(1) A person from keeping and possessing alcoholic liquors in his or her residence for the personal use of himself or herself, his or her family, his or her employee or his or her guests if the alcoholic liquors have been lawfully acquired by him or her;
(2) A person, his or her family, or employee from giving or serving such alcoholic liquors to guests in the residence, when the gift or service is not for the purpose of evading the provisions of this chapter;
(3) The holder of a winery or a farm winery license from serving complimentary samples of its wine in moderate quantities for tasting on the winery or the farm winery premises; and
(4) The holder of a distillery or a mini-distillery license from serving complimentary samples of its alcoholic liquor in moderate quantities for tasting on the distillery or the mini-distillery premises.
(1) A person from manufacturing wine at his or her residence for consumption at his or her residence as permitted by section one of this article;
(2) A person from manufacturing and selling unfermented cider;
(3) A person from manufacturing and selling cider made from apples produced by him or her within this state to persons holding distillery licenses, if the manufacture and sale is under the supervision and regulation of the commissioner;
(4) A person from manufacturing and selling wine made from fruit produced by him or her within this state to persons holding winery licenses, if the manufacture and sale is under the supervision and regulation of the commissioner;
(5) The holder of a winery or a farm winery license from selling wine for off-premises consumption sold at retail at the winery or the farm winery, as provided in section four, article three-b of this chapter, or for any other person who is licensed under this chapter to sell wine as a wine supplier or distributor; and
(6) The holder of a distillery or a mini-distillery license from selling alcoholic liquor for off-premises consumption sold at retail at the distillery or the mini-distillery, as provided in section four, article three-a of this chapter.
(1) For scientific, chemical, mechanical or industrial purposes;
(2) By those authorized to procure ethyl alcohol tax free under the acts of Congress and regulations thereunder;
(3) In the manufacture of denatured alcohol produced and used as provided by the acts of Congress and regulations thereunder;
(4) In the manufacture of scientific, chemical, mechanical and industrial preparations or products unfit for beverage purposes;
(5) By those authorized to manufacture ethyl alcohol for use in the production of gasohol for personal use pursuant to section seven-a, article four of this chapter.
Nothing in this section shall be so construed as to exempt such users of ethyl alcohol from the license and transportation provisions of this chapter.
Any medicine containing sufficient medication to prevent its use as a beverage;
Any medicinal preparation manufactured in accordance with formulas prescribed by the United States pharmacopoeia, and national formulary, patent and proprietary preparations, and other bona fide medical and technical preparations, which are manufactured and sold to be used exclusively as medicine and not as beverages, and the sale of which does not now require the payment of a United States liquor dealer's tax;
Toilet, medicinal and antiseptic preparations not intended for internal human use nor for beverage purposes;
Any food products known as flavoring extracts manufactured and sold for cooking and culinary purposes only and not for beverage purposes;
Nor shall such provisions prevent pharmacists, retail druggists or drugstores employing a duly licensed pharmacist, from purchasing or causing to be shipped to their place of business ethyl alcohol for use in compounding or manufacturing any of the medical or other preparations enumerated in this section, as provided in section six, article four of this chapter.
(1) A physician from prescribing the use of alcoholic liquors when necessary for a bona fide patient;
(2) A druggist from selling, upon a prescription properly issued by a physician, alcoholic liquors for medicinal purposes;
(3) A physician, dentist, or veterinarian, in the legitimate practice of his profession, from using and administering alcoholic liquors;
(4) Hospitals, sanitariums, or that division of any institution which is regularly conducted as a hospital, dispensary or infirmary, from using or administering alcoholic liquors to bona fide patients. Institutions and the divisions thereof provided in this section may carry a stock of alcoholic liquors sufficient for this purpose;
(5) Religious organizations from using wine for sacramental purposes.
(1) Manufacture or sell in this state without a license any alcoholic liquor except as permitted by this article;
(2) Aid or abet in the manufacture or sale of alcoholic liquor without a license except as permitted by this article;
(3) Sell without a license any alcoholic liquor other than permitted by this article;
(4) Adulterate any alcoholic liquor by the addition of any drug, methyl alcohol, crude, unrectified or impure form of ethyl alcohol, or other foreign or deleterious substance or liquid;
(5) Refill, with alcoholic liquor, any bottle or other container in which alcoholic liquor has been sold at retail in this state;
(6) Advertise any alcoholic liquor in this state except in accordance with the rules and regulations of the commissioner; or
(7) Distribute, deal in, process, or use crowns, stamps or seals required under the authority of this chapter, except in accordance with the rules and regulations prescribed by the commissioner.
A person who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than five hundred dollars, or confined in jail not less than thirty days nor more than one year or both such fine and imprisonment, for the first offense. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary for a period not to exceed three years.
An indictment for any first violation of subdivisions (1), (2) and (3) of this section, or any of them, shall be sufficient if in form or effect as follows:
State of West Virginia
County of ..........................., to wit:
The Grand Jurors of the State of West Virginia, in and for the body of the County of .........., upon their oaths present that ..............., on the ....... day of ........, 19...., in the said County of .........., did unlawfully, without a State license and without authorization under the Alcohol Beverage Control Act, manufacture and sell, and aid and abet in the manufacture and sale of a quantity of alcoholic liquor, against the peace and dignity of the State.
Any indictment under this section shall otherwise be in conformity with section one, article nine, chapter sixty-two of the code.
(1) Sell alcoholic liquors of a kind other than that which such license or this chapter authorizes him to sell;
(2) Sell beer to which wine, spirits, or alcohol has been added;
(3) Sell wine to which other alcoholic spirits have been added, otherwise than as required in the manufacture thereof under regulations of the commission;
(4) Sell alcoholic liquors to a person specified in section twenty-two, article three of this chapter;
(5) Sell alcoholic liquors except as authorized by his license;
(6) Sell any alcoholic liquor when forbidden by the provisions of this chapter;
(7) Keep on the premises covered by his license alcoholic liquor other than that which he is authorized to sell by such license or by this chapter.
A person who violates any provision of this section shall be guilty of a misdemeanor and upon conviction shall be fined not less than fifty nor more than five hundred dollars, or confined in jail not less than thirty days nor more than one year, or both such fine and imprisonment for the first offense. Upon conviction of a second or subsequent offense, the court may in its discretion impose a penalty of confinement in the penitentiary for a period not to exceed three years.
(a) A person may not:
(1) Appear in a public place in an intoxicated condition;
(2) Drink alcoholic liquor in a public place;
(3) Tender a drink of alcoholic liquor to another person in a public place;
(4) Possess alcoholic liquor in the amount in excess of ten gallons, in containers not bearing stamps or seals of the commissioner, without having first obtained written authority from the commissioner therefor; or
(5) Possess any alcoholic liquor which was manufactured or acquired in violation of the provisions of this chapter.
(b) Any law-enforcement officer may arrest without a warrant and take the following actions against a person who, in his or her presence, violates subdivision (1) of subsection (a) of this section: (1) If there is some nonintoxicated person who will accept responsibility for the intoxicated person, the officer may issue the intoxicated person a citation specifying a date for appearance before a judicial officer and release him or her to the custody of the individual accepting responsibility: Provided, That the issuance of a citation shall be used whenever feasible; (2) if it does not impose an undue burden on the officer, he or she may, after issuance of the a citation, transport the individual to the individual's present residence or arrange for the transportation; (3) if the individual is incapacitated or the alternatives provided in subdivisions (1) and (2) of this subsection are not possible, the officer shall transport or arrange for transportation to the appropriate judicial officer as defined by section seventeen, article eleven, chapter twenty-seven of this code; or (4) if the individual is incapacitated and, in the law-enforcement officer's judgment, is in need of acute medical attention, that officer shall arrange for transportation by ambulance or otherwise to a hospital emergency room. The officer shall accompany the individual until he or she is discharged from the emergency room or admitted to the hospital. If the individual is released from the emergency room, the officer may proceed as described in subdivisions (1), (2) and (3) of this subsection. If the individual is admitted to the hospital, the officer shall issue a citation to the individual specifying a date for appearance before a judicial officer.
(c) Upon presentment before the proper judicial officer, the law-enforcement officer serves as the chief complaining witness. The judicial officer shall determine if there is probative evidence that the individual may be guilty of the charge of public intoxication. If such evidence is not presented, the charge shall be dismissed and the individual released. If sufficient evidence is presented, the judicial officer shall issue a warrant and establish bail or issue a summons to the individual. Once a warrant or summons has been issued, the following actions may be taken:
(1) If the individual is no longer incapacitated, he or she may be released;
(2) If the individual is still incapacitated but a nonintoxicated person is available to accept responsibility for him or her, he or she may be released to the responsible person; or
(3) If the individual is still incapacitated and no responsible person is available, the judicial officer shall proceed under the provisions of article five or six-a, chapter twenty-seven of this code.
(d) Any law-enforcement officer may arrest and hold in custody, without a warrant, until complaint may be made before a judicial officer and a warrant or summons issued, any person who in the presence of the law-enforcement officer violates any one or more of subdivisions (1) through (6), subsection (a) of this section: Provided, That the law-enforcement officer may use reasonable force to prevent harm to himself or herself, the individual arrested or others in carrying out the provisions of this section.
(e) Any person who violates subdivision (1), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be sentenced by a judicial officer in accordance with the following options:
(1) Upon first offense, a fine of not less than $5 nor more than $100. If the individual, prior to conviction, agrees to voluntarily attend an alcohol education program of not more than six hours duration at the nearest community mental health -- mental retardation center, the judicial officer may delay sentencing until the program is completed and upon completion may dismiss the charges;
(2) Upon conviction for a second offense, a fine of not less than $5 nor more than $100 and not more than sixty days in jail or completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center;
(3) Upon third and subsequent convictions, a fine of not less than $5 nor more than $100 and not less than five nor more than sixty days in jail or a fine of not less than $5 nor more than $100 and completion of not less than five hours of alcoholism counseling at the nearest community mental health -- mental retardation center: Provided, That three convictions for public intoxication within the preceding six months is considered evidence of alcoholism. For the educational counseling programs described in this subsection the community mental health -- mental retardation center may charge each participant its usual and customary fee and shall certify in writing to the referring judicial officer the completion or failure to complete the prescribed program for each individual.
(f) A person charged with a violation of subdivision (1), subsection (a) of this section who is an alcoholic shall be found not guilty by reason of addiction and proper disposition made pursuant to articles five and six-a, chapter twenty-seven of this code.
(g) Any person who violates subdivision (2), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $5 nor more than $100; and upon a second or subsequent conviction thereof, shall be fined not less than $5 nor more than $100, or confined in jail not more than sixty days, or both.
(h) Any person who violates subdivision (3), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $5 nor more than $100, or confined in jail not more than sixty days, or both.
(i) Any person who violates subdivision (4) or (5), subsection (a) of this section is guilty of a misdemeanor and, upon his or her first conviction, shall be fined not less than $100 nor more than $500; and upon conviction of second or subsequent offense, he or she is guilty of a felony and, shall be confined in a state correctional facility for a period of not less than one year nor more than three years.
A person who, without authorization under this chapter, transports alcoholic liquors in quantities in excess of one gallon or in any amount for the purpose of sale or in any amount manufactured or acquired contrary to the provisions of this chapter, shall be guilty of a misdemeanor, and upon conviction shall be fined not less than one hundred nor more than five hundred dollars, or confined in jail not to exceed one year, or both such fine and imprisonment for the first offense. Upon conviction of a second or subsequent offense, he shall be guilty of a felony and confined in the penitentiary of this state for a period of not less than one nor more than three years.
(1) Consigned to the commission;
(2) Transported upon the direction of the commission directly to persons licensed to receive alcoholic liquors at wholesale; or
(3) Transported into the state or through the state to persons outside the state upon transportation permits issued by the commissioner.
Acts, 1937 Reg. Sess., Ch. 14.
If, by the provisions of this chapter, conflicting penalties are prescribed for an offense, the section providing for the heavier penalty shall control.
If two or more persons conspire to maintain such common and public nuisance or to distill, manufacture, store, transport, sell, give away, or furnish alcoholic liquor in violation of any of the provisions of this chapter, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or by confinement in jail for not less than one month nor more than six months, or in the discretion of the court, by both such fine and imprisonment.
The continuance of the injunction as provided in this section may be ordered, although the place complained of may not at the time of hearing be unlawfully used.
Warrants issued under this chapter for the search of any automobile, boat, conveyance or vehicle, or for the search of any trunk, grip or other article of baggage, for alcoholic liquor, may be executed in any part of the state where the same are overtaken, and shall be made returnable before any justice of the peace, circuit, criminal or intermediate court, or the judge thereof in vacation, or the mayor of any city, town or village within whose jurisdiction such automobile, boat, conveyance, vehicle, trunk, grip or other article of baggage, or any of them, were transported or attempted to be transported contrary to law.
An officer charged with the execution of a warrant issued under this section, may, whenever it is necessary, break open and enter a house, or other place herein described.
Any such conveyance forfeited to the state under the provisions of this section shall be turned over to the commission, which may retain the same for public use in the administration and enforcement of this chapter. If it has no need for the conveyance, it may order its destruction or sale unless the department of public safety requests it, in which case the commission shall turn it over to the said department.
The net proceeds of sales made under this section shall be paid into the state treasury in the manner prescribed for receipts from state stores and agencies.
(1) When such articles, conveyances or vehicles have been seized under or without a warrant provided for in section eighteen of this article, by an officer charged with the enforcement of this chapter, the officer shall take possession of such article, conveyance or vehicle and deliver the same and the alcoholic liquors so seized to the sheriff of the county in which such seizure was made, taking his receipt therefor in duplicate.
(2) The officer making such seizure shall forthwith report in writing of such seizure to the prosecuting attorney of the county in which such seizure was made and to the commission.
(3) Within not less than ten days nor more than sixty days after receiving notice of any such seizure, the prosecuting attorney for the county shall file, in the name of the state, a petition against the seized property, in the clerk's office of the circuit court of the county, returnable to the circuit court or inferior court having criminal jurisdiction, which petition shall be filed by the clerk without fee and may be heard by said court or judge thereof in vacation.
(4) Such petition shall allege the seizure, and set forth in general terms, the grounds of forfeiture of the seized property, and shall pray that the same be forfeited to the state and the proceeds disposed of according to law, and that all persons concerned or interested may appear and show cause why said property should not be forfeited to the state.
(5) The owner of and all persons in any manner then indebted or liable for the purchase price of said property, and any person having a lien thereon, if they be known to the prosecuting attorney, shall be made parties defendant thereto, and shall be served with the notice issued by the clerk of such court, hereinafter provided for in the manner provided by law for serving a notice, at least ten days before the day therein specified for the hearing on said petition, if they be residents of this state, and, if they be unknown or nonresidents, or cannot with reasonable diligence be found in this state, they shall be deemed sufficiently served by publication of said notice as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be said county.
(6) Any person claiming to be the owner of such seized property, or to hold a lien thereon or have an interest therein, may appear at any time before final judgment of the trial court, and be made a party defendant to the petition so filed, which appearance shall be by answer, under oath, in which shall be clearly set forth the nature of such defendant's claim or interest.
(7) If the court or judge thereof in vacation shall find that illegally acquired alcoholic liquors or alcoholic liquors being illegally transported in amounts in excess of one gallon, were not found in such conveyance or vehicle at the time of the seizure thereof, the judgment of the court shall be to entirely relieve said property from forfeiture, and no costs shall be taxed against such claimant.
(8) If the court or judge thereof in vacation trying the issue shall find or if it be admitted that said conveyance or vehicle at the time of the seizure contained illegally acquired liquor or that alcoholic liquors were being illegally transported therein, nevertheless:
(a) If it shall appear to the satisfaction of the court that such claimant is the bona fide owner and was such owner at the time of such seizure and that he was ignorant of such illegal use thereof and the illegal use was without his connivance or consent, expressed or implied, the court shall relieve said conveyance or vehicle from forfeiture and restore it to such claimant and no cost shall be taxed against such claimant,
(b) If it shall appear to the satisfaction of the court that such claimant is the holder of a bona fide lien against the property and was the holder of such lien at the time of such seizure and that he was ignorant of such illegal use thereof, or the use so made of such conveyance or vehicle was without his connivance or consent, expressed or implied, and that the claimant has perfected his lien, the court shall,
(1) If the lien so established is equal to or more than the value of the conveyance or vehicle, such conveyance or vehicle shall be delivered to the lienor upon the payment of storage and cost,
(2) If the lien is less than the value of the conveyance or vehicle, the lienor may have said conveyance or vehicle delivered to him upon payment of the difference in amount as determined in such proceedings; but should the lienor not demand delivery as aforesaid, an order shall be made for the sale of said property by the sheriff of the county, in the manner prescribed by law for sale of personal property under execution, out of the proceeds of which sale shall be paid, first, the storage, if any, second, the cost, third, the lien, and the residue, if any, shall be paid to the commission.
(9) If, however, no valid lien or claim is established against the seized property upon the trial of the petition, or, if it shall be determined that the owner thereof was himself using the same at the time of the seizure or that such illegal use was with his knowledge or consent, expressed or implied, the said property shall be completely forfeited to the state and turned over to the commission in accordance with the provisions of this chapter.
(10) In every case, the alcoholic liquors so seized shall be deemed contraband and forfeited to the state as heretofore provided.
The size of display and location of said blood-alcohol chart shall be prescribed by the commissioner, by rule and regulation. Enforcement of the posting provisions of this section shall be carried out by the West Virginia nonintoxicating beer commissioner in establishments which are required to post such notice but are not subject to the supervision of the West Virginia alcohol beverage control commissioner.
(1) If a licensee holds a license providing for the retail sale of alcoholic liquor, wine or nonintoxicating beer for on-premises consumption, the sign shall be posted in an open and prominent place in the licensed portion of the establishment: Provided, That self-service "mini-bars" in hotel guest rooms are exempt: Provided, however, That airports, convention centers, sports facilities and other licensed premises with more than one authorized location of sales, service and consumption shall post signs in plain view to the majority of patrons entering or approaching the licensed portion of the premises.
(2) If the licensee holds a license providing for the retail sale of alcoholic liquor, wine or nonintoxicating beer for off-premises consumption, the sign shall be posted in plain view at the main entrance to the licensed premises.
(3) If the licensee is a liquor manufacturer, the notices shall be posted in plain view at the main entrance to areas where alcohol is sold for off-premises consumption. If a manufacturer's tasting rooms have separate buildings or separate entrances, the sign shall be posted in plain view at the main entrance to the tasting area.
(b) The alcohol beverage control commissioner shall make signs and replacements warning of the possible danger of birth defects which may result from the consumption of alcohol during pregnancy available to each licensee governed by the provisions of this section.
(c)(1) Upon a determination by the commissioner that a licensee has failed to comply with the provisions of this section, the commissioner may impose a civil administrative penalty of not less than one hundred dollars nor more than one thousand dollars for each violation. The provisions of section fifteen of this article shall not apply to a violation of this section.
(2) The commissioner shall propose legislative rules for promulgation pursuant to the provisions of chapter twenty-nine-a of this code setting forth:
(A) Objective criteria against which the exercise of the commissioner's discretion in the determination of whether to impose a civil administrative penalty is to be measured; and
(B) Procedures meeting the requirements of due process through which an alleged violation of this section may be contested.
(3) The proceeds of civil administrative penalties collected for violations of this section shall be deposited in a fund hereby established in the state treasury to be known as the "fetal alcohol syndrome fund". The commissioner shall expend the moneys deposited in the fund to educate the public concerning the dangers of fetal alcohol syndrome without appropriation except as provided in this subsection. After the sum of five thousand dollars has been deposited into the fund during a fiscal year, any additional deposits shall be divided as follows: (1) An amount necessary to allow the commissioner to carry out his or her duties pursuant to this section, not to exceed one half of such additional deposits, shall be deposited in the alcohol beverage control administration fund; and (2) the remainder of such additional deposits shall be made to the state fund, general revenue. Any moneys remaining in the fund on the thirtieth day of June of each year shall be subject to reappropriation for expenditure during the following fiscal year. The commissioner shall annually file a report with the president of the Senate and the speaker of the House of Delegates, informing the Legislature as to the amounts deposited in the funds, and the purposes for which the amounts deposited in the alcohol beverage control administration fund were expended.
(a) When a person pleads guilty to or is found guilty of a violation of subdivision (1), subsection (a), section nineteen, article sixteen, chapter eleven of this code; subsection (b), section nineteen, article sixteen, chapter eleven of this code; subsection (a), section twenty-two-a, article three of this chapter; subdivision (1), subsection (a), section twenty-four, article three-a of this chapter; subsection (b), section twenty- four, article three-a of this chapter; subsection (a) or (b), section twelve-a, article seven of this chapter; or subsection (a) or (b), section twenty-a, article eight of this chapter, the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him or her on probation upon terms and conditions it considers appropriate, if the person has not previously been convicted of:
(1) Any of the offenses contained in the code provisions referenced in this subsection; or
(2) Any statute of the United States or of any state relating to underage purchase, consumption, sale, service or possession of nonintoxicating beer or alcoholic liquor.
(b) If the person violates a term or condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided by law.
(c) Upon fulfillment of the terms and conditions of the probation, the court shall discharge the person and dismiss the proceedings against him or her.
(1) Discharge and dismissal under this section is without adjudication of guilt and is not a conviction for purposes of this section or the section of the original charge, or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.
(2) The effect of the discharge and dismissal is to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial.
(3) A person to whom a discharge and dismissal have been effected under this section may not be found guilty of perjury, false swearing or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial relating to a charge discharged and dismissed by this section in response to any inquiry made of him or her for any purpose.
(d) There may be only one discharge and dismissal under this section with respect to any one person.
(e) After a period of not less than six months after the expiration of a term of probation imposed upon a person under the provisions of this section, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial and discharge pursuant to this section. If the court determines after a hearing that the person during the period of his or her probation and during the period prior to his or her application to the court under this subsection has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.
(f) Notwithstanding any provision of this code to the contrary, any person prosecuted for an alleged violation of an offense listed in subsection (a) of this section, whose case is disposed of pursuant to the provisions of this section, is liable for all court costs assessable against a person convicted of a violation of the section under which the person was prosecuted. Payment of the costs may be made a condition of probation. The costs assessed pursuant to this section, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty of this code; section four, article two-a, chapter fourteen of this code; section four, article twenty-nine, chapter thirty of this code; and sections two, seven and ten, article five, chapter sixty-two of this code.
Note: WV Code updated with legislation passed through the 2015 Regular Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.