H. B. 2499
(By Delegates Faircloth and Trump)
[Introduced January 22, 2003; referred to the
Committee on the Judiciary then Finance.]
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 requiring that
persons convicted of first offense driving under the influence
or with an alcohol concentration in the blood of eight
hundredths of one percent or more by weight pay the costs of
their own incarceration, which incarceration is increased from
twenty-four hours to three days.
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
eight hundredths of one percent or more, by weight; and
(2) When While 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
eight hundredths of one percent or more, by weight; and
(2) When While 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
eight hundredths of one percent or more, by weight; and
(2) When While 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
eight 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 seventy-two 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 of narcotic drugs or
amphetamine, 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
eight 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 of narcotic drugs or amphetamine, 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 eight 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
seventy-two 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
eight 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, 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) for the first offense under this section
is required to pay the costs of his or her incarceration. The
division of corrections shall determine the average cost of
incarceration based on the total daily cost of operations divided
by the annual average number of inmates incarcerated in a
particular regional jail. The division shall assess that daily
cost against any person convicted under this subsection, to be
collected for each day the person is incarcerated. The total
amount due shall be due and payable within sixty days of the time
of the person's release date, unless otherwise agreed to by the
division. Upon verified proof of a failure to pay, the division is
entitled to a lien against any real or other property of value
owned by that person for any unpaid amounts required to be paid
under this subsection. The division shall each year determine the
average daily cost to be assessed as follows: The total annual cost shall be divided by the annual average number of inmates
incarcerated at each regional jail, which numerical result shall be
divided by three hundred sixty-five, or in the event of a leap
year, three hundred sixty-six, to render the average daily cost.
Any sums collected under this subsection shall be dedicated to the
use of the particular regional jail facility in which the person
was incarcerated.
(k) (l) 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) (m) For purposes of subsections (j), and (k) and (l) of
this section relating to second, third 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 in this section 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. 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 require persons
convicted of first offense DUI to pay the costs of their
incarceration. It also decreases the allowable blood alcohol
content from .10 to .08.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.