H. B. 2859
(By Delegates Davis, Wills, Hines and Amores)
[Introduced February 22, 1999; referred to the
Committee on the Judiciary.]
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 making the
offense of driving under the influence while failing to
perform a duty required by law and causing a death, a
felony; and, increasing the penalties for driving under the
influence with reckless disregard, thereby causing a death.
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
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 a correctional facility
for not less than one three nor more than ten years and shall be
fined not less than one three thousand dollars nor more than
three five 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
vehicle, 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 felony and, upon conviction thereof,
shall be confined in jail a correctional facility for not less
than ninety days three, one, nor more than ten five years nor
more than one year and shall be fined not less than five hundred
one thousand dollars nor more than one three 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
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.
(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 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 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.
NOTE: The purpose of this bill is to elevate the crime of
DUI causing a death to a felony. Current law makes the crime a
misdemeanor and, under current law, to elevate a DUI causing a
death to a felony, one must show intent or reckless disregard for
others. The bill also raises the penalty for DUI causing a death
with reckless disregard for the safety to others.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.