H. B. 4653
(By Delegates Faircloth, Trump,
Douglas and Staton)
[Introduced February 24, 2000; 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 requiring that
persons convicted of first offense driving under the
influence or with an alcohol concentration in the blood of
eight hundredths of one percent or more by weight pay the
costs of their own incarceration, which incarceration is
increased from twenty-four hours to three days.
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 eight hundredths of one percent or more, by weight;
and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of such
the 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 the 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 is guilty of a felony and, upon
conviction thereof, shall be imprisoned in the penitentiary a
state correctional facility 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 eight hundredths of one percent or more, by weight;
and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of such
the 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 the county or regional 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 eight hundredths of one percent or more, by weight;
and
(2) When so While driving does any act forbidden by law or
fails to perform any duty imposed by law in the driving of such
the 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
the county or regional 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 eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional 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
seventy-two 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 of narcotic drugs or
amphetamine, drives a vehicle in this state, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
the county or regional 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
eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional 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 of narcotic drugs
or amphetamine, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional 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 eight hundredths of
one percent, by weight, shall is, 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 that person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four seventy-two 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 may 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 eight hundredths of one percent or more, by weight;
and
(2) The person when so while 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 is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional 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 is, for the
second offense under this section, be guilty of a misdemeanor
and, upon conviction thereof, shall be confined in the county or
regional 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) for the first offense under this
section is required to pay the costs of his or her incarceration.
The division of corrections shall determine the average cost of
incarceration based on the total daily cost of operations divided
by the annual average number of inmates incarcerated in a
particular regional jail. The division shall assess that daily
cost against any person convicted under this subsection, to be
collected for each day the person is incarcerated. The total
amount due shall be due and payable within sixty days of the time
of the person's release date, unless otherwise agreed to by the
division. Upon verified proof of a failure to pay, the division
is entitled to a lien against any real or other property of value
owned by that person for any unpaid amounts required to be paid
under this subsection. The division shall each year determine
the average daily cost to be assessed as follows: The total
annual cost shall be divided by the annual average number of
inmates incarcerated at each regional jail, which numerical
result shall be divided by three hundred sixty-five, or in the
event of a leap year, three hundred sixty-six, to render the
average daily cost. Any sums collected under this subsection
shall be dedicated to the use of the particular regional jail
facility in which the person was incarcerated.
(k) (l) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) of this section shall is, 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 state correctional facility 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) (m) For purposes of subsections (j), and (k) and (l) 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) (n) 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 that case, the warrant or indictment or information must
shall 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) (o) 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) (p) For purposes of this section, the term "controlled
substance" shall have has the meaning ascribed to it in chapter
sixty-a of this code.
(p) (q) The sentences provided herein in this section upon conviction for a violation of this article are mandatory and
shall are 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 require persons
convicted of first offense DUI to pay the costs of their
incarceration. It also decreases the blood alcohol content from
.10 to .08.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.