COMMITTEE SUBSTITUTE

FOR

H. B. 2972

(By Delegates Staton, Amores, Douglas,

Givens, Campbell, Coleman and Wills)


(Originating in the Committee on the Judiciary)

[April 3, 2001]


A BILL to amend and reenact section four, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to blood alcohol tests; adding motorboat and personal watercraft; and allowing for use of a secondary chemical testing device in a county other than the county of arrest.

Be it enacted by the Legislature of West Virginia:
That section four, 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-5-4. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

(a) Any person who drives a motor vehicle, motorboat or personal watercraft, including jet skis, in this state shall be is deemed to have given his or her consent by the operation thereof of the motor vehicle, motorboat or personal watercraft, subject to the provisions of this article and article seven, chapter twenty of this code, to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood. (b) A preliminary breath analysis may be administered in accordance with the provisions of section five of this article whenever a law-enforcement officer has reasonable cause to believe a person to have has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in said section two of this article.
(c) A secondary test of blood, breath or urine shall be is incidental to a lawful arrest and shall is to be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in said section two of this article.
(d) The law-enforcement agency by which such that employs the law-enforcement officer is employed shall designate which one type of the aforesaid secondary tests shall test is to be administered: Provided, That if the test so designated is a blood test and the person so arrested refuses to submit to such the blood test, then the law-enforcement officer making such the arrest shall designate in lieu thereof, either a breath or urine test to be administered, and notwithstanding. Notwithstanding the provisions of section seven of this article, such the refusal to submit to a blood test only shall may not result in the revocation of the arrested person's license to operate a motor vehicle in this state.
(e) Any person to whom a preliminary breath test is administered who is then arrested shall must be given a written statement advising him or her that his or her refusal to submit to the secondary chemical test finally designated as provided in pursuant to subsection (d) of this section, will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least one year and up to life.
For the purpose of this article, the term "law-enforcement officer" or "police officer" shall mean and be limited to means: (1) Any member of the department of public safety of this state; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; (4) any conservation officer of the division of natural resources; and (5) any special police officer appointed by the governor pursuant to the provisions of section forty-one, article three, chapter sixty-one of this code who has completed the course of instruction at a law-enforcement training academy as provided for under the provisions of section nine, article twenty-nine, chapter thirty of this code.
(f) Any law-enforcement officer who has been properly trained in the administration of any secondary chemical test which a law-enforcement officer may conduct under authorized by this article, including, but not limited to, certification by the division of health in the operation of any equipment required for the collection and analysis of a breath sample, may conduct such the test at any location in the county wherein the arrest is made that the equipment and the facilities may be found: Provided, That the law-enforcement officer may conduct the test at the nearest available properly functioning secondary chemical testing device located outside the county in which the arrest was made, if: (1) there is no properly functioning secondary chemical testing device located within the county the arrest was made; or (2) there is no judge or magistrate available within the county the arrest was made for the arraignment of the person arrested. A law-enforcement officer who is directing that a secondary chemical test be conducted has the authority to transport the person arrested to where the secondary chemical testing device is located.
(g) However, when If the arresting officer lacks such proper training in the administration of a secondary chemical test, then any other law-enforcement officer who has received training in the administration of the secondary chemical test to be administered may, upon the request of such the arresting law-enforcement officer and in his or her presence, conduct such the secondary test and the. The results of such a test conducted pursuant to this subsection may be used in evidence to the same extent and in the same manner as if such the test had been conducted by such the arresting law-enforcement officer.
(h) Only the person actually administering or conducting such a test shall be conducted pursuant to this article is competent to testify as to the results and the veracity of such the test.
(i) For the purpose of this article, the term "law-enforcement officer" or "police officer" means: (1) Any member of the West Virginia state police; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; (4) any conservation officer of the division of natural resources; and (5) any special police officer appointed by the governor pursuant to the provisions of section forty-one, article three, chapter sixty-one of this code who has completed the course of instruction at a law-enforcement training academy as provided for under the provisions of section nine, article twenty-nine, chapter thirty of this code.