Senate Bill No. 274
(By Senators Kessler and Mitchell)
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[Introduced January 21, 2002; referred to the Committee
on the Judiciary.]
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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 serious traffic
offenses generally; and increasing the sentence for
conviction of a fourth or subsequent offense of driving
while under the influence of alcohol, controlled substances
or drugs.
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 he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of
any person within one year next following the act or failure;
and
(3) Commits 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 the
death, is guilty of a felony and, upon conviction thereof, shall
be imprisoned in 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 he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of
any person within one year next following 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 he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of 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 is to 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 he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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 the county or regional jail for not less
than one day nor more than six months, which jail term is to
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 the county or regional jail for
not less than one day nor more than six months, which jail term
is to 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:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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 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,
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 hundredths of one
percent, by weight, for a first offense under this subsection,
is 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, the person is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
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 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 he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is 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; 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, 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 is to 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, for the second
offense under this section, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for 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, for the third or any
subsequent offense under this section, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a 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) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the fourth or any
subsequent offense under this section, is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than three nor more than ten
years, and the court may, in its discretion, impose a fine of
not less than five thousand dollars nor more than ten thousand
dollars.
(l) (m) For purposes of subsections (j) and (k) (j) (k) and
(l) of this section relating to second, third, fourth and
subsequent offenses, the following types of convictions are to
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 that 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) (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 does 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" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) (q) The sentences provided herein upon conviction for
a violation of this article are mandatory and may 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. Except for a conviction
under the provisions of subsection (l) of this section, an order
for supervision or participation in a community corrections
program created pursuant to article eleven-c, 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
increase the sentence
for conviction of a fourth or subsequent offense of driving
while under the influence of alcohol, controlled substances or drugs to not less than three nor more than ten years in a state
correctional facility, and in the court's discretion assessment
of a fine of not less than five thousand dollars nor more than
ten thousand dollars.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.