Senate Bill No. 383
(By Senator Craigo and Bowman)
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[Introduced February 3, 2000; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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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 criminal penalties
for driving under influence of alcohol, controlled substances
or drugs; removing jail sentence for certain offenses;
changing minimum fine for certain offenses; and increasing the
minimum period of incarceration for certain offenses.
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 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 has Having an alcohol concentration in his or her blood
of ten 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 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 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 has Having an alcohol concentration in his or her blood
of ten 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 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 has Having an alcohol concentration in his or her blood
of ten 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 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 any
controlled substance or any other drug; or
(E) He has Having 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 two hundred fifty 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 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 of narcotic
drugs or amphetamine, 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 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 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 is not an admission or and may
not 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 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 has Having an alcohol concentration in his or her blood
of ten 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 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)(1) 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 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.
(2) A person violating any provision of subsection (d) of this
section is, for the second offense under this section, guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for a period of not less than nine 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 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 a 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) 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 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) 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 does 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 has the meaning ascribed to it in chapter
sixty-a of this code.
(p) 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 eliminate incarceration
as a possible penalty for first-time DUI violators. It would also
increase the minimum fine for the first offense to $250 and
increase the minimum period of incarceration for a second offense
to nine months.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.