H. B. 2379
(By Delegate Stemple)
[Introduced January 9, 2008; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §17C-5C-1, §17C-5C-2,
§17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7,
§17C-5C-8, §17C-5C-9 and §17C-5C-10; and to amend and reenact
§60-6-9 of said code, all relating to conforming the motor
vehicle law of this state to the requirements of section
1405(a) of the federal Transportation Equity Act for the
Twenty-first Century (23 U.S.C. §154), as amended, which
requires states to enact and enforce a law that prohibits the
consumption of an alcoholic beverage or the possession of an
open alcoholic beverage container in the passenger area of a
motor vehicle that is located on a public highway or the
right-of-way adjacent to a public highway.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17C-5C-1, §17C-5C-2,
§17C-5C-3, §17C-5C-4, §17C-5C-5, §17C-5C-6, §17C-5C-7, §17C-5C-8,
§17C-5C-9 and §17C-5C-10; and that §60-6-9
of said code be amended
and reenacted,
all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5C. OPEN CONTAINER LAWS.
§17C-5C-1. Purpose.
The purpose of this article is to avoid the imposition of
sanctions against this state and the loss of federal-aid highway
construction funds under section 1405(a) of the federal
Transportation Equity Act for the Twenty-first Century (23 U.S.C.
§154), as amended, which requires states to enact and enforce a law
that prohibits the consumption of an alcoholic beverage or the
possession of an open alcoholic beverage container in the passenger
area of a motor vehicle that is located on a public highway or the
right-of-way adjacent to a public highway.
§17C-5C-2. Applicability of definitions.
For the purposes of this article, the words or terms defined
in this article have the meanings ascribed to them. These
definitions are applicable unless a different meaning clearly
appears from the context.
§17C-5C-3. Alcoholic beverage defined.
"Alcoholic beverage" means:
(1) Alcoholic liquor as defined in section five, article one, chapter sixty of this code; and
(2) Nonintoxicating beer as defined in section three, article
sixteen, chapter eleven of this code.
§17C-5C-4. Motor vehicle defined.
"Motor vehicle" means a vehicle driven or drawn by mechanical
power and manufactured primarily for use on public highways, but
does not include a vehicle operated solely on a rail or rails.
§17C-5C-5. Open alcoholic beverage container defined.
"Open alcoholic beverage container" means any bottle, can or
other receptacle that:
(1) Contains any amount of alcoholic beverage; and
(2)(A) Is open or has a broken seal; or
(B) Has had its contents partially removed.
§17C-5C-6. Passenger area of a motor vehicle defined.
"Passenger area of a motor 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 positions. For purposes of this
article, the passenger area of a motor vehicle does not include:
(1) (A) A locked glove compartment; or
(B) A fixed center console or other similar fixed compartment
that is locked;
(2) In a motor vehicle that is not equipped with a trunk;
(A) The area behind the last upright seat; or
(B) An area not normally occupied by the driver or a
passenger; or
(3) In a pickup truck that has no trunk, camper top or
separate enclosed area other than the cab of the truck, in the area
behind the front seat of the truck in a locked case or container
located so as to not be readily accessible to the driver or
passengers while in their seating positions.
§17C-5C-7. Public highway defined.
"Public highway or right-of-way of a public highway" means the
entire width between and immediately adjacent to the boundary lines
of every way that is publicly maintained, when any part thereof is
open to the use of the public for purposes of vehicular travel.
§17C-5C-8. Possession of an open alcoholic beverage container in
the passenger area of a motor vehicle; penalties.
(a) It is unlawful for the operator or a passenger of a motor
vehicle to consume any alcoholic beverage in the passenger area of
a motor vehicle located on a public highway or right-of-way of a
public highway in this state, whether the vehicle is in motion or
at rest.
(b) It is unlawful for the operator or a passenger of a motor
vehicle to knowingly possess any open alcoholic beverage container
in the passenger area of any motor vehicle that is located on a
public highway or right-of-way of a public highway in this state,
whether the vehicle is in motion or at rest. Possession by a person of one or more open containers in a single criminal
occurrence is a single offense.
(c) A person who violates the provisions of subsection (a) or
(b) of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than fifty dollars nor more than
one hundred dollars.
§17C-5C-9. Exceptions for passengers in certain vehicles.
The provisions of section eight of this article are not
applicable to a passenger:
(1) In the passenger area of a motor vehicle designed,
maintained or used primarily for the transportation of persons for
compensation including, but not limited to, a bus, taxicab or
limousine; or
(2) In the living quarters of a motorized or nonmotorized
house coach, house trailer, motor home or self-contained camper.
§17C-5C-10. Procedure on arrest.
If a person is arrested for an offense under the provisions of
this article, unless the provisions of section three, article
nineteen of this chapter require that the person arrested be taken
immediately before a magistrate for an offense described in that
section, the provisions of article nineteen of this chapter
regarding the issuance of a traffic citation containing a notice to
appear applies.
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 may 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) (3) Tender a drink of alcoholic liquor to another person
in a public place;
(5) (4) 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) (5)
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 serves as the chief complaining
witness. The judicial officer must make a finding that shall
determine if 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 is 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
shall be is 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 is 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 of
this state a state correctional facility
for a period of not less
than one year nor more than three years.
NOTE: The purpose of this bill is to prohibit the consumption
of an alcoholic beverage as well as the possession of an open
alcoholic beverage container in a motor vehicle.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§17C-5C-1 through 10 are new; therefore, strike-throughs and
underscoring have been omitted.