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Introduced Version Senate Bill 190 History

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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 190

(By Senator Hunter)

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[Introduced January 10, 2008; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

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A BILL to amend and reenact §17C-5-4, §17C-5-6, §17C-5-6a, §17C-5-7 and §17C-5-8 of the Code of West Virginia, 1931, as amended, all relating to creation of a drug recognition expert program within the West Virginia State Police.

Be it enacted by the Legislature of West Virginia:
That §17C-5-4, §17C-5-6, §17C-5-6a, §17C-5-7 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 tests; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer; search warrants; mandatory testing in event of death or serious bodily injury.

(a) Any person who drives a motor vehicle in this state is deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis, an evidentiary breath test and a secondary chemical test of either his or her blood breath or urine for the purposes of determining the alcoholic alcohol, any controlled substance, other drug or any combination thereof, content of his or her blood.
(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 An evidentiary 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.
If the person arrested is unable to take, or to complete or cooperate in the completing of an evidentiary breath test because of injuries, illness, disease, physical infirmity or physical incapacity, or if such person is receiving medical treatment at a location at which an evidentiary breath testing device is not available, the test shall be of such person's blood or urine.
(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 evidentiary breath test or 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 the evidentiary breath test authorized by this article, including, but not limited to, certification by the Division of 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 evidentiary breath testing device located outside the county in which the arrest was made; if (i) There is no properly functioning secondary chemical evidentiary breath 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 an evidentiary breath test be conducted has the authority to transport the person arrested to where the secondary chemical evidentiary breath testing device is located.
(g) If the arresting officer lacks proper training in the administration of a secondary chemical an evidentiary breath test, then any other law-enforcement officer who has received training in the administration of the secondary chemical evidentiary breath test to be administered may, upon the request of the arresting law-enforcement officer and in his or her presence, conduct the secondary evidentiary breath test. The results of a an evidentiary breath 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 an evidentiary breath test conducted pursuant to this article is competent to testify as to the results and the veracity of the test.
(i) Subsequent to the administration or conducting of an evidentiary breath test, or if no evidentiary breath test could be conducted for the reasons set forth in paragraph (d) of this section, any law-enforcement officer may require the person arrested to submit to a secondary chemical tests of his or her blood or urine if there is probable cause to believe that the person arrested is under the influence of any controlled substance, other drug or any combination of alcohol, controlled substance or other drug.
(i)(j) 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 conservation 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 has the same meaning as provided for under the provisions of section nine one, article twenty-nine, chapter thirty of this code.
(j)(k) 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, an evidentiary breath test, and the secondary chemical test of the accused person's blood breath or urine for the purpose of determining alcohol, any controlled substance, other drug or any combination thereof content of his or her blood.
(l) Nothing in this section is construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to any tests permitted under this section.
(m) In any event, when any driver of a vehicle involved in a motor vehicle crash that results in death or serious bodily injury to another person, then such driver shall submit to a preliminary breath test, an evidentiary breath test or a secondary chemical test of their blood or urine, at the direction of the law-enforcement officer, designed to detect and measure the existence of alcohol, controlled substances or any combination 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 employment, acting at the request and direction of the law-enforcement officer or pursuant to a judicially authorized warrant or other court order, may withdraw blood for the purpose of determining the presence and concentration of alcoholic content alcohol, controlled substances, any other drug or any combination thereof. 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, 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 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 person is employed or is otherwise associated or in which such test is administered, and no other person, firm or corporation by whom or with which such person is employed or is in any way associated, shall 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-5-6a. 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 officer 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 officer shall take the child to a facility where a secondary an evidentiary breath test of the child's blood or urine may be is administered by or 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 officer. If the child is unable to take, or to complete or to cooperate in the completing of an evidentiary breath test because of injuries, illness, disease, physical infirmity or physical incapacity or if such person is receiving medical treatment at a location at which an evidentiary breath testing device is not available, the test is of such child's blood or urine. Subsequent to the administration or conducting of an evidentiary breath test any law-enforcement officer may require the child 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 secondary chemical test of his or her blood or urine if there is probable cause to believe that the child is under the influence of any controlled substance, other drug or any combination of alcohol, controlled substance or other drug. 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 either or both an evidentiary breath test or a secondary test of either blood, breath or urine, as finally designated by the law-enforcement agency or official officer 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 officer 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 evidentiary breath test which may be administered pursuant to the provisions of this section, then the official officer who took the child into custody may request another qualified person to administer a secondary an evidentiary breath test: Provided, That the evidentiary breath test shall be administered in the presence of the official officer 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 officer who took the child into custody. The qualified person administering the breath test must be a member of the 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 evidentiary breath test is competent to testify as to the results and the veracity of the test. If the secondary chemical 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 officer has reasonable probable 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 officer 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 eight hundredths of one percent or less, by weight, and if If the law-enforcement official officer 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 officer shall release the child: Provided, That if the results of any secondary evidentiary breath 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-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.

(a) If any person under arrest as specified in section four of this article refuses to submit to any either or both the evidentiary breath test or secondary chemical test, the tests shall not be given: Provided, That prior to such refusal, the person is given a written statement advising him or her that his or her refusal to submit to the either or both the evidentiary breath test or secondary chemical test finally designated 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. If a person initially refuses to submit to the evidentiary breath test or the designated secondary chemical test after being informed in writing of the consequences of such refusal, he or she shall be informed orally and in writing that after fifteen minutes said refusal shall be deemed to be final and the arresting officer shall after said period of time expires have no further duty to provide the person with an opportunity to take the evidentiary breath test or designated secondary test. The officer shall within forty-eight hours of such refusal, sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He or she had reasonable grounds to believe such person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) such 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) such person refused to submit to the evidentiary breath or secondary chemical test finally designated in the manner provided in section four of this article; and (4) such person was given a written statement advising him or her that his or her 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 he or she refused to submit to the secondary test finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by this section 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. Upon receiving the statement the commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this state for the period prescribed by this section.
For the first refusal to submit to the evidentiary breath test or designated secondary chemical test, the commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of one year. If the commissioner has previously revoked the person's license under the provisions of this section, the commissioner shall, for the refusal to submit to the evidentiary breath or designated secondary chemical test, make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of ten years: Provided, That the license may be reissued in five years in accordance with the provisions of section three, article five-a of this chapter. If the commissioner has previously revoked the person's license more than once under the provisions of this section, the commissioner shall, for the refusal to submit to the evidentiary breath test or designated secondary chemical test, make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of life: Provided, That the license may be reissued in ten years in accordance with the provisions of section three, article five-a of this chapter. A copy of each such order shall be forwarded to such person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation and shall specify the revocation period imposed pursuant to this section. No such revocation shall become effective until ten days after receipt of the copy of such order. Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of refusal, shall be deemed not to have withdrawn his or her consent for a test of his or her blood, breath or urine as provided in section four of this article and the test may be administered although such person is not informed that his or her failure to submit to the test will result in the revocation of his or her license to operate a motor vehicle in this state for the period provided for in this section.
A revocation hereunder shall run concurrently with the period of any suspension or revocation imposed in accordance with other provisions of this code and growing out of the same incident which gave rise to the arrest for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs and the subsequent refusal to undergo the test finally designated in accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of suspensions or revocations shall also be regarded as suspensions or revocations under this section:
(1) 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 of this article, for conduct which occurred on or after the tenth day of June, tenth one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two, article five-a of this chapter, for conduct which occurred on or after the tenth day of June, tenth one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be heard, in accordance with the provisions of section two, article five-a of this chapter.
§17C-5-8. Interpretation and use of evidentiary breath or secondary 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 other drugs, or any combination thereof 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 other drugs, or any combination thereof, evidence of the amount of alcohol, controlled substances, other drugs, or any combination thereof in the person's blood at the time of the arrest or of the acts alleged, as shown by a chemical an 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 of alcohol content 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 or breath, 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 or breath 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 or breath, shall be is 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 An analysis of a person's blood, breath or urine, in order to give rise to the presumptions for alcohol 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 An analysis of blood or urine to determine the alcohol content of blood, controlled substance, any drug or any combination thereof, shall be is 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 the analysis of a person's blood or urine for alcohol, controlled substances or other drugs or any other competent evidence bearing on the question of whether the person was under the influence of alcohol, controlled substances or other drugs or any combination thereof.



NOTE: The purpose of this bill is to clarify that driving under the influence includes doing so while under the influence of any controlled substance, other drugs, or a combination of alcohol, any controlled substance or other drugs and makes the language herein consistent with other sections of this article; provides for evidentiary breath testing of impaired drivers when reasonable cause exists to believe that they have committed an offense involving the operation of a motor vehicle while under the influence of alcohol and for the testing of their blood or urine when they are unable to submit to a breath test because of injury, illness, disease, physical infirmity or physical incapacity or when receiving medical treatment; provides for a secondary chemical testing of the blood or urine of impaired drivers where there is probable cause to believe that they have committed the offense while under the influence of controlled substances, other drug, or any combination of alcohol, controlled substance or other drug; clarifies the definition of "law-enforcement officer"; clarifies that nothing in this section prohibits the use of search warrants; and to require mandatory blood, breath or urine tests from drivers involved in motor vehicle crashes that result in death or bodily injury from the crash; and also allows for the expansion of and use of drug recognition experts in the State of West Virginia.

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