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Thursday, January 22, 2004



The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Wednesday, January 21, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.


Committee Reports


Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration:

H. R. 3, Amending House Rule 70a, relating to the Consent Calendar and specifying that a bill may not be removed therefrom on third reading,

H. C. R. 2, Renaming the East River Mountain Tunnel the "H. Edward Steele Memorial Tunnel",

And,

S. C. R. 6, Requesting Congress to provide funding for development of double-stack-compatible rail route,

And reports the same back with the recommendation that they each be adopted.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the following report, which was received:

Your Committee on Health and Human Resources has had under consideration:

H. B. 2366, Requiring health benefit plans to issue uniform prescription drug information cards or technology,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.

In accordance with the former direction of the Speaker, the bill (H. B. 2366) was referred to the Committee on Finance.

On motion for leave, a concurrent resolution was introduced (Originating in the Committee on Health and Human Resources and reported with the recommendation that it be adopted), which was read by its title, as follows:
By Delegates Perdue, Brown, Fleischauer, Foster, Hrutkay, Iaquinta, Mahan, Webster, Susman, Ashley, Carmichael, Hall, Howard, Schadler and Sumner:


H. C. R. 8 - "Requesting the Joint Committee on Government and Finance to conduct a study on the childhood obesity epidemic in West Virginia in regards to chronic diseases, poor nutrition and inadequate exercise."

Whereas, The prevalence of obesity has increased sharply among American adolescents and children since its recognition nearly a half century ago as a national health risk; and

Whereas, According to the Department of Health and Human Resources, forty percent of children in West Virginia are found to be either overweight or obese; and

Whereas, Twenty-two percent of middle and high school students ages twelve to eighteen years, report that they engage in little or no strenuous physical activity with even higher percentages having high fat diets; and

Whereas, Physical education is taught only twenty minutes per day (2.6 days per week) on average in elementary schools and only one semester on average during the three year span of middle school with less than forty percent of students being able to pass the President's Physical Fitness Test; and

Whereas, Among school-age children, only eighteen percent report eating five servings of fruit and vegetables daily; and

Whereas, Obesity presents numerous problems for children. In addition to increasing the risk of obesity in adulthood, childhood obesity is the leading cause of pediatric hypertension, is associated with Type II diabetes mellitus (also known as Adult On-set Diabetes), increases the risk of coronary heart disease, increases stress on the weight-bearing joints while also affecting relationships with peers; and

Whereas, The deleterious effects of obesity on chronic disease risks; its multiplicity of causes; its persistence from childhood into adult; the paucity of successful treatment options and the complexities of treatment guidelines, all argue for increased attention to the healthy prevention of excessive weight gain starting as early in life as possible; and

Whereas, This societal challenge can be dealt with through a host of treatments such as, but not limited to; family education, physical activity, healthy nutrition, behavior modification, public health resources and policy development; and

Whereas, Reversing these current trends among our youth will require a multifaceted approach as well as active participation of health officials, researchers, educators and legislators in the formulation of obesity prevention programs; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the cause and effects of the childhood obesity epidemic in the State of West Virginia in regards to sedentary lifestyle, poor nutrition and chronic diseases resulting from obesity; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, 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.

On motion for leave, a concurrent resolution was introduced (Originating in the Committee on Health and Human Resources and reported with the recommendation that it be adopted), which was read by its title, as follows:

By Delegates Perdue, Hatfield, Brown, Iaquinta, Mahan and Webster:

H. C. R. 9 - "Urging the Legislature to set a goal of providing all citizens of the state of West Virginia with comprehensive, quality and affordable health care and advising its citizens on how to obtain such services."

Whereas, Health spending accounts for nearly fifteen percent of the nation's economy, the largest share on record, and is rising at a rate far faster than inflation; and

Whereas, It is estimated that by the year 2008 a basic family health insurance policy in West Virginia may cost at least $18,000; and

Whereas, One in five adult West Virginians between the ages of 19 and 64 has no health insurance at some time during the year; and


Whereas, The current health care system operates in a manner that creates unfair cost shifting that is the result of inequalities in coverage; and

Whereas, The health of the economy of West Virginia is reflected in the health of its children, families and workers; and

Whereas, The health care crisis in this state can be effectively addressed and resolved through the determination of various state agencies, working with the private sector, to provide appropriate health care coverage for all persons who live in West Virginia; and

Whereas, All citizens of this state should be advised of the opportunity to receive quality health care;
therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature recognizes good health as a basic human need; and, be it

Further Resolved, That health care should therefore be considered a primary social benefit, similar to education and police protection, essential for community stability and economic development; and, be it

Further Resolved, That affordable health care should, on principle, be available to all according to medical need rather than assured only to some and distributed subject to adverse economic forces; and, be it

Further Resolved, That to that end it shall be the goal of the State to provide all West Virginians with comprehensive, quality, affordable health care; and, be it

Further Resolved, That it shall be the goal of all state agencies to formulate such a plan and to educate and advise the citizens of this State about all of the present and future opportunities to obtain comprehensive, quality and affordable health care; and, be it


Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the State Insurance Commissioner, the Secretary of the Department of Health and Human Resources and the Director of the Public Employees' Insurance Agency.

Chairperson Yeager, from the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

H. B. 4068, Allowing the hunting of coyotes by use of amber colored artificial light with certain restrictions,

And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass, and with the recommendation that second reference of the bill to the Committee on the Judiciary be dispensed with.

In the absence of objection, reference of the bill (H. B. 4068) to the Committee on the Judiciary was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 4068) will be placed on the Consent Calendar.

Chairman Mezzatesta, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration:

H. B. 4081, Requiring county boards to post the position of county superintendent prior to making the appointment,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with the same title, as follows:

Com. Sub. for H. B. 4081 - "A Bill to amend and reenact §18-4-1 of the code of West Virginia, 1931, as amended, relating to requiring a thirty-day posting of a position as county superintendent, excepting when the appointment is a temporary one or constitutes the reappointment of a superintendent whose term has expired,"

With the recommendation that the committee substitute do pass.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 4081) will be placed on the Consent Calendar.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Examiners for Speech-Language Pathology and Audiology, in accordance with article thirty-two, chapter thirty
of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the biennium of the West Virginia Board of Examiners in Counseling, in accordance with section five, article thirty-one, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the 2003 annual report of the West Virginia Water Development Authority, in accordance with article one, chapter twenty-two-c of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the Division of Forestry's Logging Sediment Control Act (LSCA), in accordance with section thirteen, article one-b, chapter nine of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the Division of Forestry's annual report of the Managed Timberland Program, in accordance with section eleven, article one-c, chapter eleven of the code; which was filed in the Clerk's Office.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 190 - "A Bill to amend and reenact §3-5-8 of the code of West Virginia, 1931, as amended, relating to altering the amount of presidential and vice presidential certificate of announcement filing fees"; which was referred to the Committee on the Judiciary.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage of

S. B. 196 - "A Bill to amend and reenact §18-5-45 of the code of West Virginia, 1931, as amended, relating to allowing activities on instructional support and enhancement days to occur in any order"; which was referred to the Committee on Education.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 1 - "Requesting the Division of Highways name the Harper Road Bridge spanning I-64/I-77 at Beckley the 'Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Bridge' and the adjoining interchange at milepost 44, I-64/I-77, commonly known as the Harper Road Interchange, the 'Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Interchange'."

Whereas, Lewis N. McManus, former Speaker of the House of Delegates, was an exemplary statesman, public servant, private citizen and gentleman of the highest caliber; and

Whereas, Lewis N. McManus, who passed away December 18, 2002, at the age of 73, was a positive and compassionate voice in state politics, not only as Speaker of the House of Delegates, where he served with honor and distinction for nearly six years during the 1970s, but in all endeavors that he undertook, whether in public or private life; and

Whereas, Lewis N. McManus, a native of Raleigh County, also served as President of the University of Charleston, as Associate Vice President of Charles Ryan Associates, as an assistant to the President of West Virginia University and as a commentator for West Virginia Public Radio; and

Whereas, Lewis N. McManus was the rare political figure who had the unique ability to transcend politics in order to promote the best interests of the citizens of this state. He was truly a statesman of the highest character and intellect; and

Whereas, Lewis N. McManus left a proud legacy to the citizens of this state as a statesman, public servant and private citizen; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby requests the Division of Highways name the Harper Road Bridge spanning I-64/I-77 at Beckley the "Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Bridge" and the adjoining interchange at milepost 44, I-64/I-77, commonly known as the Harper Road Interchange, the "Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Interchange"; and, be it

Further Resolved, That the Division of Highways is hereby requested to erect appropriate signage at the entryway of each end of the bridge with a prominent and legible inscription stating the following: "Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Bridge"; and, be it

Further Resolved, That the Division of Highways is hereby requested to erect appropriate signage at the entryways of the adjoining interchange at milepost 44, I-64/I-77, commonly known as the Harper Road Interchange, with a prominent and legible inscription stating the following: "Lewis N. McManus - Statesman and Speaker of the House of Delegates - Memorial Interchange"; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the University of Charleston, Charles Ryan Associates, West Virginia University, the West Virginia Public Broadcasting Corporation, the Raleigh County Commission and the family of the late Lewis N. McManus.


Bills Introduced


On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Mr. Speaker, Mr. Kiss, and Delegate Trump

[By Request of the Executive]:

H. B. 4100 - "A Bill to amend and reenact §11-17-3 of the code of West Virginia, 1931, as amended, relating to increasing rates of excise tax on cigarettes and on other tobacco products; specifying purpose for tax increase; and providing effective date"; to the Committee on Finance.

By Delegates Ennis, Swartzmiller, Perry, Boggs, Kominar, Amores and Yost:

H. B. 4101 - "A Bill to amend and reenact §60-7-12 of the code of West Virginia, 1931, as amended, relating to creating an affirmative defense for certain civil and criminal actions arising from the sale of alcoholic liquors, wine and nonintoxicating beer by licensed private clubs to persons less than the age of twenty-one whose age is verified by use of a transaction scan devise"; to the Committee on the Judiciary.

By Delegates Hamilton, Sobonya, Blair, Sumner, Howard, Frich and Trump:

H. B. 4102 - "A Bill to amend and reenact §6B-2-5 of the code of West Virginia, 1931, as amended, relating to disclosure of political contributions by persons appointed to any state board or commission or any new state employee"; to the Committee on the Judiciary.

By Delegates Manuel, Tabb, Doyle, Webster, Amores, Trump and Duke:

H. B. 4103 - "A Bill to amend and reenact §15-2A-9 of the code of West Virginia, 1931, as amended, relating to eliminating any reduction in the benefit of a state police officer who is disabled on the job when the officer attains the age of fifty-five"; to the Committee on Pensions and Retirement then Finance.

By Delegates Morgan, Kominar, Mahan, Stemple, Craig, Amores and Staton:

H. B. 4104 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-56, relating to creating the felony crime of scanning device or reencoder fraud; providing definitions; and criminal penalties"; to the Committee on the Judiciary.

By Delegates Browning, Perry, Beane, Staton and G. White:

H. B. 4105 - "A Bill to amend and reenact §5-10-22 of the code of West Virginia, 1931, as amended, relating to retirement annuity of public employees and retirants; and increasing the multiplier"; to the Committee on Pensions and Retirement then Finance.

By Delegates Hatfield, Perdue, Webster, Foster, Brown and R. Thompson:

H. B. 4106 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §16-42-1, §16-42-2, §16-42-3, §16-42-4,§16-42-5, §16-42-6, §16- 42-7, §16-42-8, §16-42-9, §16-42-10 and §16-42-11, relating to creating a genetic information privacy act; establishing legislative findings regarding genetic privacy; defining terms; providing for the confidentiality of genetic information; prohibiting the use of genetic test information for certain insurance purposes; authorizing the insurance commissioner to promulgate rules consistent with federal guidelines regarding disclosures of information; allowing the use of genetic test information in paternity proceedings; allowing use of genetic DNA typing information by law- enforcement officers in certain circumstances; establishing certain limitations on the use of genetic test information by employers; specifying procedures for disclosure of genetic test information; providing for an exception to this article for those participating in research settings governed by the federal policy for the protection of human research subjects; and providing for a right of action and damages for violations"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Long, Perry, Caruth, R. M. Thompson and Frederick:

H. B. 4107 - "A Bill to amend and reenact §47-20-23 of the code of West Virginia, 1931, as amended; to amend and reenact §47-21-21 of said code, all relating to charitable bingo and charitable raffles and allowing game proceeds to be transferred, by check, between raffle and bingo accounts to offset losses"; to the Committee on the Judiciary.

By Delegates Perry, Stemple, Shaver, Crosier, Pino, Howard and Sumner:

H. B. 4108 - "A Bill to amend and reenact §17C-15-36a of the code of West Virginia, 1931, as amended, relating to motor vehicle equipment; and authorizing sun screening devices that exceed statutory limits to be used in law-enforcement K-9 and other emergency vehicles that haul animals"; to the Committee on the Judiciary.

By Delegates Perry, Williams, Beach, Pino, Morgan, Crosier and Craig:

H. B. 4109 - "A Bill to amend and reenact §18-5-5 of the code of West Virginia, 1931, as amended, relating to county boards of education generally; prohibiting individual board members from acting on behalf of the board in an individual capacity unless authorized by statute; and, assessing personal liability for violations"; to the Committee on Education then the Judiciary.

By Delegates Stemple, Amores and Kominar:

H. B. 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, 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"; to the Committee on the Judiciary.


Consent Calendar

Third Reading

Com. Sub. for H. B. 3190, Relating to the titling and ownership of property for area vocational education programs; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 11), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Shelton and Walters.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3190) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bill and request concurrence therein.


Second Reading

Com. Sub. for H. B. 2801, Requiring the ethics commission to furnish copies of all advisory opinions issued by the commission to the West Virginia Legislature and the supreme court law library; on second reading, coming up in regular order, was read a second time.

The Clerk announced that, pursuant to House Rule 70a, Delegate Armstead had requested that Com. Sub. for H. B. 2081 be removed from the Consent Calendar and be placed upon the House Calendar.

At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading, and the rule was suspended to permit the offering and consideration of an amendment by Delegate Armstead on third reading.
H. B. 4083, Continuing the veterans' council; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.


House Calendar

Third Reading

S. B. 166, Reducing allowable blood alcohol content for DUI; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.

At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed until the completion of bills on third reading.
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or possession of certain controlled or counterfeit substances near a park or housing project; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 13), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Ellem.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2088) passed.

On motion of Delegate Amores, the title of the bill was amended to read as follows:

Com. Sub. for H. B. 2088 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §60A-4-412, relating to prohibiting the manufacture, distribution, dispensation or possession of a controlled substance, marijuana or counterfeit substance within one thousand feet of a park; providing criminal penalties for distribution, dispensation or possession of certain substances or conspiring to commit such act; providing that a map of a park area produced by any municipal agency and certified as a true copy by the custodian shall be prima facie evidence of the boundaries of the park; authorizing municipal and county regulations requiring the posting of signs designating the areas within one thousand feet of parks; and providing affirmative defenses to a violation of this section."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner; on third reading, coming up in regular order, with an amendment pending and the further right to amend, was reported by the Clerk.

At the request of Delegate Staton, and by unanimous consent, the bill was recommitted to the Committee on the Judiciary.
Com. Sub. for H. B. 4022, Creating "The All-Terrain Vehicle Safety Regulation Act"; on third reading, coming up in regular order, with amendments pending and the further right to amend, was reported by the Clerk.

Delegate Manuel moved to amend the bill on page two, section one, after line one, by inserting the following:

"(1) By a person under the eighteen years while another person under the age of eighteen years is a passenger" followed by a semi-colon.

And,

By renumbering the remaining subdivisions.

At the request of Delegate Manuel, and by unanimous consent, the amendment was then withdrawn.

Delegate Trump moved to amend the bill on page two, section one, line one, by striking out all of section one and inserting in lieu thereof the following:
"§17F-1-1. Acts prohibited by operator; penalties for violations.
(a) No all-terrain vehicle may be operated in this state:


(1) On any road or highway except by public safety personnel responding to emergencies and except for the purpose of crossing the road, street or highway, other than an interstate highway, divided highway or a highway with a speed limit of greater than fifty-five miles an hour, if:

(A) The crossing is made at an angle of approximately ninety degrees to the direction of the road or highway and at a place where no obstruction prevents a quick and safe crossing;

(B) The vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the road or highway;

(C) The operator yields his or her right of way to all oncoming traffic that constitutes an immediate potential hazard; and,

(D) Both the headlight and taillight are illuminated when the crossing is made if the vehicle is so equipped;

(2) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights;

(3) Without a manufacturer-installed or equivalent spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system; and

(4) Unless the operator is in compliance with the provisions of section two of this article.

(b) No all-terrain vehicle may be operated in this state by any person unless all riders on the vehicle are wearing protective helmets that meet the current performance specifications established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 or Snell Safety Standards for Protective Headgear for Vehicle Users: Provided, That operators and riders of all-terrain vehicles operated for nonrecreational commercial purposes as set forth in section six of this article are exempt from the provisions of this subsection;

(c)(1) Any person not exempted by the provisions of this article who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the regional or county jail for a period of up to six months, or both fined and imprisoned.

(2) Any person not exempted by the provisions of this article who violates the provisions of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars.

(d) Notwithstanding any provision of this chapter to the contrary, an all-terrain vehicle may, for the sole purpose of getting from one trail, field or area of operation to another, be operated upon the shoulder or as close as possible to the edge of any road, street or highway, other than an interstate highway, for a reasonable distance, if:

(1) The vehicle is operated at speeds of twenty-five miles per hour or less; and

(2) If operated at any time from sunset to sunrise, the all-terrain vehicle must be equipped with headlights and taillights which must be illuminated.

(e) For purposes of subsection (d) of this section, the reasonable distance which may be traveled for the sole purpose of getting from one trail, field or area of operation to another upon the shoulder or as close as possible to the edge of any road, street or highway, other than an interstate highway, shall not exceed that distance as permitted in this code for farm use vehicles.

(f) Notwithstanding the provisions of this chapter to the contrary, a municipality, county or other political subdivision of the state may authorize the operation of all-terrain vehicles on certain roads, streets or highways, other than interstate highways, to allow participation in parades, exhibitions and other special events, or in emergencies."

And,

On page six, section three, after line sixteen, by striking out all of section three and inserting in lieu thereof the following:
"§17F-1-3. Authority to petition county commission for ordinance to regulate or prohibit operation of all-terrain vehicles in areas regulated by homeowners associations.


Homeowner associations may petition the county commission of the county in which the area regulated by the homeowner association is located for an ordinance to regulate or prohibit the operation of all-terrain vehicles upon any street, road or avenue within the area regulated by the homeowner association. County commissions are hereby authorized, upon receipt of a petition authorized by the provisions of this section, to enact an ordinance regulating or prohibiting the operation of all-terrain vehicles."

At the request of Delegate Trump, and by unanimous consent, the amendment then was withdrawn.

Delegate Trump moved to amend the bill on page two, section one, lines four and five, following the word "highway", by striking out the words "with a centerline or more than two lanes".

On the adoption of the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 14), and there were--yeas 24, nays 72, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Armstead, Blair, Brown, Calvert, Carmichael, Duke, Evans, Faircloth, Fleischauer, Hall, Houston, Manuel, Overington, Palumbo, Schadler, Schoen, Smirl, Sobonya, Sumner, Tabb, Trump, Wakim, Webb and G. White.

Absent And Not Voting: Beane, Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegate Trump then moved to amend the bill on page seven, section five, by striking out all of section five and inserting in lieu thereof the following:
"17F-1-5. Trespass by operator of an all-terrain vehicle upon private lands of another; penalty.

No person may operate an all-terrain vehicle on the private lands of other persons without the express written permission of the landowner or the tenant in lawful possession thereof, which shall be in the physical possession of the operator at all times when the person is operating an all- terrain vehicle upon the private lands of another. Any person who violates the provisions of this section is guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned in the regional or county jail for a period not to exceed six months, or both fined and imprisoned."

On the adoption of the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 15), and there were--yeas 32, nays 65, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Doyle, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Houston, Howard, Leggett, Manuel, Overington, Romine, Schadler, Schoen, Smirl, Sumner, Tabb, Trump, Wakim, Walters and Webb.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegate Trump moved to amend the bill on page three, section one, line seventeen, following the word "riders", by striking out the words "under the age of eighteen".

On the adoption of the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 16), and there were--yeas 23, nays 74, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Beach, Blair, Brown, Calvert, Cann, Doyle, Duke, Faircloth, Fleischauer, Frederick, Hamilton, Hatfield, Leggett, Manuel, Overington, Palumbo, Schadler, Smirl, Spencer, Tabb, Trump, Wakim and G. White.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegate Frich moved to amend the bill on page seven, section five, line four, following the word "permission", by striking out the period and inserting in lieu thereof a colon and the following:
"Provided, That riders under the age of eighteen are wearing protective helmets that meet the current performance specifications established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Standard No. 218 or Snell Safety Standards for Protective Headgear for Vehicle Users."

On the adoption of the amendment, Delegate Frich demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 17), and there were--yeas 32, nays 65, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Armstead, Beach, Blair, Brown, Calvert, Carmichael, Caruth, Evans, Faircloth, Fleischauer, Foster, Frederick, Frich, Hamilton, Hatfield, Howard, Leggett, Long, Louisos, Manuel, Palumbo, Poling, Schadler, Smirl, Sobonya, Spencer, Susman, Tabb, Trump, Wakim, Webb and G. White.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegate Manuel moved to amend the bill on page five, section one, line fifty-one, by striking out the words "that distance as established for farm use vehicles" and inserting in lieu thereof the words "a distance of three miles".

On the adoption of the amendment, Delegate Manuel demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 18), and there were--yeas 28, nays 69, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Beach, Blair, Brown, Calvert, Carmichael, Doyle, Duke, Evans, Faircloth, Fleischauer, Foster, Frich, Hall, Hatfield, Houston, Howard, Manuel, Palumbo, Schadler, Schoen, Smirl, Sobonya, Sumner, Susman, Tabb, Trump, Wakim and Webb.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

Delegates Beane, Ennis, Manuel and Frich moved to amend the bill on page three, section one, following line sixteen, by inserting a new subdivision three, to read as follows:

"(3) With a passenger under the age of eighteen, unless the operator has at a minimum a level two intermediate driver's license or its equivalent" followed by a semi-colon.

And,

By renumbering the remaining subdivisions.

On the adoption of the amendment, Delegate Frich demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 19), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.

On motion of Delegates Beane, Ennis, Manuel and Frich, the bill was amended on page four, section one, line thirty-eight, following the words "upon the shoulder or", by inserting a comma and the words "if no shoulder" followed by a comma.

And,

On page five, section one, line forty-nine, following the words "upon the shoulder or" by inserting a comma and the words "if no shoulder" followed by a comma.

Delegate Overington moved to amend the bill on page three, section one, line twenty-two after the semi-colon, by inserting the following:

"Any parent, legal guardian or person who has actual responsibility for a child under eighteen years of age who allows the child to operate or be a passenger on an all terrain vehicle without a helmet as required under the provisions of this section is guilty of a misdemeanor, and shall, upon conviction of a first offense, be fined not less than fifty dollars nor more than one hundred dollars or, in the discretion of the court, sentenced to perform not more than ten hours of community service or both. Upon conviction of a second offense he or she shall be fined not more than one hundred dollars nor less than two hundred dollars or, in the discretion of the court, sentenced to perform not more than twenty hours of community service or both. Upon conviction of a third or subsequent offense he or she shall be fined not less than two hundred dollars nor more than five hundred dollars or, in the discretion of the court, sentenced to perform not more than one hundred hours of community service or both."

On the adoption of the amendment, Delegate Overington demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 20), and there were--yeas 20, nays 77, absent and not voting 3, with the yeas and absent and not voting being as follows:

Yeas: Blair, Calvert, Carmichael, Caruth, Evans, Faircloth, Foster, Frederick, Frich, Hall, Hamilton, Manuel, Overington, Palumbo, Schadler, Schoen, Smirl, Tabb, Trump and Wakim.

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.

There being no further amendments, and having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 21), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4022) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 4043, Establishing the priority for early childhood education in the basic skills of reading, mathematics and English language arts; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.

There being no amendments, and having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 22), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Pino and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4043) passed.

Delegate Staton moved that the bill take effect July 1, 2004.

On this question, the yeas and nays were taken (Roll No. 23), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Pino and Shelton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4043) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Delegate Pino announced that he was absent when the votes were taken on Roll Nos. 22 and 23, and that had he been present, he would have voted "Yea" thereon.
Com. Sub. for H. B. 4072, Providing for a unified approach to the long-term planning and implementation of technology in the public schools; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.

There being no amendments, and having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 24), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4072) passed.

Delegate Staton moved that the bill take effect July 1, 2004.

On this question, the yeas and nays were taken (Roll No. 25), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4072) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4084, West Virginia Pharmaceutical Availability and Affordability Act; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.

Extended debate followed in which the Speaker and other members of the House addressed the issues in H. B. 4084.

No amendments were offered to the bill.

Having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 26), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4084) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 27), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4084) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Unanimous consent having been obtained, the following remarks on H. B. 4084 were ordered printed in the Appendix: Speaker Kiss, Delegates Perdue, Michael, Wakim, Foster and Doyle.

At 2:21 p.m., on motion of Delegate Staton, the House of Delegates recessed until 5:00 p.m., and reconvened at that time.
* * * * * * * * * *



Evening Session

* * * * * * * * * *



At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.


Committee Reports

On motion for leave, a bill was introduced (Originating in the Committee on Education and reported with the recommendation that it do pass), which was read by its title, as follows:

H. B. 4111 - "A Bill to amend and reenact §18-2E-5 of the code of West Virginia, 1931, as amended; and to amend and reenact §18-5-7a of said code, all relating to education; state board of education; county boards of education; modifying powers and authorities; legislative findings, purpose and intent; process for improving education; education standards and accountability measures; office of education performance audits; school accreditation and school system approval; intervention to correct impairments; and disposition of school property in flood control projects."

At the respective requests of Delegate Staton, and by unanimous consent, the bill (H. B. 4111) was taken up for immediate consideration, read a first time and ordered to second reading.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 28), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The bill was then read a second time and ordered to engrossment and third reading.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 29), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4111) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 30), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale and Shelton.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4111) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has given further consideration to:
Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner,

And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.

At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for H. B. 4004) was taken up for immediate consideration and read a second time.

At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading, with the Committee amendment pending, and the rule was suspended to permit the offering and consideration of amendments on third reading.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 4020, Protecting personal information maintained by the state from inappropriate disclosure,
H. B. 4021, Preventing the disclosure of personal information of state employees and officers, and their dependents,

And,
S. B. 190, Relating to filing fee for certain United States candidates,

And reports the same back, by unanimous vote of the Committee, with the recommendation that they each do pass.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (H. B. 4020, H. B. 4021 and S. B. 190) will be placed on the Consent Calendar.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:
H. B. 3096, Authorizing cooperation of campus police with other law-enforcement agencies,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 3096 - "A Bill to amend and reenact §15-10-3, §15-10-4 and §15-10-5 of the code of West Virginia, 1931, as amended, relating to authorizing cooperation of campus police and rangers employed by the Hatfield-McCoy regional recreation authority with other law- enforcement agencies,"

With the recommendation that the committee substitute do pass.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 3096) will be placed on the Consent Calendar.


House Calendar

Third Reading

S. B. 166, Reducing allowable blood alcohol content for DUI; on third reading, with the right to amend, having been postponed until this time, was, at the request of Delegate Staton, and by unanimous consent, passed over until after consideration of bills on second reading.


Second Reading

Com. Sub. for H. B. 2755, Creating a criminal penalty for persons receiving stolen property that was obtained by means other than through the commission of a theft; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 4032, Reducing the allowable blood alcohol content for DUI from .10 to .08 of one percent of body weight; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

"That §17B-4-3 of the code of West Virginia, 1931, as amended, 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 chapter be amended and reenacted; that said chapter be further 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; §17C-5C-10; §17C-5C-11; §17C-5C-12; §17C-5C-13; §17C-5C-14; §17C-5C-15; and §17C-5C-16; that §20-7-18 and §20-7-18b of said code be amended and reenacted; and that §33-6A-1 of said code be amended and reenacted, all to read as follows:


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) The enhanced penalties provided for in this subsection shall be imposed if, upon conviction, it is found that the defendant had a blood alcohol level of twenty hundredths (.20) of one percent or more, by weight.

(1) If a person is convicted of an offense under the provisions of this section, and if at the time the offense was committed the person had an alcohol concentration in his or her blood of twenty hundredths (.20) of one percent or more, by weight, the person shall be sentenced in accordance with the provisions of this subsection.

(2) If the person has not been previously convicted of an offense under the provisions of this section, the person 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.

(3) If the person has been previously convicted of an offense and sentenced in accordance with the provisions of this section, the person shall be confined in the county or regional jail for a period of 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.

(4) If the person has been twice or more previously convicted of an offense and sentenced in accordance with the provisions of this section, the person 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.

(5) The existence of the fact of a blood alcohol concentration of twenty hundredths (.20) of one percent or more, by weight, and the fact of any previous conviction, which facts would make a person subject to the enhanced penalties provided for in this section, shall not be considered unless such facts are clearly stated and included in the warrant, indictment or information by which such person is charged and are either:

(A) Found by the court upon a plea of guilty or nolo contendere;

(B) Found by the jury, if the matter is tried before a jury, upon submission to the jury of a special interrogatory for such purpose; or

(C) Found by the court, if the matter is tried by the court without a jury.

(6) Nothing in this section shall be construed to limit the sentencing alternatives made available to circuit court judges under other provisions of this code.

(j) (k) 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) (l) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.

(l) For purposes of subsections (j) and (k) and (l) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:

(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section or of the 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 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, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section. An order for supervision or participation in a community corrections program created pursuant to article eleven-c, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.
§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 two of article five 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 two of article five, 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, article five of this chapter 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 two of article five, 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 two of article five, 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 two of article five, 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 section two of this article. 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 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 section four, article five of this chapter.

(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, chapter twenty-nine-a of this code, 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.
ARTICLE 5C. COURT REFERRAL OFFICER PROGRAM FOR CERTAIN OFFENSES RELATED TO DRIVING UNDER THE INFLUENCE.

§17C-5C-1. Legislative findings and intent.

(a) The legislature finds that a specialized system for screening, evaluating, educating, and rehabilitating repeat offenders arrested for offenses related to driving under the influence of alcohol, controlled substances or drugs is required.

(b) It is therefore the intent of the Legislature to establish a specialized court referral officer program to promote the evaluation, education and rehabilitation of persons whose use or dependency on alcohol or drugs directly or indirectly contributed to the commission of certain offenses or repeat offenses related to driving under the influence of alcohol, controlled substances or drugs, and to establish mandatory alcohol and drug abuse treatment programs to provide treatment and rehabilitation for these identified offenders.
§17C-5C-2. Definitions.

For the purpose of this chapter, the following terms shall have the meaning ascribed to them in this section:

(1) 'Alcohol or drug related offenses' means all offenses, including municipal ordinance violations, related to driving under the influence of alcohol, controlled substances or drugs.

(2) 'Court referral officer program' means a program established to evaluate defendants' use of alcohol or drugs and to provide assistance to courts in promoting the education and rehabilitation of defendants arrested, charged or convicted of driving under the influence of alcohol, controlled substances or drugs.

(3) 'Court referral officers' means those persons within designated judicial circuits providing assessment or evaluation of defendants for alcohol or drug abuse, recommendations or referrals for education or treatment and monitoring for court-ordered compliance.

(4) 'Director' means the director of the administrative office of the supreme court of appeals.

(5) 'Driving under the influence' means driving or in actual physical control of a vehicle while under the influence of alcohol or drugs as proscribed by article five, chapter seventeen-c of this code, or any other statute or ordinance.
§17C-5C-3. Court referral officers or contracting entities; appointment; supervision by director of the administrative office of the supreme court of appeals and circuit judges; compensation; duties.


(a) The director of the administrative office of the supreme court of appeals is authorized to appoint court referral officers or contract with individuals or entities to provide alcohol and drug assessment for courts and to conduct the court referral programs in each judicial circuit of the state. Such appointments or contracts shall be made or entered into with the advice of the chief judge of the circuit. The director shall designate the locations where said court referral programs, court referral officers or contracting entities or individuals shall serve, which designations may be changed from time to time: Provided, That all appointed court referral officers and approved court referral programs shall serve at the pleasure of the director. Any individual or entity which contracts to conduct the court referral program shall perform all the duties as set out in a statewide policies and procedures manual for court referral programs established by the administrative office of the supreme court of appeals. Court referral officers shall work under the general supervision and direction of the director and the judge or judges of the circuit to which they are assigned. Such court referral officers shall be compensated by the state from moneys contained in the alcohol and drug abuse court referral officer trust fund and any federal grants designated by the administrative office of the supreme court of appeals for this purpose.

(b) Court referral officers shall be required to perform the following duties:

(1) Attend municipal, magistrate and circuit courts as needed;

(2) Screen and evaluate all defendants ordered by the courts to participate and to recommend to the court appropriate educational or rehabilitative programs for such defendants;

(3) Develop and maintain a file on each defendant assigned to the court referral officer, which shall include, but shall not be limited to, information taken from arrest records, test scores, results of chemical blood alcohol tests, drug screens and other personal data;

(4) Continuously monitor defendants who are ordered to complete alcohol or drug related educational or rehabilitative programs and to report violations of such orders to the prosecutor or court;

(5) Provide such information and reports on defendants assigned to the court referral officer as may be required by the prosecutor, ordering court or the director;

(6) Provide information or education on the court referral program to judges, clerks, law enforcement personnel, prosecutors and the general public;

(7) Collect and report statistics, data, and other information pertaining to the court referral program and alcohol and drug related offenses as required by the director;

(8) Collect and report information to the courts concerning results of urine screens, drug testing or other appropriate evaluative measures; and

(9) Perform such other duties or functions to further the purposes of this article as may be directed by the court which they serve or the director.
§17C-5C-4. Mandatory enrollment program; guidelines; conditions.

Any person convicted for the commission of a third or subsequent offense subject to enhanced penalties under section two, article five of this chapter or who is convicted for the commission of an offense subject to enhanced penalties under the provisions of subsection (j) of said section two, shall be ordered by the sentencing court having jurisdiction over the offense to enroll in an alcohol or drug abuse treatment program provided for in this article. Upon enrollment in the evaluation, education and rehabilitation program the offender is subject to the following conditions:

(1) The offender shall:

(A) Provide information needed to conduct an assessment of his treatment needs;

(B) Complete the recommended treatment;

(C) Complete a drug or alcohol testing program;

(D) Pay any restitution as may be ordered by the court;

(E) Unless indigent, pay for his assessment, treatment, and monitoring.
§17C-5C-5. Enforcement.

Compliance with any order authorized pursuant to this chapter relating to evaluation, education and rehabilitation may be enforced by the court through exercise of its contempt powers.
§17C-5C-6. Bureau of public health to develop policies and procedures; certification.

The bureau for public health of the department of health shall develop policies and procedures which shall be followed in the treatment of offenders.
§17C-5C-7. Alcohol and drug abuse court referral officer trust fund established; use.


The alcohol and drug abuse court referral officer trust fund is hereby established and created as a separate fund in the state treasury. Such fund shall be used for operation of the alcohol and drug abuse court referral officer program. This fund shall consist of all moneys paid into the state treasury to the credit of such fund pursuant to this article and all moneys received for the benefit of the court referral officer program by legislative appropriation, grant, gift, or contributions by counties or municipalities, or otherwise. Such moneys shall be used and expended by the director to establish, organize, and administer the alcohol and drug abuse court referral officer program throughout the state. Any unexpended or unencumbered sums remaining in the fund at the end of the fiscal year except appropriations from other state funds shall remain in the fund to be preserved for the administration of the alcohol and drug abuse court referral officer program.
§17C-5C-8. Alcohol and drug abuse court referral officer trust fund - purpose of expenditures; effect on other appropriations.


Moneys contained in the alcohol and drug abuse court referral officer trust fund shall be expended by the director for purposes set out in section three of this article. Appropriations heretofore or hereafter made to the budget of the supreme court of appeals shall not be reduced by the amount of any funds contained in the alcohol and drug abuse court referral officer trust fund.
§17C-5C-9. Court referral officer assessment cost.

In addition to the imposition of any other costs, penalties, or fines imposed pursuant to law, any person convicted as an adult or adjudicated a youthful offender or juvenile delinquent based on the offense of driving under the influence or other alcohol or drug related offenses as defined in this chapter shall be ordered by the presiding court to pay an alcohol and drug abuse court referral officer assessment cost in an amount recommended by the director and approved by the supreme court of appeals. The state treasurer shall credit such sums to the alcohol and drug abuse court referral officer trust fund.
§17C-5C-10. Monitoring cost.

Any alcohol or drug-related offender referred for assessment shall pay a monitoring cost to the court referral officer which shall also be remitted to the state treasurer by the court referral officer by the tenth day of each month. The assessment cost and monitoring costs shall be established and regulated by the director and can be adjusted to ensure that adequate financial resources are available to support the court referral program and administration of the programs.
§17C-5C-11. Eligibility of court referral programs to receive payments from fund.


The director shall establish criteria to determine the eligibility of court referral programs to receive payment from the court referral officer trust fund. All such programs shall be nonprofit agencies.
§17C-5C-12. Indigent offender alcohol and drug treatment trust fund - established cost; sanctions for failure to remit costs.


The indigent offender alcohol and drug treatment trust fund is hereby established and created as a separate fund in the state treasury. Such fund shall provide for payment to eligible alcohol and drug treatment programs for treatment and rehabilitation of indigent offenders. This fund shall consist of all moneys paid into the state treasury to the credit of such fund pursuant to this chapter and all moneys received for the benefit of the indigent offender alcohol and drug treatment trust fund by legislative appropriation, grant, or otherwise. A cost recommended by the director and approved by the supreme court of appeals shall be collected from each offender. The state treasurer shall credit such sums to the indigent offender alcohol and drug treatment trust fund. Failure of a court referral program or court referral officer to remit all costs collected shall be grounds for termination from the program.
§17C-5C-13. Indigent offender alcohol and drug treatment fund - criteria for eligibility of programs to receive payment from fund.


The bureau of public health shall establish criteria to determine which treatment programs shall be eligible to receive payment for treatment services for indigent offenders from this fund, and shall establish rates of reimbursement for treatment of indigent offenders. At a minimum, such programs must be nonprofit and certified by the bureau of public health.
§17C-5C-14. Indigent offender alcohol and drug treatment trust fund - purpose of expenditures.


Moneys contained in the indigent offender trust fund shall be expended by the director for purposes set out in section twelve of this article. Such moneys shall be used and expended by the director to establish, organize, and administer the indigent offender alcohol and drug treatment program throughout the state, including all functions or projects of the department of health directly or indirectly relating thereto. Any unexpended or unencumbered sums remaining in the fund at the end of the fiscal year except appropriations from other state funds shall remain in the fund to be preserved for the administration of the indigent offender treatment program.
§17C-5C-15. Waiver of payment of costs for indigents; revocation of waiver; community service in lieu of payment.


Any person determined to be indigent by the court may request waiver of all or part of the costs established by this chapter. In such cases where a waiver of costs is granted, such waiver shall be limited to the time when the offender is unable to pay. If the offender becomes able to pay during the course of monitoring or treatment, or another future date, the waiver of costs may be revoked. The judge may order an indigent offender to perform community service in lieu of payment of costs.
§17C-5C-16. Exemption from liability.
The director, employees of the administrative office of the supreme court of appeals, and the employees of the department of health, including the commissioner of the bureau of public health, shall be exempt from civil liability for alleged acts of ordinary negligence for actions taken in performance of their official duties in carrying out the provisions of this article.


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, chapter sixty-two of this code 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 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, article five-a, chapter seventeen-c of this code, 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."

On motion of Delegate Amores, the committee amendment was amended on page sixty-one, following line seventeen, by inserting a new section seventeen, as follows:
"17C-5C-17. Operative date.

The provisions of this article become operable on the first day of October, two thousand four. "

On motion of Delegate Michael, the committee amendment was amended on page one, following the enacting section, by inserting the following:
"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 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."

On page seventy-four, after line twenty-three, by inserting the following:
"CHAPTER 50. MAGISTRATE COURTS.

ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2b. Additional costs in certain criminal proceedings.

(a) 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 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 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 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 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 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 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 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,

On page one, by amending the enacting section to read 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 chapter be amended and reenacted; that said chapter be further 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; §17C-5C-10; §17C-5C-11; §17C- 5C-12; §17C-5C-13; §17C-5C-14; §17C-5C-15; and §17C-5C-16; 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" and a colon.

Delegates Blair and Trump moved to amend the committee amendment on page thirteen, section two, beginning on line fourteen, by striking out all of subdivisions (1) and (2) and inserting in lieu thereof the following:

"(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of 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;

(2) Any conviction under the provisions of subsection (a) or (b) of the prior enactment of this section for an offense which occurred within a period of five years immediately preceding the first day of September, one thousand nine hundred eighty-one; and

(3) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the tenth day of June, one thousand nine hundred eighty-three."

On the adoption of the amendment to the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 31), and there were--yeas 39, nays 57, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Campbell, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frederick, Frich, Hall, Hamilton, Howard, Leggett, Long, Louisos, Manuel, Overington, Poling, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Tabb, Talbott, R. M. Thompson, Trump, Wakim, Walters and Webb.

Absent And Not Voting: Coleman, Fragale, Perdue and Shelton.

So, a majority of the members present and voting not having voted in the affirmative, the amendment to the amendment was not adopted.

The Committee amendment, as amended, was then adopted and the bill was ordered to engrossment and third reading.

S. B. 166, Reducing allowable blood alcohol content for DUI; on third reading, with the right to amend, having been postponed until this time, was reported by the Clerk.

Delegate Staton moved to amend the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the provisions of H. B. 4032, as amended.

On the adoption of the amendment, Delegate Trump demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 32), and there were--yeas 64, nays 32, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Crosier, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Walters, Webb and G. White.

Absent And Not Voting: Coleman, Fragale, Perdue and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 33), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Perdue and Shelton.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 166) passed.

On motion of Delegate Staton, the title of the bill was amended to read as follows:

S. B. 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 said code 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, §17C-5C-10, §17C-5C-11, §17C-5C-12, §17C-5C-13, §17C-5C-14, §17C-5C-15, §17C-5C-16 and §17C-5C-17; 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; reducing the allowable blood alcohol concentration for driving a motor vehicle or operating a motorized vessel while under the influence of alcohol, controlled substances or drugs from ten hundredths of one percent or more by weight to eight hundredths of one percent or more by weight and establishing the penalty therefor; creating the misdemeanor offense of driving with a blood alcohol concentration of twenty hundredths of one percent or more by weight and establishing the penalty therefor; 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; establishing a specialized court referral officer program to promote the evaluation, education and rehabilitation of persons whose use or dependency on alcohol or drugs directly or indirectly contributed to the commission of certain offenses or repeat offenses; 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."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Coleman, Fragale and Shelton.

Delegate Overington asked and obtained unanimous consent that the remarks of Delegate Trump regarding the House amendment to S. B. 166 be printed in the Appendix to the Journal.

At 6:21 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 10:00 a.m., Friday, January 23, 2004.