sixty-two of this code may be used as an
alternative sentence to any period of incarceration required by
this section.
NOTE: The purpose of this bill is to enact a negligent
homicide while boating statute and a comprehensive boating under
the influence statute very similar to the statute for driving under
the influence.
These are entirely new sections, therefore strike-throughs and
underscoring are not necessary.