WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-SIXTH LEGISLATURE
REGULAR SESSION, 2004
TWENTY-THIRD DAY
____________
Charleston, W. Va., Thursday, February 5, 2004
The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Right Reverend E. Alphonso Heyliger,
Senior Pastor, Ferguson Memorial Baptist Church, Dunbar, West
Virginia.
Pending the reading of the Journal of Wednesday, February 4,
2004,
On motion of Senator Dempsey, the Journal was approved and the
further reading thereof dispensed with.
The Senate proceeded to the second order of business and the
introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced
the passage by that body, to take effect from passage, and
requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4085--A Bill to amend and
reenact §18-10L-3, §18-10L-4 and §18-10L-5 of the code of West
Virginia, 1931, as amended, all relating generally to the Ron Yost
personal assistance services act; modifying definitions; clarifying requirements to receive personal assistance services; providing
that the division of rehabilitation services shall directly or
through contract administer program; providing that the statewide
independent living council shall appoint members of board; duties
of board members; board to approve contracts proposed by division
of rehabilitation services; providing that no member of board can
receive services through program; and duties of recipients.
Referred to the Committee on Health and Human Resources.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. Com. Sub. for House Bill No. 4110--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, 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.
Referred to the Committee on Transportation; and then to the
Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced
the passage by that body and requested the concurrence of the
Senate in the passage of
Eng. House Bill No. 4248--A Bill to amend and reenact §22-20-1
of the code of West Virginia, 1931, as amended; and to amend said
code by adding thereto a new section, designated §22-20-2, all
relating to continuation of the office of environmental advocate.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced
the adoption by that body and requested the concurrence of the
Senate in the adoption of
House Concurrent Resolution No. 7--Requesting the Governor to
take suitable public notice on Saturday, April 24, 2004, and on the
last Saturday of April of each succeeding year thereafter, of
"Local Firefighter Day", in honor, recognition and appreciation of
all local firefighters of West Virginia and their families.
Whereas, Local firefighters are first responders to calls for
help in a wide variety of emergencies, ranging from floods, fires,
snow storms, wrecks and hazardous materials spills, to lost
children and beloved pets in need of rescue; and
Whereas, Local firefighters endure long hours of arduous work
and training to serve the people of West Virginia; and
Whereas, Services offered by local firefighters are vital to
the health, welfare and safety of all the state's citizens; and
Whereas, During emergencies in the state, firefighters suffer
prolonged discomfort and frequently risk their lives to protect the lives and property of their fellow citizens; and
Whereas, The hardships, dangers and long hours away from home
endured by local firefighters cause loving family members of
firefighters to bear many sacrifices and hardships; therefore, be
it
Resolved by the Legislature of West Virginia:
That the Governor is hereby requested to take suitable public
notice on Saturday, April 24, 2004, and on the last Saturday of
April of each succeeding year thereafter, of "Local Firefighters
Day", in honor, recognition and appreciation of all West Virginia
firefighters and their families; and, be it
Further Resolved, That the Clerk of the House of Delegates is
directed to send copies of this resolution to Gary Bonnett,
President of the West Virginia State Fire Chiefs Association, Tom
Wolford, President of the West Virginia State Firemen's
Association, Kessler Cole, President of the West Virginia
Professional Fire Chiefs Association and Chuck Walsh, President of
the West Virginia Professional Firefighters Association.
Referred to the Committee on Rules.
Executive Communications
The Clerk then presented a communication from His Excellency,
the Governor, advising that on February 3, 2004, he had approved
Enr. Senate Bill No. 190.
The Senate proceeded to the fourth order of business.
Senator Ross, from the Committee on Transportation, submitted
the following report, which was received:
Your Committee on Transportation has had under consideration
Senate Bill No. 52, Allowing motorcycle registration plates to
be fastened in vertical position.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 52 (originating in the Committee
on Transportation)--A Bill to amend and reenact §17A-3-15 of the
code of West Virginia, 1931, as amended, relating to registration
plates for motorcycles; allowing for plates to be fastened in
vertical position; and requiring the commissioner of the division
of motor vehicles to offer owners of motorcycles the choice of
registration plates for vertical or horizontal positioning.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Mike Ross,
Chair.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 174, Providing department of administration
regulatory authority over certain purchases.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 174 (originating in the
Committee on Government Organization)--A Bill to amend and reenact §5A-3-15 of the code of West Virginia, 1931, as amended, relating
to providing that the purchasing division of the department of
administration has regulatory authority over purchases and sales
for flood and other emergency relief; and defining regulatory
authority.
With the recommendation that the committee substitute do pass;
but under the original double committee reference first be referred
to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The bill (Com. Sub. for S. B. No. 174), under the original
double committee reference, was then referred to the Committee on
Finance.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 181, Permitting retired state police to carry
concealed weapon for life.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 181 (originating in the
Committee on the Judiciary)--A Bill to amend and reenact §15-2-25
of the code of West Virginia, 1931, as amended, relating to
permitting a retired member of the state police to carry a
concealed weapon for the life of the member.
And,
Senate Bill No. 208, Allowing state police to engage in
political activities in certain cases.
And reports back a committee substitute for same with the
following title:
Com. Sub. for Senate Bill No. 208 (originating in the
Committee on the Judiciary)--A Bill
to amend and reenact §15-2-13
of the code of West Virginia, 1931, as amended, relating to
allowing members of the state police to engage in certain political
activities while out of uniform and off duty.
With the recommendation that the two committee substitutes do
pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Sharpe, from the Committee on Energy, Industry and
Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under
consideration
Senate Bill No. 331, Authorizing board of architects to
promulgate legislative rule relating to registration of architects.
Senate Bill No. 340, Authorizing department of environmental
protection to promulgate legislative rule relating to nitrogen
oxide budget trading program as means of control and reduction of
nitrogen oxides from nonelectric generating units.
Senate Bill No. 341, Authorizing department of environmental protection to promulgate legislative rule relating to emission
standards for hazardous air pollutants.
Senate Bill No. 344, Authorizing department of environmental
protection to promulgate legislative rule relating to emission
standards for hazardous air pollutants for source categories.
Senate Bill No. 346, Authorizing department of environmental
protection to promulgate legislative rule relating to surface
mining reclamation.
Senate Bill No. 349, Authorizing department of environmental
protection to promulgate legislative rule relating to NPDES rule
for coal mining facilities.
Senate Bill No. 352, Authorizing board of registration for
professional engineers to promulgate legislative rule relating to
governance of board.
Senate Bill No. 376, Authorizing board of examiners of land
surveyors to promulgate legislative rule relating to minimum
standards for practice of land surveying.
And,
Senate Bill No. 384, Authorizing office of miners' health,
safety and training to promulgate legislative rule relating to
reporting requirements for independent contractors.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on the Judiciary.
Respectfully submitted,
William R. Sharpe, Jr.,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on the Judiciary.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 342, Authorizing department of environmental
protection to promulgate legislative rule relating to standards of
performance for new stationary sources.
Senate Bill No. 343, Authorizing department of environmental
protection to promulgate legislative rule relating to prevention
and control of air pollution from hazardous waste treatment,
storage or disposal facilities.
Senate Bill No. 387, Authorizing division of natural resources
to promulgate legislative rule relating to revocation of hunting
and fishing licenses.
And,
Senate Bill No. 388, Authorizing division of natural resources
to promulgate legislative rule relating to special motorboating
regulations.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on the Judiciary.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 380, Authorizing lottery commission to
promulgate legislative rule relating to state lottery.
Senate Bill No. 381, Authorizing lottery commission to
promulgate legislative rule relating to limited video lottery.
And,
Senate Bill No. 400, Authorizing tax commissioner to
promulgate legislative rule relating to alternative resolution of
tax disputes.
And reports the same back with the recommendation that they
each do pass; but under the original double committee references
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Walt Helmick,
Chair.
The bills, under the original double committee references,
were then referred to the Committee on the Judiciary.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 386, Authorizing division of natural resources
to promulgate legislative rule relating to public land corporation
rule controlling sale, lease, exchange or transfer of land and
minerals.
And reports the same back with the recommendation that it do
pass; but under the original triple committee reference first be
referred to the Committee on Finance; and then to the Committee on
the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
The bill, under the original triple committee reference, was
referred to the Committee on Finance; and then to the Committee on
the Judiciary.
Senator Fanning, from the Committee on Natural Resources,
submitted the following report, which was received:
Your Committee on Natural Resources has had under
consideration
Senate Bill No. 389, Authorizing division of natural resources
to promulgate legislative rule relating to special fishing.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
The bill, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Natural Resources pending.
The Senate proceeded to the fifth order of business.
Senator Kessler, from the committee of conference on matters
of disagreement between the two houses, as to
Eng. Senate Bill No. 166, Reducing allowable blood alcohol
content for DUI.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the House to Engrossed Senate
Bill No. 166 having met, after full and free conference, have
agreed to recommend and do recommend to their respective houses, as
follows:
That both houses recede from their respective positions as to
the amendment of the House of Delegates, striking out everything
after the enacting clause, and agree to the same as follows:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §8-11-1b; that §17B-4-3
of said code be amended and reenacted; that §17C-5-2, §17C-5-6a and
§17C-5-8 of said code be amended and reenacted; that §17C-5A-1,
§17C-5A-1a, §17C-5A-2 and §17C-5A-3a of said code be amended and
reenacted; that §20-7-18 and §20-7-18b of said code be amended and
reenacted; that §33-6A-1 of said code be amended and reenacted;
that said code be amended by adding thereto a new section, designated §50-3-2b; and that said code be amended by adding
thereto a new section, designated §59-1-11a, all to read as
follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 11. POWERS AND DUTIES WITH RESPECT TO ORDINANCES AND
ORDINANCE PROCEDURES.
§8-11-1b. Additional costs in certain criminal proceedings.
(a) In each criminal case before a mayor or in the municipal
court of a municipality in which the defendant is convicted,
whether by plea or at trial, under the provisions of a municipal
ordinance which has the same elements as an offense described in
section two, article five, chapter seventeen-c of this code or
section eighteen-b, article seven, chapter twenty of this code,
there shall be imposed, in addition to other costs, fines,
forfeitures or penalties as may be allowed by law, costs in the
amount of fifty-five dollars. The clerk of each municipal court,
or other person designated to receive fines and costs, shall, for
purposes of further defraying the cost to the municipality of
enforcing the provisions of the ordinance or ordinances described
in this section and related provisions, deposit these moneys in the
general revenue fund of the municipality. The provisions of this
section shall be effective after the thirtieth day of June, two
thousand four.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATIONS OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving while license revoked for driving under the influence of
alcohol, controlled substances or drugs, or while having
alcoholic concentration in the blood of eight hundredths of
one percent or more, by weight, or for refusing to take
secondary chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of
this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended or revoked by this state or any other
jurisdiction is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the second
offense, the person is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a
period of ten days and, in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than five
hundred dollars; for the third or any subsequent offense, the
person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for six months and,
in addition to the mandatory jail sentence, shall be fined not less
than one hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or for driving while
having an alcoholic concentration in his or her blood of ten eight hundredths of one percent or more, by weight, or for refusing to
take a secondary chemical test of blood alcohol content, is, for
the first offense, guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for six
months and in addition to the mandatory jail sentence, shall be
fined not less than one hundred dollars nor more than five hundred
dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for a period of one year and, in addition
to the mandatory jail sentence, shall be fined not less than one
thousand dollars nor more than three thousand dollars; for the
third or any subsequent offense, the person is guilty of a felony
and, upon conviction thereof, shall be imprisoned in the
penitentiary a state correctional facility for not less than one
year nor more than three years and, in addition to the mandatory
prison sentence, shall be fined not less than three thousand
dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section upon
a charge of driving a vehicle while the license of such person was
lawfully suspended or revoked, the division shall extend the period
of such suspension or revocation for an additional period of one
year from and after the date such person would otherwise have been
entitled to apply for a new license. Upon receiving a record of
the second or subsequent conviction of any person under subsection
(a) of this section upon a charge of driving a vehicle while the license of such person was lawfully suspended or revoked, the
division shall extend the period of such suspension or revocation
for an additional period of one year from and after the date such
person would otherwise have been entitled to apply for a new
license.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended for driving while under the age of
twenty-one years with 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, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for twenty-four hours or shall be fined not
less than fifty dollars nor more than five hundred dollars, or
both.
(e) 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.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
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 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 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 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 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
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, 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 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 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) For purposes of subsections (j) and (k) 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 this section or under a 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 within the ten-year
period immediately preceding the date of arrest in the current
proceeding;
(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) (2) 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 within the ten-year
period immediately preceding the date of arrest in the current
proceeding.
(m) 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 period 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) 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) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) 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 of said chapter 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.
§17C-5-6a. Taking a child into custody; driving a motor vehicle
with any amount of blood alcohol.
(a) A preliminary breath analysis may be administered to a
child whenever a law-enforcement official has reasonable cause to
believe the child to have been driving a motor vehicle with any
amount of alcohol in his or her blood for the purpose of
determining the child's blood alcohol content. Such breath
analysis must be administered as soon as possible after the
law-enforcement officer arrives at a reasonable belief that the
child has been driving a motor vehicle with any amount of alcohol
in his or her blood. Any preliminary breath analysis administered
pursuant to this subsection must be administered with a device and
in a manner approved by the division of health for that purpose.
If a preliminary breath analysis is administered, the results shall
be used solely for the purpose of guiding the officer in deciding
whether the child, at the time of driving the motor vehicle, had an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, and should, therefore, be taken into
custody to administer a secondary test in accordance with the
provisions of this section.
(b) A child may be taken into custody by a law-enforcement
official without a warrant or court order if the official has reasonable grounds to believe the child to have been driving a
motor vehicle with any amount of alcohol in his or her blood. If
a preliminary breath analysis is administered and the results of
the analysis indicate that the child has an alcohol concentration
in his or her blood of less than two hundredths of one percent, by
weight, the child may not be taken into custody unless other
grounds exist under subsection (b), section eight, article five,
chapter forty-nine of this code. Upon taking a child into custody
pursuant to the provisions of this section, the official shall take
all reasonable steps to cause notification to be made to the
child's parent or custodian or, if the parent or custodian cannot
be located, to a close relative.
(c) Upon taking a child into custody pursuant to this section,
the official shall take the child to a facility where a secondary
test of the child's blood or urine may be administered at the
direction of the official or a test of the child's breath may be
administered by the official. The law-enforcement agency by which
such law-enforcement official is employed shall designate whether
the secondary test is a test of either blood, breath or urine:
Provided, That if the test so designated is a blood test and the
child refuses to submit to the blood test, then the law-enforcement
official taking the child into custody shall designate in lieu
thereof a breath test to be administered. Notwithstanding the
provisions of section seven of this article, a refusal to submit to
a blood test only shall not result in the revocation of the child's
license to operate a motor vehicle in this state. Any child taken into custody pursuant to this section shall be given a written
statement advising him or her that a refusal to submit to a
secondary test of either blood, breath or urine, as finally
designated by the law-enforcement agency or official in accordance
with this subsection, will result in the suspension of his or her
license to operate a motor vehicle in this state for a period of at
least thirty days or a revocation of the license for a period up to
life.
(d) If the law-enforcement official taking the child into
custody is employed by a law-enforcement agency which does not have
available the testing equipment or facilities necessary to conduct
any secondary breath test which may be administered pursuant to the
provisions of this section, then the official who took the child
into custody may request another qualified person to administer a
secondary breath test: Provided, That the breath test shall be
administered in the presence of the official who took the child
into custody. The results of such breath test may be used in
evidence to the same extent and in the same manner as if such test
had been conducted by the law-enforcement official who took the
child into custody. The qualified person administering the breath
test must be a member of the division of public safety [West
Virginia state police], the sheriff of the county wherein the child
was taken into custody or any deputy of such sheriff or a
law-enforcement official of another municipality within the county
wherein the child was taken into custody. Only the person actually
administering the secondary breath test is competent to testify as to the results and the veracity of the test. If the secondary test
is a blood test, the test shall be conducted in accordance with the
provisions of section six of this article.
(e) After taking the child into custody, if the
law-enforcement official has reasonable cause to believe that the
act of the child in driving the motor vehicle is such that it would
provide grounds for arrest for an offense defined under the
provisions of section two of this article if the child were an
adult, then the official shall proceed to treat the child in the
same manner as any other child taken into custody without a warrant
or court order, in accordance with the provisions of section eight
of this article.
(f) If the results of any secondary test administered pursuant
to this section indicate that the child, at the time of driving the
motor vehicle, had an alcohol concentration in his or her blood of
ten eight hundredths of one percent or less, by weight, and if the
law-enforcement official does not have reasonable cause to believe
that the act of the child in driving the motor vehicle is such that
it would provide grounds for arrest for an offense defined under
the provisions of section two of this article if the child were an
adult, then the official shall release the child: Provided, That
if the results of any secondary test administered pursuant to this
section indicate that the child, at the time of driving the motor
vehicle, had an alcohol concentration in his or her blood of two
hundredths of one percent or more, by weight, the child shall only
be released to a parent or custodian, or to some other responsible adult.
§17C-5-8. Interpretation and use of chemical test.
(a) 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. The evidence gives rise to the following presumptions or
has the following effect:
(1) Evidence that there was, at that time, five hundredths of
one percent or less, by weight, of alcohol in his or her blood, is
prima facie evidence that the person was not under the influence of
alcohol;
(2) Evidence that there was, at that time, more than five
hundredths of one percent and less than ten eight hundredths of one
percent, by weight, of alcohol in the person's blood is relevant
evidence, but it is not to be given prima facie effect in
indicating whether the person was under the influence of alcohol;
(3) Evidence that there was, at that time, ten eight
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.
(b) 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;
(3) The number of grams of alcohol per sixty-seven milliliters
of urine; or
(4) The number of grams of alcohol per eighty-six milliliters
of serum.
(c) 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 subsection (a) 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 West Virginia state
police.
(d) The provisions of this article do 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.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1. Implied consent to administrative procedure; revocation
for driving under the influence of alcohol, controlled
substances or refusal to submit to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be revoked
because he or she did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or combined
influence of alcohol or controlled substances or drugs, or did
drive a motor vehicle while having an alcoholic concentration in
his or her blood of ten eight hundredths of one percent or more, by
weight, or did refuse to submit to any designated secondary
chemical test, or did drive a motor vehicle while under the age of
twenty-one years with 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.
(b) Any law-enforcement officer arresting a person for an
offense described in section two, article five of this chapter or
for an offense described in a municipal ordinance which has the
same elements as an offense described in said section shall report
to the commissioner of the division of motor vehicles by written statement within forty-eight hours the name and address of the
person so arrested. The report shall include the specific offense
with which the person is charged and, if applicable, a copy of the
results of any secondary tests of blood, breath or urine. The
signing of the statement required to be signed by this subsection
shall constitute an oath or affirmation by the person signing the
statement that the statements contained therein are true and that
any copy filed is a true copy. The statement shall contain upon its
face a warning to the officer signing that to willfully sign a
statement containing false information concerning any matter or
thing, material or not material, is false swearing and is a
misdemeanor.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this
section, the commissioner shall determine that a person was
arrested for an offense described in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said
section, and that the results of any secondary test or tests
indicate that at the time the test or tests were administered the
person had, in his or her blood, an alcohol concentration of ten
eight hundredths of one percent or more, by weight, or at the time
the person was arrested he or she was under the influence of
alcohol, controlled substances or drugs, the commissioner shall
make and enter an order revoking the person's license to operate a
motor vehicle in this state. If the results of the tests indicate that at the time the test or tests were administered the person was
under the age of twenty-one years and had 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, the commissioner shall make and enter an order suspending
the person's license to operate a motor vehicle in this state. A
copy of the order shall be forwarded to the person by registered or
certified mail, return receipt requested, and shall contain the
reasons for the revocation or suspension and describe the
applicable revocation or suspension periods provided for in section
two of this article. No revocation or suspension shall become
effective until ten days after receipt of a copy of the order.
(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this chapter
who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or
her blood of two hundredths of one percent or more, by weight, or
that the act of the child in driving the motor vehicle was such
that it would provide grounds for arrest for an offense defined
under the provisions of section two of said article if the child
were an adult, shall report to the commissioner of the division of
motor vehicles by written statement within forty-eight hours the
name and address of the child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult, and a copy of the results of any secondary tests of blood, breath or urine. The signing of the
statement required to be signed by this subsection shall constitute
an oath or affirmation by the person signing such statement that
the statements contained therein are true and that any copy filed
is a true copy. Such statement shall contain upon its face a
warning to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing,
material or not material, is false swearing and is a misdemeanor.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this section,
if the commissioner determines that the results of the tests
indicate that at the time the test or tests were administered the
child had, in his or her blood, an alcohol concentration of two
hundredths of one percent or more, by weight, but also determines
that the act of the child in driving the motor vehicle was not such
that it would provide grounds for arrest for an offense defined
under the provisions of subsection (a), (b), (c), (d), (e), (f) or
(g), section two, article five of this chapter if the child were an
adult, the commissioner shall make and enter an order suspending
the child's license to operate a motor vehicle in this state. If
the commissioner determines that the act of the child in driving
the motor vehicle was such that it would provide grounds for arrest
for an offense defined under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g), section two, article five of this
chapter if the child were an adult, the commissioner shall make and
enter an order revoking the child's license to operate a motor vehicle in this state. A copy of such order shall be forwarded to
the child by registered or certified mail, return receipt
requested, and shall contain the reasons for the suspension or
revocation and describe the applicable suspension or revocation
periods provided for in section two of this article. No suspension
or revocation shall become effective until ten days after receipt
of a copy of such order.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or drugs.
(a) If a person is convicted for an offense defined in section
two, article five of this chapter or for an offense described in a
municipal ordinance which has the same elements as an offense
described in said section because the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or the combined influence of alcohol or controlled
substances or drugs, or did drive a motor vehicle while having an
alcoholic concentration in his or her blood of ten eight hundredths
of one percent or more, by weight, or did drive a motor vehicle
while under the age of twenty-one years with 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, and if the person does not act to appeal the
conviction within the time periods described in subsection (b) of
this section, the person's license to operate a motor vehicle in
this state shall be revoked or suspended in accordance with the
provisions of this section.
(b) The clerk of the court in which a person is convicted for
an offense described in section two, article five of this chapter
or for an offense described in a municipal ordinance which has the
same elements as an offense described in said section shall forward
to the commissioner a transcript of the judgment of conviction. If
the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward the transcript when the person
convicted has not requested an appeal within twenty days of the
sentencing for such conviction. If the conviction is the judgment
of a mayor or police court judge or municipal court judge, the
clerk or recorder shall forward the transcript when the person
convicted has not perfected an appeal within ten days from and
after the date upon which the sentence is imposed. If the
conviction is the judgment of a circuit court, the circuit clerk
shall forward the transcript when the person convicted has not
filed a notice of intent to file a petition for appeal or writ of
error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted for an offense described in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said section
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the
combined influence of alcohol or controlled substances or drugs, or
did drive a motor vehicle while having an alcoholic concentration in his or her blood of ten eight hundredths of one percent or more,
by weight, the commissioner shall make and enter an order revoking
the person's license to operate a motor vehicle in this state. If
the commissioner determines that the person was convicted of
driving a motor vehicle while under the age of twenty-one years
with 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, the commissioner shall make
and enter an order suspending the person's license to operate a
motor vehicle in this state. The order shall contain the reasons
for the revocation or suspension and the revocation or suspension
periods provided for in section two of this article. Further, the
order shall give the procedures for requesting a hearing which is
to be held in accordance with the provisions of said section. The
person shall be advised in the order that because of the receipt of
a transcript of the judgment of conviction by the commissioner a
presumption exists that the person named in the transcript of the
judgment of conviction is the person named in the commissioner's
order and such constitutes sufficient evidence to support
revocation or suspension and that the sole purpose for the hearing
held under this section is for the person requesting the hearing to
present evidence that he or she is not the person named in the
transcript of the judgment of conviction. A copy of the order
shall be forwarded to the person by registered or certified mail,
return receipt requested. No revocation or suspension shall become
effective until ten days after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order
reinstating the operator's license of the person has been entered
by the commissioner prior to the receipt of the transcript of the
judgment of conviction.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
under the provisions of section one of this article or section
seven, article five of this chapter, the commissioner of the
division of motor vehicles shall stay the imposition of the period
of revocation or suspension and afford the person an opportunity to
be heard. The written request must be filed with the commissioner
in person or by registered or certified mail, return receipt
requested, within thirty calendar days after receipt of a copy of
the order of revocation or suspension or no hearing will be
granted. The hearing shall be before the commissioner or a hearing
examiner retained by the commissioner who shall rule on evidentiary
issues and submit proposed findings of fact and conclusions of law
for the consideration of the commissioner and all of the pertinent
provisions of article five, chapter twenty-nine-a of this code
shall apply. The hearing shall be held at an office of the
division located in or near the county wherein the arrest was made
in this state or at some other suitable place in the county wherein the arrest was made if an office of the division is not available.
(b) Any such hearing shall be held within one hundred eighty
days after the date upon which the commissioner received the timely
written request therefor unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing
on the commissioner's own motion or upon application for each
person for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any such hearing on the
commissioner's own motion or for the benefit of any law-enforcement
officer or any person requesting the hearing, and such policies
shall be enforced and applied to all parties equally. For the
purpose of conducting the hearing, the commissioner shall have the
power and authority to issue subpoenas and subpoenas duces tecum in
accordance with the provisions of section one, article five,
chapter twenty-nine-a of this code: Provided, That the notice of
hearing to the appropriate law-enforcement officers by registered
or certified mail, return receipt requested, shall constitute a
subpoena to appear at the hearing without the necessity of payment
of fees by the division of motor vehicles.
(c) Law-enforcement officers shall be compensated for the time
expended in their travel and appearance before the commissioner by
the law-enforcement agency by whom they are employed at their
regular rate if they are scheduled to be on duty during said time
or at their regular overtime rate if they are scheduled to be off
duty during said time.
(d) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's blood
of ten eight hundredths of one percent or more, by weight, or did
refuse to submit to the designated secondary chemical test, or did
drive a motor vehicle while under the age of twenty-one years with
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.
The commissioner may propose a legislative rule in compliance
with the provisions of article three, chapter twenty-nine-a of this
code, which rule may provide that if a person accused of driving a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or accused of driving a motor vehicle while
having an alcohol concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, or accused of driving
a motor vehicle while under the age of twenty-one years with 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, intends to challenge the results of any
secondary chemical test of blood, breath or urine, or intends to
cross-examine the individual or individuals who administered the
test or performed the chemical analysis, the person shall, within
an appropriate period of time prior to the hearing, notify the
commissioner in writing of such intention. The rule may provide that when there is a failure to comply with the notice requirement,
the results of the secondary test, if any, shall be admissible as
though the person and the commissioner had stipulated the
admissibility of such evidence. Any such rule shall provide that
the rule shall not be invoked in the case of a person who is not
represented by counsel unless the communication from the
commissioner to the person establishing a time and place for the
hearing also informed the person of the consequences of the
person's failure to timely notify the commissioner of the person's
intention to challenge the results of the secondary chemical test
or cross-examine the individual or individuals who administered the
test or performed the chemical analysis.
(e) In the case of a hearing wherein a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's blood
of ten eight hundredths of one percent or more, by weight, or
accused of driving a motor vehicle while under the age of
twenty-one years with 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, the commissioner
shall make specific findings as to: (1) Whether the arresting
law-enforcement officer had reasonable grounds to believe the
person to have been driving while under the influence of alcohol,
controlled substances or drugs, or while having an alcohol
concentration in the person's blood of ten eight hundredths of one percent or more, by weight, or to have been driving a motor vehicle
while under the age of twenty-one years with 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; (2) whether the person was lawfully placed
under arrest for an offense involving driving under the influence
of alcohol, controlled substances or drugs, or was lawfully taken
into custody for the purpose of administering a secondary test; and
(3) whether the tests, if any, were administered in accordance with
the provisions of this article and article five of this chapter.
(f) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of ten eight hundredths
of one percent or more, by weight, or did drive a motor vehicle
while under the age of twenty-one years with 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, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused the death of a person and was
committed in reckless disregard of the safety of others, and if the
commissioner further finds that the influence of alcohol,
controlled substances or drugs or the alcohol concentration in the
blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of ten years: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be for the life of
the person.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of ten eight hundredths
of one percent or more, by weight, the commissioner also finds by
a preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person, the
commissioner shall revoke the person's license for a period of five
years: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this
section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(h) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of ten eight hundredths
of one percent or more, by weight, the commissioner also finds by
a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused bodily injury to a person
other than himself or herself, the commissioner shall revoke the
person's license for a period of two years: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of ten eight hundredths of one percent or more, by
weight, or finds that the person, being an habitual user of
narcotic drugs or amphetamine or any derivative thereof, did drive
a motor vehicle, or finds that the person knowingly permitted the
person's vehicle to be driven by another person who was under the
influence of alcohol, controlled substances or drugs, or knowingly
permitted the person's vehicle to be driven by another person who
had an alcohol concentration in his or her blood of ten eight
hundredths of one percent or more, by weight, the commissioner shall revoke the person's license for a period of six months:
Provided, That if the commissioner has previously suspended or
revoked the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be ten
years: Provided, however, That if the commissioner has previously
suspended or revoked the person's license more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(j) If, in addition to a finding that the person did drive a
motor vehicle while under the age of twenty-one years with 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, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person, and
if the commissioner further finds that the alcohol concentration in
the blood was a contributing cause to the death, the commissioner
shall revoke the person's license for a period of five years:
Provided, That if the commissioner has previously suspended or
revoked the person's license under the provisions of this section
or section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(k) If, in addition to a finding that the person did drive a
motor vehicle while under the age of twenty-one years with 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, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused bodily injury to a person
other than himself or herself, and if the commissioner further
finds that the alcohol concentration in the blood was a
contributing cause to the bodily injury, the commissioner shall
revoke the person's license for a period of two years: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be ten years:
Provided, however, That if the commissioner has previously
suspended or revoked the person's license more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(l) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
age of twenty-one years with 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, the commissioner shall suspend the person's license for a period of
sixty days: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article, the period of
revocation shall be for one year, or until the person's
twenty-first birthday, whichever period is longer.
(m) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of ten eight hundredths
of one percent or more, by weight, the commissioner also finds by
a preponderance of the evidence that the person when so driving did
have on or within the motor vehicle another person who has not
reached his or her sixteenth birthday, the commissioner shall
revoke the person's license for a period of one year: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be ten years:
Provided, however, That if the commissioner has previously
suspended or revoked the person's license more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(n) For purposes of this section, where reference is made to
previous suspensions or revocations under this section, the following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest.
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another 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 section two, article five
of this chapter, for conduct which occurred within the ten years
immediately preceding the date of arrest.
(3) Any revocation under the provisions of section seven,
article five of this chapter, for conduct which occurred within the
ten years immediately preceding the date of arrest.
(o) In the case of a hearing wherein a person is accused of
refusing to submit to a designated secondary test, the commissioner
shall make specific findings as to: (1) Whether the arresting
law-enforcement officer had reasonable grounds to believe the
person had been driving a motor vehicle in this state while under
the influence of alcohol, controlled substances or drugs; (2)
whether the person was lawfully placed under arrest for an offense
relating to driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or drugs; (3) whether
the person refused to submit to the secondary test finally
designated in the manner provided in section four, article five of this chapter; and (4) whether the person had been given a written
statement advising the person that the person's license to operate
a motor vehicle in this state would be revoked for at least one
year and up to life if the person refused to submit to the test
finally designated in the manner provided in said section.
(p) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement officer had
reasonable grounds to believe the person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (2) the person was lawfully placed
under arrest for an offense relating to driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs; (3) the person refused to submit to the
secondary chemical test finally designated; and (4) the person had
been given a written statement advising the person that the
person's license to operate a motor vehicle in this state would be
revoked for a period of at least one year and up to life if the
person refused to submit to the test finally designated, the
commissioner shall revoke the person's license to operate a motor
vehicle in this state for the periods specified in section seven,
article five of this chapter. The revocation period prescribed in
this subsection shall run concurrently with any other revocation
period ordered under this section or section one of this article
arising out of the same occurrence.
(q) If the commissioner finds to the contrary with respect to
the above issues, the commissioner shall rescind his or her earlier order of revocation or shall reduce the order of revocation to the
appropriate period of revocation under this section or section
seven, article five of this chapter.
A copy of the commissioner's order made and entered following
the hearing shall be served upon the person by registered or
certified mail, return receipt requested. During the pendency of
any such hearing, the revocation of the person's license to operate
a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation, the
person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay
enforcement of the order. The court may grant a stay or supersede
as of the order only upon motion and hearing, and a finding by the
court upon the evidence presented, that there is a substantial
probability that the appellant shall prevail upon the merits, and
the appellant will suffer irreparable harm if the order is not
stayed: Provided, That in no event shall the stay or supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the transcript of the hearing to the circuit court in less than
sixty days.
(r) In any revocation or suspension pursuant to this section,
if the driver whose license is revoked or suspended had not reached
the driver's eighteenth birthday at the time of the conduct for which the license is revoked or suspended, the driver's license
shall be revoked or suspended until the driver's eighteenth
birthday or the applicable statutory period of revocation or
suspension prescribed by this section, whichever is longer.
(s) Funds for this section's hearing and appeal process may be
provided from the drunk driving prevention fund, as created by
section forty-one, article two, chapter fifteen of this code, upon
application for such funds to the commission on drunk driving
prevention.
§17C-5A-3a. Establishment of and participation in the motor
vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate
a motor vehicle alcohol test and lock program for persons whose
licenses have been revoked pursuant to this article or the
provisions of article five of this chapter. Such program shall
include the establishment of a users' fee for persons participating
in the program which shall be paid in advance and deposited into
the driver's rehabilitation fund. Except where specified
otherwise, the use of the term "program" in this section refers to
the motor vehicle alcohol test and lock program. The commissioner
of the division of motor vehicles shall propose legislative rules
for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code for the purpose of implementing the
provisions of this section. Such rules shall also prescribe those
requirements which, in addition to the requirements specified by
this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's
approval to operate a motor vehicle equipped with a motor vehicle
alcohol test and lock system. For purposes of this section, a
"motor vehicle alcohol test and lock system" means a mechanical or
computerized system which, in the opinion of the commissioner,
prevents the operation of a motor vehicle when, through the
system's assessment of the blood alcohol content of the person
operating or attempting to operate the vehicle, such person is
determined to be under the influence of alcohol.
(b) (1) Any person whose license has been revoked pursuant to
this article or the provisions of article five of this chapter is
eligible to participate in the program when such person's minimum
revocation period as specified by subsection (c) of this section
has expired and such person is enrolled in or has successfully
completed the safety and treatment program or presents proof to the
commissioner within sixty days of receiving approval to participate
by the commissioner that he or she is enrolled in a safety and
treatment program: Provided, That no person whose license has been
revoked pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (a) or (b),
section two, article five of this chapter, or pursuant to the
provisions of subsection (f) or (g), section two of this article,
shall be eligible for participation in the program: Provided,
however, That any person whose license is revoked pursuant to this
article or pursuant to article five of this chapter for an act
which occurred either while participating in or after successfully completing the program shall not again be eligible to participate
in such program.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article for
driving a motor vehicle while under the age of twenty-one years
with 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, is eligible to participate in
the program after thirty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect: Provided, That in the case of a person under the age of
eighteen, the person shall be eligible to participate in the
program after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in
effect, or after the person's eighteenth birthday, whichever is
later. Before the commissioner approves a person to operate a
motor vehicle equipped with a motor vehicle alcohol test and lock
system, the person must agree to thereafter comply with the
following conditions:
(A) If not already enrolled, the person will enroll in and
complete the educational program provided for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational program, any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program shall
operate a motor vehicle unless approved to do so by the
commissioner.
(c) For purposes of this section, "minimum revocation period"
means the portion which has actually expired of the period of
revocation imposed by the commissioner pursuant to this article or
the provisions of article five of this chapter upon a person
eligible for participation in the program as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in section
two, article five of this chapter, or pursuant to subsection (i),
section two of this article, the minimum period of revocation
before such person is eligible for participation in the test and
lock program is thirty days, and the minimum period for the use of
the ignition interlock device is five months, or that period
described in subdivision (1), subsection (e) of this section,
whichever period is greater;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
refusal to submit to a designated secondary chemical test, the
minimum period of revocation before such person is eligible for
participation in the test and lock program is thirty days, and the minimum period for the use of the ignition interlock device is nine
months, or the period set forth in subdivision (1), subsection (e)
of this section, whichever period is greater;
(3) For a person whose license has been revoked for a second
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in section two, article five
of this chapter, or pursuant to section two of this article, the
minimum period of revocation before such person is eligible for
participation in the test and lock program is nine months, and the
minimum period for the use of the ignition interlock device is
eighteen months, or that period set forth in subdivision (2),
subsection (e) of this section, whichever period is greater;
(4) For a person whose license has been revoked for any other
period of time pursuant to the provisions of section one-a of this
article for conviction of an offense defined in section two,
article five of this chapter, or pursuant to section two of this
article or pursuant to section seven, article five of this chapter,
the minimum period of revocation is eighteen months, and the
minimum period for the use of the ignition interlock device is two
years, or that period set forth in subdivision (3), subsection (e)
of this section, whichever period is greater;
(5) An applicant for the test and lock program must not have
been convicted of any violation of section three, article four,
chapter seventeen-b of this code, for driving while the applicant's
driver's license was suspended or revoked, within the two-year
period preceding the date of application for admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals
in the test and lock program an additional device or devices if
such is necessary for employment purposes.
(d) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to such person, and such
person shall be required to exhibit on demand, a driver's license
which shall reflect that such person is restricted to the operation
of a motor vehicle which is equipped with an approved motor vehicle
alcohol test and lock system.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the restoration
of such person's driver's license upon the expiration of:
(1) One hundred eighty days of the full revocation period
imposed by the commissioner for a person described in subdivision
(1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for
a person described in subdivision (3), subsection (c) of this
section;
(3) One year from the date a person described in subdivision
(4), subsection (c) of this section is permitted to operate a motor
vehicle by the commissioner.
(f) A person whose license has been suspended pursuant to the
provisions of subsection (l), section two of this article who has completed the educational program, and who has not violated the
terms required by the commissioner of such person's participation
in the motor vehicle alcohol test and lock program shall be
entitled to the reinstatement of his or her driver's license six
months from the date the person is permitted to operate a motor
vehicle by the commissioner. When a license has been reinstated
pursuant to this subsection, the records ordering the suspension,
records of any administrative hearing, records of any blood alcohol
test results and all other records pertaining to the suspension
shall be expunged by operation of law: Provided, That a person
shall be entitled to expungement under the provisions of this
subsection only once. The expungement shall be accomplished by
physically marking the records to show that such records have been
expunged and by securely sealing and filing the records.
Expungement shall have the legal effect as if the suspension never
occurred. The records shall not be disclosed or made available for
inspection and, in response to a request for record information,
the commissioner shall reply that no information is available.
Information from the file may be used by the commissioner for
research and statistical purposes so long as the use of such
information does not divulge the identity of the person.
(g) In addition to any other penalty imposed by this code, any
person who operates a motor vehicle not equipped with an approved
motor vehicle alcohol test and lock system during such person's
participation in the motor vehicle alcohol test and lock program is
guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than
one month nor more than six months and fined not less than one
hundred dollars nor more than five hundred dollars. Any person who
assists another person required by the terms of such other person's
participation in the motor vehicle alcohol test and lock program to
use a motor vehicle alcohol test and lock system in any effort to
bypass the system is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail not more
than six months and fined not less than one hundred dollars nor
more than one thousand dollars: Provided, That notwithstanding any
provision of this code to the contrary, a person enrolled and
participating in the test and lock program may operate a motor
vehicle solely at his or her job site if such is a condition of his
or her employment.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTOR BOATING, LITTER.
§20-7-18. Care in handling watercraft; duty to render aid after a
collision, accident or casualty accident reports.
(a) No person shall operate a motorboat, jet ski or other
motorized vessel or manipulate any water skis, surfboard or similar
device in a reckless or negligent manner so as to endanger the
life, limb or property of any person.
(b) No person shall operate any motorboat, jet ski or other
motorized vessel, or manipulate any water skis, surfboard or
similar device while under the influence of alcohol or a controlled
substance or drug, under the combined influence of alcohol and any controlled substance or any other drug, or while having an alcohol
concentration in his or her blood of ten eight hundredths of one
percent or more, by weight.
(c) It shall be the duty of the operator of a vessel involved
in a collision, accident or other casualty, so far as he or she can
do so without serious danger to his or her own vessel, crew and
passengers (if any), to render to other persons affected by the
collision, accident or other casualty such assistance as may be
practicable and as may be necessary in order to save them from or
minimize any danger caused by the collision, accident or other
casualty, and also to give his or her name, address and
identification of his or her vessel in writing to any person
injured and to the owner of any property damaged in the collision,
accident or other casualty.
(d) The operator of a vessel involved in a collision, accident
or other casualty shall file an accident report with the director
if the incident results in a loss of life, in a personal injury
that requires medical treatment beyond first aid or in excess of
five hundred dollars damage to a vessel or other property. The
report shall be made on such forms and contain information as
prescribed by the director. Upon a request duly made by an
authorized official or agency of the United States, any information
compiled or otherwise available to the director pursuant to this
subsection shall be transmitted to the official or agency.
§20-7-18b. Operating under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in
this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, 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 the 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) Operates a motorboat, jet ski or other motorized vessel in
this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, 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) Operates a motorboat, jet ski or other motorized vessel in
this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood
of ten eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, 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 shall
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) Operates a motorboat, jet ski or other motorized vessel in
this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she 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 shall 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, operates a motorboat, jet
ski or other motorized vessel 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 shall 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 motorboat, jet ski or other
motorized vessel to be operated in this state by any other person
who is:
(A) Under the influence of alcohol; or
(B) Under the influence of any controlled substance; or
(C) Under the influence of any other drug; or
(D) 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 motorboat, jet ski or other motorized
vessel to be operated 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 operates
a motorboat, jet ski or other motorized vessel 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, shall, for a first
offense under this subsection, be 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, such 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 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) Operates a motorboat, jet ski or other motorized vessel in
this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she 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 operating has on or within the
motorboat, jet ski or other motorized vessel one or more other
persons who are unemancipated minors who have not reached their
sixteenth birthday, shall be 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 shall 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 a
period of 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 shall, for the third or
any subsequent offense under this section, be guilty of a felony
and, upon conviction thereof, shall be imprisoned in the 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) For purposes of subsections (j) and (k) of this section
relating to second, third and subsequent offenses, the following
types of convictions shall be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of this section for an offense which
occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a) or
(b) of this section for an offense which occurred within a period
of five years immediately preceding the date of the offense; 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 effective date of this
section.
(m) 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. The warrant or indictment or
information shall 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) 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 operate 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 shall not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" shall have the meaning ascribed to it in chapter sixty-a
of this code.
(p) 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 of said chapter may be used as an alternative sentence to any period of incarceration required by this section.
CHAPTER 33. INSURANCE.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-1. Cancellation prohibited except for specified reasons;
notice.
No insurer once having issued or delivered a policy providing
automobile liability insurance for a private passenger automobile
may, after the policy has been in effect for sixty days, or in case
of renewal effective immediately, issue or cause to issue a notice
of cancellation during the term of the policy except for one or
more of the reasons specified in this section:
(a) The named insured fails to make payments of premium for
the policy or any installment of the premium when due;
(b) The policy is obtained through material misrepresentation;
(c) The insured violates any of the material terms and
conditions of the policy;
(d) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under the policy:
(1) Has had his or her operator's license suspended or revoked
during the policy period including suspension or revocation for
failure to comply with the provisions of article five-a, chapter
seventeen-c of this code, regarding consent for a chemical test for
intoxication: Provided, That when a license is suspended for sixty
days by the commissioner of the division of motor vehicles because a person drove a motor vehicle while under the age of twenty-one
years with 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, pursuant to subsection
(l), section two of said article, the suspension shall not be
grounds for cancellation; or
(2) Is or becomes subject to epilepsy or heart attacks and the
individual cannot produce a certificate from a physician testifying
to his or her ability to operate a motor vehicle;
(e) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under such policy, is convicted of or forfeits bail during
the policy period for any of the following reasons:
(1) Any felony or assault involving the use of a motor
vehicle;
(2) Negligent homicide arising out of the operation of a motor
vehicle;
(3) Operating a motor vehicle while under the influence of
alcohol or of any controlled substance or while having an alcohol
concentration in his or her blood of ten eight hundredths of one
percent or more, by weight;
(4) Leaving the scene of a motor vehicle accident in which the
insured is involved without reporting it as required by law;
(5) Theft of a motor vehicle or the unlawful taking of a motor
vehicle;
(6) Making false statements in an application for a motor vehicle operator's license;
(7) Three or more moving traffic violations committed within
a period of twelve months, each of which results in three or more
points being assessed on the driver's record by the division of
motor vehicles, whether or not the insurer renewed the policy
without knowledge of all such violations. Notice of any
cancellation made pursuant to this subsection shall be mailed to
the named insured either during the current policy period or during
the first full policy period following the date that the third
moving traffic violation is recorded by the division of motor
vehicles.
Notwithstanding any of the provisions of this section to the
contrary, no insurer may cancel a policy of automobile liability
insurance without first giving the insured thirty days' notice of
its intention to cancel: Provided, That cancellation of the
insurance policy by the insurer for failure of consideration to be
paid by the insured upon initial issuance of the insurance policy
is effective upon the expiration of ten days' notice of
cancellation to the insured.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2b. Additional costs in certain criminal proceedings.
In each criminal case before a magistrate court in which the
defendant is convicted, whether by plea or at trial, under the
provisions of section two, article five, chapter seventeen-c of
this code or section eighteen-b, article seven, chapter twenty of this code, there shall be imposed, in addition to other costs,
fines, forfeitures or penalties as may be allowed by law, costs in
the amount of fifty-five dollars. A magistrate court shall, on or
before the tenth day of the month following the month in which the
costs imposed in this section were collected, remit an amount equal
to the amount from each of the criminal proceedings in which the
costs specified in this section were collected to the magistrate
court clerk or, if there is no magistrate court clerk, to the clerk
of the circuit, together with information as may be required by the
rules of the supreme court of appeals and the rules of the office
of chief inspector. At the end of each month, for purposes of
further defraying the cost to the county of enforcing the
provisions of section two, article five, chapter seventeen-c of
this code or section eighteen-b, article seven, chapter twenty of
this code and related provisions, these moneys shall be paid to the
sheriff of the county and deposited in the general revenue fund of
the county. The provisions of this section shall be effective after
the thirtieth day of June, two thousand four.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11a. Additional costs in certain criminal proceedings.
(a) Except as provided in subsections (b) and (c) of this
section, in each criminal case before a circuit court in which the
defendant is convicted, whether by plea or at trial, under the
provisions of section two, article five, chapter seventeen-c of this code or section eighteen-b, article seven, chapter twenty of
this code, there shall be imposed, in addition to other costs,
fines, forfeitures or penalties as may be allowed by law, costs in
the amount of fifty-five dollars. For purposes of further
defraying the cost to the county of enforcing the provisions of
section two, article five, chapter seventeen-c of this code or
section eighteen-b, article seven, chapter twenty of this code and
related provisions, the clerk of the circuit court shall, on or
before the tenth day of the month following the month in which the
costs imposed in this section were collected, remit an amount equal
to the amount from each of the criminal proceedings in which the
costs specified in this subsection were collected to the sheriff of
the county who shall deposit the same in the general revenue fund
of the county.
(b) In each criminal case before a circuit court upon appeal
from a magistrate court in which the defendant is convicted,
whether by plea or at trial in the circuit court, under the
provisions of section two, article five, chapter seventeen-c of
this code or section eighteen-b, article seven, chapter twenty of
this code, there shall be imposed, in addition to other costs,
fines, forfeitures or penalties as may be allowed by law, costs in
the amount of fifty-five dollars. For purposes of further
defraying the cost to the county of enforcing the provisions of
section two, article five, chapter seventeen-c of this code or
section eighteen-b, article seven, chapter twenty of this code and
related provisions, the clerk of the circuit court shall, on or before the tenth day of the month following the month in which the
costs imposed in this section were collected, remit an amount equal
to the amount from each of the criminal proceedings in which the
costs specified in this subsection were collected to the sheriff of
the county who shall deposit the same in the general revenue fund
of the county. The provisions of this subsection shall not require
payment of the costs imposed by this subsection to the circuit
court where the costs have been paid in the magistrate court.
(c) In each criminal case before a circuit court upon appeal
from a municipal proceeding in which the defendant is convicted,
whether by plea or at trial in the circuit court, under the
provisions of a municipal ordinance which has the same elements as
an offense described in section two, article five, chapter
seventeen-c of this code or section eighteen-b, article seven,
chapter twenty of this code, there shall be imposed, in addition to
other costs, fines, forfeitures or penalties as may be allowed by
law, costs in the amount of fifty-five dollars. For purposes of
further defraying the cost to the municipality of enforcing the
provisions of the ordinance or ordinances described in this
subsection and related provisions, the clerk of the circuit court
shall, on or before the tenth day of the month following the month
in which the costs imposed in this section were collected, remit an
amount equal to the amount from each of the criminal proceedings in
which the costs specified in this subsection were collected to the
clerk of the municipal court or other person designated to receive
fines and costs for the municipality from which the conviction was appealed who shall deposit these moneys in the general revenue fund
of the municipality. The provisions of this subsection shall not
require payment of the costs imposed by this subsection to the
circuit court where the costs have been paid to the clerk of the
municipal court or other person designated to receive fines and
costs for the municipality.
(d) The provisions of this section shall be effective after
the thirtieth day of June, two thousand four.;
And,
That both houses recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Senate Bill No. 166--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §8-11-1b; to amend and reenact §17B-4-3 of said code; to
amend and reenact §17C-5-2, §17C-5-6a and §17C-5-8 of said code; to
amend and reenact §17C-5A-1, §17C-5A-1a, §17C-5A-2 and §17C-5A-3a
of said code; to amend and reenact §20-7-18 and §20-7-18b of said
code; to amend and reenact §33-6A-1 of said code; to amend said
code by adding thereto a new section, designated §50-3-2b; and to
amend said code by adding thereto a new section, designated §59-1-
11a, all relating to driving a motor vehicle or operating a
motorized vessel while under the influence of alcohol, controlled
substances or drugs; limiting the prior offenses that can be used
to enhance sentences to those that occurred within the ten-year
period next preceding the date of arrest in the current proceeding;
and imposing additional costs on defendants convicted of offenses involving the driving of a motor vehicle or operating a motorized
vessel while under the influence of alcohol, controlled substances
or drugs for the use of counties and municipalities.
Respectfully submitted,
Jeffrey V. Kessler, Chair, Mike Ross, Jon Blair Hunter, Joseph
M. Minard,
Andy McKenzie, Conferees on the part of the Senate.
Kevin J. Craig, Chair, Virginia Mahan, Dave Pethtel, Joe
DeLong, Robert A. Schadler, Conferees on the part of the House of
Delegates.
Senator Kessler, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Kessler, the report was taken
up for immediate consideration and adopted.
Engrossed Senate Bill No. 166, as amended by the conference
report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were: Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 166) passed with its conference amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the sixth order of business.
On motions for leave, severally made, the following bills were
introduced, read by their titles, and referred to the appropriate
committees:
By Senator Minard:
Senate Bill No. 450--
A Bill to amend and reenact §33-15A-4,
§33-15A-5, §33-15A-6 and §33-15A-7 of the code of West Virginia,
1931, as amended; and to amend said code by adding thereto four new
sections, designated §33-15A-8, §33-15A-9, §33-15A-10 and §33-15A-
11, all relating to the regulation of long-term care insurance
policies; defining terms; establishing extraterritorial
jurisdiction; summarizing disclosure and performance standards for
long-term care insurance; instituting and regulating an
incontestability period; disclosing nonforfeiture benefits;
providing the commissioner authority to promulgate regulations;
defining severability; providing penalties; and establishing an
effective date.
Referred to the Committee on Banking and Insurance.
By Senators Bowman and Rowe:
Senate Bill No. 451--A Bill to amend and reenact §11A-3-49 of
the code of West Virginia, 1931, as amended, relating to
authorizing municipalities to purchase land at tax sales.
Referred to the Committee on Government Organization.
By Senators Sharpe and Minard:
Senate Bill No. 452--A Bill to amend and reenact §61-3-39h of
the code of West Virginia, 1931, as amended, relating to removing
the requirement that funds expended from the worthless check fund
to pay for additional deputy clerks be proportionate to the time
expended on worthless check cases.
Referred to the Committee on the Judiciary.
By Senators Sprouse and White:
Senate Bill No. 453--A Bill to amend and reenact §18A-2-3 of
the code of West Virginia, 1931, as amended, relating to the number
of days a substitute teacher may work.
Referred to the Committee on Education; and then to the
Committee on Finance.
By Senators Bowman, Minard, Kessler, McCabe, Rowe, Snyder,
Minear and McKenzie:
Senate Bill No. 454--
A Bill to repeal §8-24-1, §8-24-2, §8-24-
3, §8-24-4, §8-24-5, §8-24-6, §8-24-7, §8-24-8, §8-24-9, §8-24-10,
§8-24-11, §8-24-12, §8-24-13, §8-24-14, §8-24-15, §8-24-16, §8-24-
17, §8-24-18, §8-24-19, §8-24-20, §8-24-21, §8-24-22, §8-24-23, §8-
24-24, §8-24-25, §8-24-26, §8-24-27, §8-24-28, §8-24-29, §8-24-30,
§8-24-31, §8-24-32, §8-24-33, §8-24-34, §8-24-35, §8-24-36,
§8-24-37, §8-24-38, §8-24-39, §8-24-40, §8-24-41, §8-24-42,
§8-24-43, §8-24-44, §8-24-45, §8-24-46, §8-24-47, §8-24-48,
§8-24-49, §8-24-50, §8-24-50a, §8-24-50b, §8-24-51, §8-24-52,
§8-24-53, §8-24-54, §8-24-55, §8-24-56, §8-24-57, §8-24-58,
§8-24-59, §8-24-60, §8-24-61, §8-24-62, §8-24-63, §8-24-64,
§8-24-65, §8-24-66, §8-24-67, §8-24-68, §8-24-69, §8-24-70, §8-24-71, §8-24-72, §8-24-73, §8-24-73a, §8-24-73b, §8-24-73c, §8-24-73d,
§8-24-74, §8-24-74a, §8-24-74b, §8-24-74c, §8-24-75, §8-24-76, §8-
24-77, §8-24-78, §8-24-79, §8-24-80, §8-24-81, §8-24-82, §8-24-83,
§8-24-84 and §8-24-85 of the code of West Virginia, 1931, as
amended; and to amend said code by adding thereto a new chapter,
designated §8A-1-1, §8A-1-2, §8A-2-1, §8A-2-2, §8A-2-3, §8A-2-4,
§8A-2-5, §8A-2-6, §8A-2-7, §8A-2-8, §8A-2-9, §8A-2-10, §8A-2-11,
§8A-3-1, §8A-3-2, §8A-3-3, §8A-3-4, §8A-3-5, §8A-3-6, §8A-3-7, §8A-
3-8, §8A-3-9, §8A-3-10, §8A-3-11, §8A-3-12, §8A-3-13, §8A-3-14,
§8A-4-1, §8A-4-2, §8A-4-3, §8A-4-4, §8A-4-5, §8A-4-6, §8A-4-7, §8A-
5-1, §8A-5-2, §8A-5-3, §8A-5-4, §8A-5-5, §8A-5-6, §8A-5-7, §8A-5-8,
§8A-5-9, §8A-5-10, §8A-5-11, §8A-5-12, §8A-6-1, §8A-6-2, §8A-6-3,
§8A-7-1, §8A-7-2, §8A-7-3, §8A-7-4, §8A-7-5, §8A-7-6, §8A-7-7, §8A-
7-8, §8A-7-9, §8A-7-10, §8A-7-11, §8A-7-12, §8A-8-1, §8A-8-2, §8A-
8-3, §8A-8-4, §8A-8-5, §8A-8-6, §8A-8-7, §8A-8-8, §8A-8-9,
§8A-8-10, §8A-8-11, §8A-8-12, §8A-9-1, §8A-9-2, §8A-9-3, §8A-9-4,
§8A-9-5, §8A-9-6, §8A-9-7, §8A-10-1, §8A-10-2, §8A-10-3, §8A-10-4,
§8A-10-5, §8A-10-6, §8A-11-1, §8A-11-2, §8A-12-1, §8A-12-2, §8A-12-
3, §8A-12-4, §8A-12-5, §8A-12-6, §8A-12-7, §8A-12-8, §8A-12-9, §8A-
12-10, §8A-12-11, §8A-12-12, §8A-12-13, §8A-12-14, §8A-12-15, §8A-
12-16, §8A-12-17, §8A-12-18, §8A-12-19, §8A-12-20, §8A-12-21, §8A-
12-22 and §8A-12-23, all relating to land-use planning; planning
commissions; comprehensive plan; subdivision and land development
ordinance; land development plan and plat; improvement location
permit; zoning; board of zoning appeals; appeal process;
enforcement; penalties; special provisions; and voluntary farmland protection program.
Referred to the Committee on Government Organization; and then
to the Committee on the Judiciary.
By Senators Boley and McKenzie:
Senate Bill No. 455--A Bill to amend and reenact §17B-3-3a,
§17B-3-3c and §17B-3-4 of the code of West Virginia, 1931, as
amended, all relating to providing that accessible parking
violations will be considered motor vehicle violations and criminal
offenses for certain penalty and record-keeping purposes.
Referred to the Committee on the Judiciary.
By Senators Bowman and McKenzie:
Senate Bill No. 456--
A Bill to amend and reenact §12-4-14 of
the code of West Virginia, 1931, as amended, relating to requiring
state agencies administering funds or grants to notify a grantee of
certain audit reporting requirements; and barring grantees not
complying with reporting requirements from subsequently receiving
funds or grants.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senator Bowman:
Senate Bill No. 457--
A Bill to amend and reenact §17C-15-48 of
the code of West Virginia, 1931, as amended; to amend and reenact
§17C-16-5, §17C-16-6 and §17C-16-7 of said code; and to amend said
code by adding thereto a new section, designated §17C-16-10, all
relating to transferring motor vehicle inspection duties from the
state police to the commissioner of the division of motor vehicles.
Referred to the Committee on Government Organization; and then
to the Committee on Finance.
By Senator Hunter:
Senate Bill No. 458--
A Bill to amend and reenact §3-5-23 of
the code of West Virginia, 1931, as amended, relating to renaming
the section the "Ballot Access Reform Act of 2004"; reducing from
two percent to one percent the required percentage of signatures
upon a nominating certificate relative to the entire votes cast in
the last preceding general election; and eliminating the
requirement to include in the nominating certificate the written
and oral notice given to each voter that by signing they cannot
vote in the primary election.
Referred to the Committee on the Judiciary.
By Senators Prezioso, Hunter, Sharpe, Boley, Rowe and Unger:
Senate Bill No. 459--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §5-11A-3a, relating to providing immunity from civil
damages to a worker, contractor, engineer or architect who in good
faith provides services or materials, without remuneration, to
build or install certain universal accessibility features in
accordance with applicable state and federal laws.
Referred to the Committee on the Judiciary.
By Senators Bowman, Bailey, Jenkins, Snyder, White and Smith:
Senate Bill No. 460--
A Bill to amend and reenact §30-13A-1,
§30-13A-2, §30-13A-3, §30-13A-4, §30-13A-5, §30-13A-6, §30-13A-7,
§30-13A-8, §30-13A-9, §30-13A-10, §30-13A-11, §30-13A-12, §30-13A-13, §30-13A-14, §30-13A-15, §30-13A-16, §30-13A-17 and §30-13A-18
of the code of West Virginia, 1931, as amended; and to amend said
code by adding thereto eighteen new sections, designated §30-13A-
19, §30-13A-20, §30-13A-21, §30-13A-22, §30-13A-23, §30-13A-24,
§30-13A-25, §30-13A-26, §30-13A-27, §30-13A-28, §30-13A-29, §30-
13A-30, §30-13A-31, §30-13A-32, §30-13A-33, §30-13A-34, §30-13A-35
and §30-13A-36, all relating to regulating surveyors and
underground surveyors; definitions; establishing licensure and
endorsement requirements; restructuring and renaming the board; and
providing a civil cause of action and criminal penalties.
Referred to the Committee on Energy, Industry and Mining.
By Senators Prezioso, Hunter, Sharpe, Boley and Minard:
Senate Bill No. 461--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §31-18-6b, relating to limiting financial assistance
from the housing development fund to nonresidential projects.
Referred to the Committee on Finance.
By Senator Harrison:
Senate Bill No. 462--A Bill to amend and reenact §11-21-15 of
the code of West Virginia, 1931, as amended, relating to creating
the "West Virginians Give Act of 2004" authorizing West Virginia
resident taxpayers to make deductions for charitable gifts on their
personal income tax returns.
Referred to the Committee on Finance.
By Senators Bowman, Bailey, Jenkins, Snyder, White, Smith and
Rowe:
Senate Bill No. 463--
A Bill to repeal §16-5-12a, §16-5-12b,
§16-5-18a and §16-5-18b of the code of West Virginia, 1931, as
amended; to amend and reenact §16-5-1, §16-5-2, §16-5-3, §16-5-4,
§16-5-5, §16-5-6, §16-5-7, §16-5-8, §16-5-9, §16-5-10, §16-5-11,
§16-5-12, §16-5-13, §16-5-14, §16-5-15, §16-5-16, §16-5-17, §16-5-
18, §16-5-19, §16-5-20, §16-5-21, §16-5-22, §16-5-23, §16-5-24,
§16-5-25, §16-5-26, §16-5-27, §16-5-28, §16-5-29, §16-5-30, §16-5-
31, §16-5-32, §16-5-33, §16-5-34 and §16-5-35 of said code; and to
amend said code by adding thereto three new sections, designated
§16-5-36, §16-5-37 and §16-5-38, all relating to vital records;
defining terms; establishing section of vital statistics within the
bureau for public health; authorizing legislative rules;
authorizing the appointment of a state registrar; delineating
duties and powers of state registrar; authorizing registration
districts; authorizing appointment and removal of local registrar
and deputy local registrars; delineating duties of local registrars
and deputy local registrars; authorizing state registrar to approve
document forms; requiring the filing of certificates of birth;
establishing criteria for paternity to be indicated on birth
certificate; allowing for amendment of birth records; requiring the
reporting of specified birth defects; requiring notations of
missing children on birth records; requiring reporting of infants
of unknown parentage; providing for delayed registration of births;
providing for establishment of facts of birth through judicial
procedure; requiring courts to report adoptions, annulments of
adoptions or amendments of orders of adoptions; requiring courts to report paternity determinations; providing for new birth
certificates following adoption, legitimation or paternity
acknowledgment or determination; requiring reporting of death and
fetal death; providing for delayed registration of death;
authorizing disposition, disinterment and reinterment permits;
authorizing corrections and amendments to vital records;
authorizing reproduction and disposal of vital records; providing
for disclosure of information for research purposes; providing for
issuance of certified copies of vital records; authorizing fees for
copies and record searches; setting forth duties to keep records
and furnish vital information; authorizing registrar to match birth
and death records; limiting use of social security numbers;
authorizing the establishment of system of registering records of
marriage, divorce and annulment; requiring reporting of marriages,
divorces and annulments; providing penalties for violations; and
continuing the section of vital statistics.
Referred to the Committee on Government Organization; then to
the Committee on the Judiciary; and then to the Committee on
Finance.
By Senators Prezioso, Hunter, Sharpe, Boley and Rowe:
Senate Bill No. 464--
A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §9-5-20, relating to providing for a program intended to
divert low-income residents from early institutionalization in
nursing homes by providing personal home care in their communities.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
By Senators Prezioso, Hunter, Sharpe, Boley and Unger:
Senate Bill No. 465--
A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §5-11A-3a, relating to providing for a standard form
informational list of universal accessibility features to be
provided to a future buyer of any proposed residential housing in
the state.
Referred to the Committee on the Judiciary.
By Senator Facemyer:
Senate Bill No. 466--A Bill to amend the code of West
Virginia, 1931, as amended, by adding thereto a new section,
designated §18A-4-2b, relating to creating the equitable
compensation act; and establishing a state minimum salary
supplement for professional personnel holding a nationally
recognized professional certification.
Referred to the Committee on Education; and then to the
Committee Finance.
By Senators McCabe and Rowe:
Senate Bill No. 467--
A Bill to amend and reenact §11-22-2 of
the code of West Virginia, 1931, as amended; and to amend said code
by adding thereto a new section, designated §17A-3-4a, all relating
to imposing a fee of twenty dollars on the transfer of real
property in addition to the excise tax presently imposed on these
transactions; imposing a fee of twenty dollars on the issuance of
a certificate of title by the commissioner of motor vehicles for the transfer of mobile homes; dedication of the revenues from these
transfer fees to the West Virginia affordable housing trust fund;
and authorizing expenditure of up to ten percent of the funds
generated to be expended by the West Virginia affordable housing
trust fund for administrative and operating expenses.
Referred to the Committee on Finance.
By Senator Minard:
Senate Bill No. 468--
A Bill to amend and reenact §33-6A-4 of
the code of West Virginia, 1931, as amended; and to amend and
reenact §33-17A-4 and §33-17A-5 of said code, all relating to
insurance generally; additional reasons for nonrenewal of
automobile liability, physical damage and property insurance; and
providing that any policy issued after the effective date of the
bill may be nonrenewed by an insurer for any reason with proper
notice to the insured.
Referred to the Committee on Banking and Insurance; and then
to the Committee on the Judiciary.
Senators Prezioso, Hunter, Sharpe, Boley, Unger, McCabe,
Bowman and Minard offered the following resolution:
Senate Concurrent Resolution No. 23--Requesting the Joint
Committee on Government and Finance study the need for creating a
forensic science task force.
Whereas, The state needs to consider the coordination and/or
consolidation of the various state testing laboratories and other
functions, including, but not limited to, the creation of a
statewide laboratory complex; and
Whereas, The state has a shortage of specialists in certain
forensic science fields; and
Whereas, The lack of forensic science specialists affects the
state's ability to address emergency situations; and
Whereas, An improvement in the state's forensic science
capabilities would enhance the ability of law enforcement to solve
crimes and prosecute criminals; and
Whereas, There is a need to coordinate efforts to enhance
laboratory accreditation, training of specialists and sharing of
equipment among forensic organizations in the state; and
Whereas, Future federal funding for crime laboratories may
require the establishment of a statewide plan for organizing
forensic science capabilities; and
Whereas, The Legislature has studied this topic during the
2003 interim session and has recommended that this subject receive
further study during the 2004 interim session; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the need for creating a forensic science task
force; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators Prezioso, Hunter, Sharpe, Boley, Rowe, Minard and
Unger offered the following resolution:
Senate Concurrent Resolution No. 24--
Requesting the Joint
Committee on Government and Finance study the feasibility of
establishing a special residential community for senior citizens.
Whereas, The establishment of a special residential community
for senior citizens would enhance West Virginia's opportunity to
display its natural beauty and attract senior citizens to our
state; and
Whereas, A residential community for senior citizens could be
located where it would be accessible to activities designed for
senior citizens and to skilled medical care and other assisted
living services for seniors to age in place; and
Whereas, The establishment of a senior community in West
Virginia would generate revenue, enhance business and provide jobs;
and
Whereas, The Legislature has studied this topic during the
2003 interim session and has recommended that this subject receive
further study during the 2004 interim session; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility of establishing a special residential community for senior citizens; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators Prezioso, Hunter, Sharpe, Boley, Rowe and Unger
offered the following resolution:
Senate Concurrent Resolution No. 25--Requesting the Joint
Committee on Government and Finance study the feasibility of
working cooperatively with providers of HUD-approved housing to
provide additional personal care services to elderly in order to
decrease the unnecessary institutionalization of elderly
individuals and reduce costs to medicaid.
Whereas, There is continuing growth in the number of elderly
citizens in the state and a need exists to provide community
housing and assisted living services for elderly citizens to
prevent premature institutionalization of these individuals; and
Whereas, The cost of nursing home care is greater than
community options for low-income elderly individuals; and
Whereas, The Department of Health and Human Resources is concerned about the potential addition of a waiver program that
will increase the state's budget for medicaid without reducing
other costs; and
Whereas, The providers of HUD-approved housing believe that a
cooperative effort to offer personal care services to residents of
HUD-approved housing will decrease costs; and
Whereas, Forty-five other states are providing community
services of this nature; and
Whereas, The Legislature has studied this topic during the
2003 interim session and has recommended that this subject receive
further study during the 2004 interim session; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the feasibility of working cooperatively with
providers of HUD-approved housing to provide additional personal
care services to elderly in order to decrease the unnecessary
institutionalization of elderly individuals and reduce costs to
medicaid; and, be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this
study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Prezioso, Hunter, Sharpe, Boley, Dempsey and Rowe
offered the following resolution:
Senate Concurrent Resolution No. 26--
Requesting the Joint
Committee on Government and Finance study the medicaid program
preferred drug list, including the psychopharmacological data
thereunder.
Whereas, The Legislature has studied this topic during the
2003 interim session and has recommended that this subject receive
further study during the 2004 interim session; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby
requested to study the medicaid program preferred drug list,
including the psychopharmacological data thereunder; and, be it
Further Resolved, That the Joint Committee on Government and
Finance is also requested to study the effects of section fifteen,
article five, chapter nine of the code of West Virginia on medicaid
recipients, the medicaid program, physicians and pharmacies;
and,
be it
Further Resolved, That the Joint Committee on Government and
Finance report to the regular session of the Legislature, 2005, on
its findings, conclusions and recommendations, together with drafts
of any legislation necessary to effectuate its recommendations;
and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be
paid from legislative appropriations to the Joint Committee on
Government and Finance.
Which, under the rules, lies over one day.
Senators Tomblin (Mr. President), Prezioso, Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Ross, Rowe, Sharpe,
Smith, Snyder, Sprouse, Unger, Weeks and White offered the
following resolution:
Senate Resolution No. 8--
Designating February 5, 2004, as
"Nurses' Day".
Whereas, Nurses play a vital role in health care in West
Virginia by being at the forefront of our medical needs and working
hand in hand with physicians to provide medical care prescribed for
the betterment of patients; and
Whereas, As citizens we are trusting of our nurses, whose
knowledge and expertise in medicine, along with their care and
compassion for the patients they serve, help us to feel at ease
with the medical treatments we may be receiving; and
Whereas, Without the cautious assessments and accurate
documentation of nurses, physicians would be unable to adequately
perform their duties; and
Whereas, Nurses are loyal to the Nightingale Pledge, which
states in part, "With loyalty will I endeavor to aid the physician
in his work, and devote myself to the welfare of those committed to my care"; therefore, be it
Resolved by the Senate:
That the Senate hereby designates February 5, 2004, as
"Nurses' Day"; and, be it
Further Resolved, That the Senate hereby recognizes the
valuable service nurses perform as health care professionals to the
citizens of West Virginia; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the appropriate representatives of the
nursing profession.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 469 (originating in the Committee on
Government Organization)--A Bill to amend and reenact §29-1A-5 of
the code of West Virginia, 1931, as amended, relating to
continuation of
the
interstate commission on uniform state laws
.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 470 (originating in the Committee on
Government Organization)--A Bill to amend and reenact §30-38-19 of
the code of West Virginia, 1931, as amended, relating to
continuation of
the real estate appraiser licensing and
certification board.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Senate Bill No. 471 (originating in the Committee on
Government Organization)--A Bill to amend and reenact
§29-12-12
of
the code of West Virginia, 1931, as amended, relating to continuation of the state board of risk and insurance management.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 20, Requesting Division of
Highways name bridge over Little Sandy Creek, near Elkview, "Dewey
Russell Crowder Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation.
Senate Concurrent Resolution No. 21, Requesting Governor issue
executive order establishing Office of Minority Health.
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on Government
Organization.
Senate Concurrent Resolution No. 22, Requesting Division of
Highways name bridge on Turnpike at Sharon "Tony DeRaimo Memorial
Bridge".
On unfinished business, coming up in regular order, was
reported by the Clerk and referred to the Committee on
Transportation.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 251, Providing requirements and limitations for mandatory nurse overtime in hospitals; other
provisions.
On third reading, coming up in regular order, was read a third
time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Bailey--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for S. B. No. 251) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Eng. House Bill No. 4020, Protecting personal information
maintained by the state from inappropriate disclosure.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Kessler, unanimous consent being
granted, the bill was laid over one day, retaining its place on the
calendar.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular
order, were each read a first time and ordered to second reading:
Senate Bill No. 318, Relating to good time for inmates of
correctional institutions.
Senate Bill No. 319, Relating to centers for housing young
adult offenders.
Senate Bill No. 406, Relating to victim notification of
defendant's release.
Senate Bill No. 448, Relating to higher education advisory
boards generally.
And,
Senate Bill No. 449, Relating to elections generally.
The Senate proceeded to the twelfth order of business.
Remarks were made by Senators Kessler, Caldwell and Weeks.
Thereafter, at the request of Senator Bowman, and by unanimous
consent, the remarks by Senator Kessler were ordered printed in the
Appendix to the Journal.
On motion of Senator Chafin, a leave of absence for the day
was granted Senator Bailey.
Pending announcement of meetings of standing committees of the
Senate,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Friday, February 6, 2004, at 11 a.m.
____________