ENGROSSED
Senate Bill No. 701

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[Originating in the Committee on Finance;
Reported March 3, 1999.];

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A BILL to amend and reenact section two, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing fines and community service for first offense driving under the influence; requiring as part of sentencing that an offender completes an alcohol treatment program approved by the commissioner of motor vehicles; providing for the evaluation and assessment of offenders who complete the alcohol treatment program; providing that an offender who fails to complete ordered community service or the alcohol treatment program is subject to jail time; requiring offenders to affix decals on licenses designed by commissioner; and requiring offenders cars to be impounded for twenty-four hours after arrest and prohibiting offenders from driving for twenty-four hours after the arrest.

Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted 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:
(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 driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of ~~such~~ a vehicle, which act or failure proximately causes the death of any person within one year next following ~~such~~ the 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~~ the 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 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 driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of ~~such~~ a vehicle, which act or failure proximately causes the death of any person within one year next following ~~such~~ 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.
(c) Any person who:
(1) Drives a vehicle 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 driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of ~~such~~ a 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 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 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 fined no less than two hundred fifty dollars nor more than seven hundred and fifty dollars and ordered to perform no less than fifty nor more than one hundred hours of community service as directed by the court: Provided, That the commissioner of motor vehicles shall propose legislative rules designed to provide the court with approved alternatives for community service which shall take into consideration an offender's mental and physical capabilities and which shall provide alternatives for all such offenders regardless of their physical or mental limitations: Provided, however, That the offender must participate in and successfully complete, within one year from the date of sentencing, an alcohol treatment program approved by the commissioner. Each offender, upon completion of the approved alcohol treatment program shall submit to a progress assessment prescribed by the commissioner: Provided further, That in the event an offender fails to successfully complete either the ordered community service or the alcohol treatment program and assessment within one year from the date of sentencing, unless upon a showing of extenuating circumstances verified under oath, he or she shall be subject to confinement in a regional jail facility for not more than six months: And provided further, That no offender ordered to be confined under the provisions of this subdivision may be credited with time served as the result of serving all or a portion of any sentence of community service: And provided further, That no offender who has been convicted of a first offense under the provisions of this section may be charged or convicted of another such first offense within a period of not less than five years from the date of the original first offense.
(i) A person convicted under this subsection, upon the expiration of any driving suspension period imposed by the commissioner, shall upon the direction of the commissioner have affixed upon the driver's or operator's license plate of that person a decal or other notation to be designed by the commissioner which shall alert police officers and others that the person has been convicted of the offense enumerated under this section. The decal or other notation shall be color coded, shall name the offender and shall set forth the date of conviction and the date on which it is affixed to the driver's or operator's license. Upon the expiration of one year from the date that the decal or other notation was first affixed, it may be removed by the person.
(ii) The motor vehicle in which a person is arrested under this subsection shall be impounded for a period of not less than twenty-four hours from the date of the arrest upon a finding of probable cause that the person so driving the vehicle is guilty of the offense charged, and the arrestee shall be prohibited from driving a motor vehicle for twenty-four hours from the time he or she is placed under arrest upon the finding of probable cause.
(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 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 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) 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 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 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 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 for 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 shall 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:
(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 driving has on or within the motor vehicle 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~~ eight 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 not more than fifty percent of this sentence may be served in home confinement.
(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 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 effective date of this section;
(2) Any conviction under the provisions of subsection (a) or (b) of the prior 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; 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 tenth day of June, one thousand nine hundred eighty-three.
(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 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.
(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.