H. B. 3152

         (By Delegate Storch)

          (By Request)

         [Introduced March 25, 2013; referred to the

         Committee on the Judiciary then Finance.]

A BILL to amend and reenact §17C-5-4, §17C-5-5, §17C-5-6 and §17C-5-8 of the Code of West Virginia, 1931, as amended, all relating to the criminal offense of driving a motor vehicle in this state under the influence of alcohol, controlled substances or drugs; establishing implied consent by drivers to a secondary test of his or her blood or urine to determine the presence and level of controlled substances or other drugs; providing for arrest by a law-enforcement officer after a preliminary breath test to determine a person's blood alcohol content in certain instances; establishing procedure to obtain blood for the purpose of determining the presence and level of controlled substances or other drugs; evidentiary use of results of tests of blood or urine for the presence and level of controlled substances or other drugs; and establishing prima facie evidence that a person is under the influence of a controlled substance or other drug.

Be it enacted by the Legislature of West Virginia:

    That §17C-5-4, §17C-5-5, §17C-5-6 and §17C-5-8 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-4. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

    (a) Any person who drives a motor vehicle in this state is considered to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood and a secondary chemical test of either his or her blood or urine for the purposes of determining the presence and the level of controlled substances or other drugs in his or her blood or urine.

    (b) A preliminary breath analysis may be administered in accordance with the provisions of section five of this article whenever a law-enforcement officer has reasonable cause to believe a person has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article.

    (c) A secondary test of blood, breath or urine is incidental to a lawful arrest and is to be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article.

    (d) The law-enforcement agency that employs the law-enforcement officer shall designate which type of secondary test is to be administered: Provided, That if the test designated is a blood test and the person arrested refuses to submit to the blood test, then the law-enforcement officer making the arrest shall designate either a breath or urine test to be administered. Notwithstanding the provisions of section seven of this article, the refusal to submit to a blood test only may not result in the revocation of the arrested person’s license to operate a motor vehicle in this state.

    (e) Any person to whom a preliminary breath test is administered who is then arrested shall be given a written statement advising him or her that his or her refusal to submit to the secondary chemical test pursuant to subsection (d) of this section, will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least one year and up to life.

    (f) Any law-enforcement officer who has been properly trained in the administration of any secondary chemical test authorized by this article, including, but not limited to, certification by the Bureau for Public Health in the operation of any equipment required for the collection and analysis of a breath sample, may conduct the test at any location in the county wherein the arrest is made: Provided, That the law-enforcement officer may conduct the test at the nearest available properly functioning secondary chemical testing device located outside the county in which the arrest was made, if: (i) There is no properly functioning secondary chemical testing device located within the county the arrest was made; or (ii) there is no magistrate available within the county the arrest was made for the arraignment of the person arrested. A law-enforcement officer who is directing that a secondary chemical test be conducted has the authority to transport the person arrested to where the secondary chemical testing device is located.

    (g) If the arresting officer lacks proper training in the administration of a secondary chemical test, then any other law-enforcement officer who has received training in the administration of the secondary chemical test to be administered may, upon the request of the arresting law-enforcement officer and in his or her presence, conduct the secondary test. The results of a test conducted pursuant to this subsection may be used in evidence to the same extent and in the same manner as if the test had been conducted by the arresting law-enforcement officer.

    (h) Only the person actually administering or conducting a test conducted pursuant to this article is competent to testify as to the results and the veracity of the test.

    (i) For the purpose of this article, the term “law-enforcement officer” or “police officer” means: (1) Any member of the West Virginia State Police; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; (4) any natural resources police officer of the Division of Natural Resources; and (5) any special police officer appointed by the Governor pursuant to the provisions of section forty-one, article three, chapter sixty-one of this code who has completed the course of instruction at a law-enforcement training academy as provided for under the provisions of section nine, article twenty-nine, chapter thirty of this code.

    (j) A law-enforcement officer who has reasonable cause to believe that person has committed an offense prohibited by section eighteen, article seven, chapter twenty of this code, relating to the operation of a motorboat, jet ski or other motorized vessel, shall follow the provisions of this section in administering, or causing to be administered, a preliminary breath analysis and the secondary chemical test of the accused person’s blood, breath or urine for the purpose of determining alcohol content of his or her blood.

§17C-5-5. Preliminary analysis of breath to determine alcoholic content of blood.

    When a law-enforcement officer has reason to believe a person has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in said section two of this article, the law-enforcement officer may require such the person to submit to a preliminary breath analysis for the purpose of determining such person's blood alcohol content. Such The breath analysis must be administered as soon as possible after the law-enforcement officer has a reasonable belief that the person has been driving while under the influence of alcohol, controlled substances or drugs. Any preliminary breath analysis required under this section must be administered with a device and in a manner approved by the department of health for that purpose. The results of a preliminary breath analysis shall be used solely for the purpose of guiding the officer in deciding whether an arrest should be made. Following the administration of a preliminary breath test, if any law-enforcement officer still has probable cause to believe that a person has committed an offence prohibited in section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article, which violation would not be detected by a preliminary breath test, the law-enforcement officer may still place the person under arrest and the results of the preliminary test, alone, may not be a bar to arrest. When a driver is arrested following a preliminary breath analysis, the tests as hereinafter provided in this article shall be administered in accordance with the provisions thereof.

§17C-5-6. How blood test administered; additional test at option of person tested; use of test results; certain immunity from liability incident to administering test.

    Only a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his or her employment, acting at the request and direction of the law-enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof and for the purpose of determining the presence and level of controlled substances or other drugs in such blood. These limitations shall not apply to the taking of a breath test or a urine specimen. In withdrawing blood for the purpose of determining the alcoholic content thereof and for the purpose of determining the presence and level of controlled substances or other drugs in the blood, only a previously unused and sterile needle and sterile vessel may be utilized and the withdrawal shall otherwise be in strict accord with accepted medical practices. A nonalcoholic antiseptic shall be used for cleansing the skin prior to venapuncture. The person tested may, at his or her own expense, have a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his or her employment, of his or her own choosing, administer a chemical test in addition to the test administered at the direction of the law-enforcement officer. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law- enforcement officer shall be made available to him or her. No person who administers any such test upon the request of a law-enforcement officer as herein defined, no hospital in or with which such the person is employed or is otherwise associated or in which such the test is administered, and no other person, firm or corporation by whom or with which such the person is employed or is in any way associated, shall may be in anywise criminally liable for the administration of such test, or civilly liable in damages to the person tested unless for gross negligence or willful or wanton injury.

§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 and for the purpose of determining or the presence and level of controlled substances or other drugs 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 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, 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.

    (4) It is prima facie evidence that a person is under the influence of a controlled substance or other drug, if that person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following, at that time:

    (A) The person has a concentration of amphetamine in the person’s urine of at least five hundred nanograms of amphetamine per milliliter of the person’s urine or has a concentration of amphetamine in the person’s whole blood or blood serum or plasma of at least one hundred nanograms of amphetamine per milliliter of the person’s whole blood or blood serum or plasma.

    (B) The person has a concentration of cocaine in the person’s urine of at least one hundred fifty nanograms of cocaine per milliliter of the person’s urine or has a concentration of cocaine in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine per milliliter of the person’s whole blood or blood serum or plasma.

    (C) The person has a concentration of cocaine metabolite in the person’s urine of at least one hundred fifty nanograms of cocaine metabolite per milliliter of the person’s urine or has a concentration of cocaine metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine metabolite per milliliter of the person’s whole blood or blood serum or plasma.

    (D) The person has a concentration of heroin in the person’s urine of at least two thousand nanograms of heroin per milliliter of the person’s urine or has a concentration of heroin in the person’s whole blood or blood serum or plasma of at least fifty nanograms of heroin per milliliter of the person’s whole blood or blood serum or plasma.

    (E) The person has a concentration of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s urine or has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s whole blood or blood serum or plasma of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s whole blood or blood serum or plasma.

    (F) The person has a concentration of L.S.D. in the person’s urine of at least twenty-five nanograms of L.S.D. per milliliter of the person’s urine or has a concentration of L.S.D. in the person’s whole blood or blood serum or plasma of at least ten nanograms of L.S.D. per milliliter of the person’s whole blood or blood serum or plasma.

    (G) The person has a concentration of marijuana in the person’s urine of at least ten nanograms of marijuana per milliliter of the person’s urine or has a concentration of marijuana in the person’s whole blood or blood serum or plasma of at least two nanograms of marijuana per milliliter of the person’s whole blood or blood serum or plasma.

    (5) Evidence that there was, at that time, a lesser amount of any drug or controlled substance as set forth in subsection (4) above, or any other controlled substance which may impair the driver’s ability to safely operate a motor vehicle on the roads of the State of West Virginia is relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of a controlled substance or other drug.

    (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) (b) 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 alcohol 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) (c)_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.

    NOTE: The purpose of this bill is to establish procedures to obtain evidence to determine the presence of controlled substances or other drugs in a person to determine if a person driving a motor vehicle under the influence of controlled substances or drugs. The bill establishes implied consent by drivers to a secondary test of blood or urine to determine the presence and level of controlled substances or other drugs. The bill provides for arrest by a law-enforcement officer after a negative preliminary breath test to determine a person's blood alcohol content where the officer has probable cause to believe the person is driving under the influences of controlled substances or other drugs. The bill establishes a procedure to obtain blood for the purpose of determining the presence and level of controlled substances or other drugs. It provides for the evidentiary use of results of tests of blood or urine for the presence and level of controlled substances or other drugs. And, the bill establishes prima facie evidence that a person is under the influence of a controlled substance or other drug.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.