Senate Bill No. 203

(By Senators Unger, Anderson, Rowe and Burnette)

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[Introduced January 14, 2002; referred to the Committee

on the Judiciary.]

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A BILL to amend and reenact section nineteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section nine, article six, chapter sixty of said code, all relating to making the state's laws applying to the use and possession of beer and alcoholic beverages in motor vehicles conform to federal law.

Be it enacted by the Legislature of West Virginia:
That section nineteen, article sixteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section nine, article six, chapter sixty of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 16. NONINTOXICATING BEER.
§11-16-19. Unlawful acts of persons; criminal penalties.
(a) Any person under the age of twenty-one years who purchases, consumes, sells, possesses or serves nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed five hundred dollars or shall be incarcerated in the county or regional jail for a period not to exceed seventy-two hours, or both fined and imprisoned, or, in lieu of such fine and incarceration, may, for the first offense, be placed on probation for a period not to exceed one year.
Nothing in this article, nor any rule or regulation of the commissioner, shall may prevent or be deemed considered to prohibit any person who is at least eighteen years of age from serving in the lawful employment of any licensee, which may include the sale or delivery of nonintoxicating beer as defined in this article. Further, nothing in this article, nor any rule or regulation of the commissioner, shall may prevent or be deemed considered to prohibit any person who is less than eighteen but at least sixteen years of age from being employed by a licensee whose principal business is the sale of food or consumer goods or the providing of recreational activities, including, but not limited to, nationally franchised fast food outlets, family-oriented restaurants, bowling alleys, drug stores, discount stores, grocery stores and convenience stores: Provided, That such person shall may not sell or deliver nonintoxicating beer.
Nothing in this subsection shall prohibit prohibits a person who is at least eighteen years of age from purchasing or possessing nonintoxicating beer when he or she is acting upon the request of or under the direction and control of any member of a state, federal or local law-enforcement agency or the West Virginia alcohol beverage administration while the agency is conducting an investigation or other activity relating to the enforcement of the alcohol beverage control statutes and the rules and regulations of the commissioner.
(b) Any person under the age of twenty-one years who, for the purpose of purchasing nonintoxicating beer, misrepresents his or her age, or who for such that purpose presents or offers any written evidence of age which is false, fraudulent or not actually his or her own, or who illegally attempts to purchase nonintoxicating beer, is guilty of a misdemeanor and, upon conviction thereof, shall be fined in an amount not to exceed fifty dollars or shall be imprisoned in the county or regional jail for a period not to exceed seventy-two hours, or both such fine and imprisonment fined and imprisoned, or, in lieu of such fine and imprisonment, may, for the first offense, be placed on probation for a period not exceeding one year.
(c) Any person who shall knowingly buy buys for, give gives to or furnish furnishes nonintoxicating beer to anyone under the age of twenty-one to whom they are not related by blood or marriage is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars or shall be imprisoned in the county or regional jail for a period not to exceed ten days, or both such fine and imprisonment fined and imprisoned.
(d) Any person who at any one time transports into the state for their personal use, and not for resale, more than six and seventy-five hundredths gallons of nonintoxicating beer, upon which the West Virginia barrel tax has not been imposed, shall be is guilty of a misdemeanor and shall, upon conviction thereof, be fined in an amount not to exceed one hundred dollars and have all the untaxed nonintoxicating beer in their possession at the time of the arrest confiscated, or imprisoned for ten days in the county or regional jail, or both fined and imprisoned.
(e) It is unlawful for any person to drink any beer beverage in a motor vehicle or to keep in the passenger area of a motor vehicle located anywhere on a public road or highway or the right-of-way of any public road or highway, any bottle, can or other receptacle that contains any amount of any beer beverage, and that is open or has a broken seal, or the contents of which are partially removed, unless the container is kept in the trunk of the vehicle, or behind the last upright seat of some other area of the vehicle not normally occupied by passengers if the vehicle is not equipped with a trunk. This prohibition does not apply to the passenger area of a motor vehicle designed or used primarily for the transportation of persons for compensation such as buses, taxis and limousines or to the living quarters of a house coach or house trailer. For the purposes of this subsection the following definitions apply:
(1) "Beer" means any beer, ale, porter, stout and other similar fermented beverages including sake or similar products of any name or description containing one half of one percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute for malt;
(2) "Passenger area of a vehicle" means the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating position, including the glove compartment; and
(3) "Public road or highway or right-of-way of a public road or highway" means the entire width between and immediately adjacent to the boundary lines of every way publicly maintained when any part is open to the use of the public for vehicular travel.
If the Congress of the United States repeals the mandate established by the Surface Transportation Assistance Act of 1982 relating to national uniform drinking age of twenty-one as found in section six of Public Law 98-363, or a court of competent jurisdiction declares the provision to be unconstitutional or otherwise invalid, it is the intent of the Legislature that the provisions contained in this section and section eighteen of this article which prohibit the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person who is less than twenty-one years of age shall be null and void and the provisions therein shall thereafter remain in effect and apply to the sale, furnishing, giving, purchase or ownership of nonintoxicating beer to or by a person who is less than nineteen years of age.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.

ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-9. Intoxication or drinking in public places; illegal possession of alcoholic liquor; arrests by sheriffs or their deputies for violation in their presence; penalties.
(a) A person shall not:
(1) Appear in a public place in an intoxicated condition;
(2) Drink alcoholic liquor in a public place;
(3) Drink alcoholic liquor in a motor vehicle on any highway, street, alley or in a public garage;
(4) Keep in the passenger area of a motor vehicle located anywhere on a public road or highway or the right-of-way of any public road or highway, any bottle, can or other receptacle that contains any amount of any alcoholic beverage, and that is open or has a broken seal, or the contents of which are partially removed unless the container is kept in the trunk of the vehicle, or behind the last upright seat of some other area of the vehicle not normally occupied by passengers if the vehicle is not equipped with a trunk. This prohibition does not apply to the passenger area of a motor vehicle designed or used primarily for the transportation of persons for compensation such as buses, taxis and limousines or to the living quarters of a house coach or house trailer. For the purposes of this subsection the following definitions apply:
(A) "Alcoholic beverage" means distilled spirits which is that substance known as ethyl alcohol, ethanol or spirits of wine of not less than one half of one percent of alcohol in any form including all dilutions and mixtures from whatever source or by whatever process produced;
(B) "Passenger area of a vehicle" means the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating position, including the glove compartment; and
(C) "Public road or highway or right-of-way of a public road or highway" means the entire width between and immediately adjacent to the boundary lines of every way publicly maintained when any part is open to the use of the public for vehicular travel.
(4) (5) Tender a drink of alcoholic liquor to another person in a public place;
(5) (6) Possess alcoholic liquor in the amount in excess of ten gallons, in containers not bearing stamps or seals of the commissioner, without having first obtained written authority from the said commissioner therefor; or
(6) (7) Possess any alcoholic liquor which was manufactured or acquired in violation of the provisions of this chapter.
(b) Any law-enforcement officer may arrest without a warrant and take the following actions against a person who, in his or her presence, violates subdivision (1) of subsection (a) of this section: (1) If there is some nonintoxicated person who will accept responsibility for the intoxicated person, the officer may issue the intoxicated person a citation specifying a date for appearance before a judicial officer and release him or her to the custody of the individual accepting responsibility: Provided, That the issuance of a citation shall be used whenever feasible; (2) if it does not impose an undue burden on the officer, he or she may, after issuance of such a citation, transport the individual to the individual's present residence or arrange for such transportation; (3) if the individual is incapacitated or the alternatives provided in subdivisions (1) and (2) of this subsection are not possible, the officer shall transport or arrange for transportation to the appropriate judicial officer as defined by section seventeen, article eleven, chapter twenty-seven of this code; or (4) if the individual is incapacitated and, in the law-enforcement officer's judgment, is in need of acute medical attention, that officer shall arrange for transportation by ambulance or otherwise to a hospital emergency room. The officer shall accompany the individual until he or she is discharged from the emergency room or admitted to the hospital. If the individual is released from the emergency room, the officer may proceed as described in subdivisions (1), (2) and (3) of this subsection. If the individual is admitted to the hospital, the officer shall issue a citation to the individual specifying a date for appearance before a judicial officer.
(c) Upon presentment before the proper judicial officer, the law-enforcement officer shall serve as the chief complaining witness. The judicial officer must make a finding that there is probative evidence that the individual may be guilty of the charge of public intoxication. If such evidence is not presented, the charge shall be dismissed and the individual released. If sufficient evidence is presented, the judicial officer shall issue a warrant and establish bail or issue a summons to the individual. Once a warrant or summons has been issued, the following actions may be taken: (1) If the individual is no longer incapacitated, he or she may be released; (2) if the individual is still incapacitated but a nonintoxicated person is available to accept responsibility for him or her, he or she may be released to the responsible person; or (3) if the individual is still incapacitated and no responsible person is available, the judicial officer shall proceed under the provisions of article five or six-a, chapter twenty-seven of this code.
(d) Any law-enforcement officer is hereby authorized and empowered to arrest and hold in custody, without a warrant, until complaint may be made before a judicial officer and a warrant or summons issued, any person who in the presence of the law-enforcement officer violates any one or more of subdivisions (1) through (6), subsection (a) of this section: Provided, That the law-enforcement officer may use reasonable force to prevent harm to himself or herself, the individual arrested or others in carrying out the provisions of this section.
(e) Any person who violates subdivision (1), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced by a judicial officer in accordance with the following options: (1) Upon first offense, a fine of not less than five dollars nor more than one hundred dollars. If the individual, prior to conviction, agrees to voluntarily attend an alcohol education program of not more than six hours duration at the nearest community mental health -- mental retardation center, the judicial officer may delay sentencing until the program is completed and upon completion may dismiss the charges; (2) upon conviction for a second offense, a fine of not less than five dollars nor more than one hundred dollars and not more than sixty days in the county or regional jail or completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center; (3) upon third and subsequent convictions, a fine of not less than five dollars nor more than one hundred dollars and not less than five nor more than sixty days in county or regional jail or a fine of not less than five dollars nor more than one hundred dollars and completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center: Provided, That three convictions for public intoxication within the preceding six months shall be considered evidence of alcoholism: Provided, however, That for the educational counseling programs described in this subsection the community mental health -- mental retardation center may charge each participant its usual and customary fee and shall certify in writing to the referring judicial officer the completion or failure to complete the prescribed program for each individual.
(f) A person charged with a violation of subdivision (1), subsection (a) of this section who is an alcoholic shall be found not guilty by reason of addiction and proper disposition made pursuant to articles five and six-a, chapter twenty-seven of this code.
(g) Any person who violates subdivision (2), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five nor more than one hundred dollars; and upon a second or subsequent conviction thereof, shall be fined not less than five nor more than one hundred dollars, or confined in the county or regional jail not more than sixty days, or both.
(h) Any person who violates subdivision (3), subsection (a) of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five nor more than one hundred dollars, or confined in the county or regional jail not more than sixty days, or both.
(i) Any person who violates subdivision (4) or (5), subsection (a) of this section shall be is guilty of a misdemeanor and, upon his or her first conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars; and upon conviction of second or subsequent offense, he or she shall be guilty of a felony and shall be confined in the penitentiary imprisoned in a correctional facility of this state for a period of not less than one year nor more than three years.

NOTE: The purpose of this bill is to make the state's laws applying to the use and possession of beer and alcoholic beverages in motor vehicles to conform to federal law.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.