Senate Bill No. 85
(By Senator Mitchell)
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[Introduced January 9, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section eight, article five, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to providing immunity
from civil damages for a police officer who withdraws a charge
of driving under the influence when the criminal defendant's
secondary breathalyzer result is five hundredths of one
percent or less, by weight, of alcohol in his or her blood.
Be it enacted by the Legislature of West Virginia:
That section eight, 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-5-8. Interpretation and use of chemical test; immunity from
civil liability for police officer who withdraws
charge.
Upon trial for the offense of driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs or upon the trial of any civil or criminal action arising
out of acts alleged to have been committed by any person driving a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, evidence of the amount of alcohol in the
person's blood at the time of the arrest or of the acts alleged, as
shown by a chemical analysis of his or her blood, breath or urine,
is admissible, if the sample or specimen was taken within two hours
from and after the time of arrest or of the acts alleged, and shall
give rise to the following presumptions or have the following
effect:
(a) Evidence that there was, at that time, five hundredths of
one percent or less, by weight, of alcohol in his or her blood,
shall be prima facie evidence that the person was not under the
influence of alcohol: Provided, That any police officer who
withdraws a criminal charge for driving under the influence pending
against a person whose secondary breathalyser result evidenced five
hundredths of one percent or less, by weight, of alcohol in his or
her blood, is immune from liability in any civil action which
alleges any wrongful act or omission resulting from the withdrawal
of the criminal charge
;
(b) Evidence that there was, at that time, more than five
hundredths of one percent and less than ten hundredths of one percent, by weight, of alcohol in the person's blood shall be
relevant evidence, but it is not to be given prima facie effect in
indicating whether the person was under the influence of alcohol;
(c) Evidence that there was, at that time, ten hundredths of
one percent or more, by weight, of alcohol in his or her blood,
shall be admitted as prima facie evidence that the person was under
the influence of alcohol.
A determination of the percent, by weight, of alcohol in the
blood shall be based upon a formula of: (1) The number of grams of
alcohol per one hundred cubic centimeters of blood; (2) the number
of grams of alcohol per two hundred ten liters of breath; or (3)
the number of grams of alcohol per sixty-seven milliliters of
urine.
A chemical analysis of a person's blood, breath or urine, in
order to give rise to the presumptions or to have the effect
provided for in subdivisions (a), (b) and (c) of this section, must
be performed in accordance with methods and standards approved by
the state division of health. A chemical analysis of blood or
urine to determine the alcoholic content of blood shall be
conducted by a qualified laboratory or by the state police
scientific laboratory of the criminal identification bureau of the
division of public safety.
The provisions of this article
shall do
shall not limit the
introduction in any administrative or judicial proceeding of any other competent evidence bearing on the question of whether the
person was under the influence of alcohol, controlled substances or
drugs.
NOTE: The purpose of this bill is to provide immunity from
liability for police officers who withdraw charges for DUI against
persons whose breathalyser results were .05 or less.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.