Senate Bill No. 190
(By Senator Hunter)
____________
[Introduced January 10, 2008; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
____________
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.