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Introduced Version House Bill 2918 History

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Key: Green = existing Code. Red = new code to be enacted


H. B. 2918


(By Delegates Marshall, Yeager,

Stemple, Williams and Ashley)


[Introduced March 20, 2001 ; referred to the

Committee on Agriculture and Natural Resources then the Judiciary.]



A BILL to amend and reenact section five, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article seven of said chapter; and to amend article seven of said chapter by adding thereto two new sections, designated sections eighteen-c and eighteen-d, all relating to making it unlawful to hunt or trap while under the influence of alcohol or other drugs, including implied consent; and implied consent to test for alcohol for operators of motor boats.

Be it enacted by the Legislature of West Virginia:

That section five, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and to amend and reenact section four,
article seven; and that article seven of said chapter be amended by adding thereto two new sections, designated sections eighteen-c and eighteen-d, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.
Except as authorized by the director, it is unlawful at any time for any person to:
(1) Shoot at or to shoot any wild bird or animal unless it is plainly visible to him or her;
(2) Dig out, cut out or smoke out, or in any manner take or attempt to take, any live wild animal or wild bird out of its den or place of refuge, except as may be authorized by rules promulgated by the director or by law;
(3) Make use of, or take advantage of, any artificial light in hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal, or to attempt to do so, while having in his or her possession or subject to his or her control, or for any person accompanying him or her to have in his or her possession or subject to his or her control, any firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or animal: Provided, That it may not be unlawful to hunt or take raccoon, opossum or skunk by the use of artificial lights. No person shall be guilty of a violation of this subdivision merely because he or she looks for, looks at, attracts or makes motionless a wild bird or wild animal with or by the use of an artificial light, unless at such time he or she has in his or her possession a firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or wild animal, or unless such artificial light (other than the head lamps of an automobile or other land conveyance) is attached to, a part of, or used from within or upon an automobile or other land conveyance.
Any person violating the provisions of this subdivision shall be guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than five hundred dollars and shall be imprisoned in the county jail for not less than ten days nor more than one hundred days;
(4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane, or other airborne conveyance, an automobile, or other land conveyance, or from a motor-driven water conveyance, except as may be authorized by rules promulgated by the director;
(5) Take any beaver or muskrat by any means other than by trap;
(6) Catch, capture, take or kill by seine, net, bait, trap or snare or like device of any kind, any wild turkey, ruffed grouse, pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the nest or eggs of any wild bird or have in his or her possession such nest or eggs unless authorized to do so under rules promulgated by or under a permit issued by the director;
(9) Except as provided in subdivision (11) below or in section six of this article, carry an uncased or loaded gun after the hour of five o'clock antemeridian on Sunday in any woods or on any highway, railroad right-of-way, public road, field or stream of this state, except at a regularly used rifle, pistol, skeet, target or trapshooting ground or range;
(10) Have in his or her possession a loaded firearm or a firearm from the magazine of which all shells and cartridges have not been removed, in or on any vehicle or conveyance, or its attachments, within the state, except as may otherwise be provided by law or regulation. Except as hereinafter provided, between five o'clock postmeridian of one day and seven o'clock antemeridian, eastern standard time of the day following, any unloaded firearm, being lawfully carried in accordance with the foregoing provisions, shall be so carried only when in a case or taken apart and securely wrapped. During the period from the first day of July to the thirtieth day of September, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms shall be permissible only from eight-thirty o'clock postmeridian to five o'clock antemeridian, eastern standard time: Provided, That the time periods for carrying unloaded and uncased firearms are extended for one hour after the postmeridian times and one hour before the antemeridian times established above if a hunter is preparing to or in the process of transporting or transferring the firearms to or from a hunting site, campsite, home or other place of abode;
(11) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday any wild animals or wild birds: Provided, That traps previously and legally set may be tended after the hour of five o'clock antemeridian on Sunday, and the person so doing may carry only a twenty-two caliber firearm for the purpose of humanely dispatching trapped animals;
(12) Hunt or trap when in possession of a with firearms or long firearm or bow while: under the influence of intoxicating liquor; he or she is under the influence of alcohol; or (b) he or she is under the influence of any controlled substance; or (c) he or she is under the influence of any other drug; or (d) he or she is under the combined influence of alcohol and any controlled substance or any other drug; or (e) he or she has an alcohol concentration in his or her blood of ten hundredths of one percent or more, by weight;
Any person who hunts or traps in this state shall be deemed to have given his or her consent by the mere fact of his or her hunting or trapping, to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purpose of determining the alcoholic content of his or her blood. These tests shall be administered under the same provisions as those in section four, article five, chapter seventeen-c and other related provisions of the West Virginia code just as if the person had been driving a motor vehicle or a motorboat.
For the purpose of this subsection, the term "law-enforcement officer" shall have the same meaning as that set forth in section four, article five, chapter seventeen-c.
Any person refusing to submit to the secondary chemical test finally designated will be punished by a revocation of his or her privilege to hunt or trap in this state for a period of one year. Refusal to submit to the test on a second or subsequent offense will be punished by a revocation of his or her privilege to hunt in this state for a period up to five years;

(13) Hunt, catch, take, kill, injure or pursue a wild animal or bird with the use of a ferret;
(14) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(15) Catch, take, kill or attempt to catch, take or kill any fish at any time by any means other than by rod, line and hooks with natural or artificial lures unless otherwise authorized by law or rules issued by the director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be lawful;
(16) Employ or hire, or induce or persuade, by the use of money or other things of value, or by any means, any person to hunt, take, catch or kill any wild animal or wild bird except those species on which there is no closed season, or to fish for, catch, take or kill any fish, amphibian or aquatic life which is protected by the provisions of this chapter or rules of the director, or the sale of which is prohibited;
(17) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States for the protection of migratory birds and wild mammals concluded, respectively, the sixteenth day of August, one thousand nine hundred sixteen, and the seventh day of February, one thousand nine hundred thirty-six, except during the time and in the manner and numbers prescribed by the Federal Migratory Bird Treaty Act and regulations made thereunder;
(18) Kill, take, catch or have in his or her possession, living or dead, any wild bird, other than a game bird; or expose for sale, or transport within or without the state any such bird, except as aforesaid. No part of the plumage, skin or body of any protected bird shall be sold or had in possession for sale, except mounted or stuffed plumage, skin, bodies or heads of such birds legally taken and stuffed or mounted, irrespective of whether such bird was captured within or without this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris), crow (Corvus brachyrhynchos) and cowbird (Molothrus ater), which may not be protected and the killing thereof at any time is lawful;
(19) Use dynamite or any like explosive or poisonous mixture placed in any waters of the state for the purpose of killing or taking fish. Any person violating the provisions of this subdivision shall be guilty of a felony and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned for not less than six months nor more than three years, or both fined and imprisoned;
(20) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;
(21) Have a crossbow in the woods or fields or use a crossbow to hunt for, take or attempt to take any wildlife;
(22) Take or attempt to take turkey, bear, elk or deer with any arrow unless the same is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;
(23) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow or an arrow which would affect wildlife by any chemical action;
(24) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;
(25) Permit any dog owned by him or her or under his or her control to chase, pursue or follow upon the track of any wild animal or wild bird, either day or night, between the first day of May and the fifteenth day of August next following: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner or by his or her bona fide tenant or tenants or upon the grounds or lands of another person with his or her written permission or on public lands, at any time: Provided, however, That nonresidents may not train dogs in this state at any time except during the legal small game hunting season: Provided further, That the person training said dogs does not have firearms or other implements in his or her possession during the closed season on such wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;
(26) Conduct or participate in a field trial, shoot-to-retrieve field trial, water race or wild hunt hereafter referred to as trial: Provided, That any person, group of persons, club or organization may hold such trial at any time of the year upon obtaining such permit as is provided for in section fifty-six of this article. The person responsible for obtaining said permit shall prepare and keep an accurate record of the names and addresses of all persons participating in said trial, and make same readily available for inspection by any conservation officer upon request; and
(27) Except as provided in section four of this article, hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the open season established by rule of the director as authorized by subdivision (6), section seven, article one of this chapter.
ARTICLE 7. LAW-ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-4. Powers and duties of conservation officers.
Conservation officers and all other persons authorized to enforce the provisions of this chapter shall be under the supervision and direction of the director in the performance of their duties as herein provided. The authority, powers and duties of the conservation officers shall be statewide and they shall have authority to:
(1) Arrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of any of the laws of this state, in the presence of such officer, but no such arrest shall be made where any form of administrative procedure is prescribed by this chapter for the enforcement of any of the particular provisions contained herein;
(2) Carry such arms and weapons as may be prescribed by the director in the course and performance of their duties, but no license or other authorization shall be required of such officers for this privilege;
(3) Search and examine, in the manner provided by law, any boat, vehicle, automobile, conveyance, express or railroad car, fish box, fish bucket or creel, game bag or game coat or any other place in which hunting and fishing paraphernalia, wild animals, wild birds, fish, amphibians or other forms of aquatic life could be concealed, packed or conveyed whenever they have reason to believe that they would thereby secure or discover evidence of the violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any process of law issued under the authority of this chapter or any law relating to wildlife, forests and all other natural resources, by a magistrate or any court having jurisdiction thereof, in the same manner, with the same authority, and with the same legal effect, as any sheriff can serve or execute such warrant, notice or process;
(5) Require the operator of any motor vehicle or other conveyance on or about the public highways or roadways or in or near the fields and streams of this state, to stop for the purpose of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing any warrants, notices or processes, and they shall have the same rights and powers as sheriffs have in their respective counties in so doing;
(7) Enter private lands or waters within the state while engaged in the performance of their official duties hereunder;
(8) Arrest on sight, without warrant or other court process, subject to the limitations set forth in subdivision (1) of this section, any person or persons committing a criminal offense in violation of any law of this state in the presence of any such officer on any state-owned lands and waters and lands and waters under lease by the division of natural resources and all national forest lands, waters and parks, and U. S. Corps of Army Engineers' properties within the boundaries of the state of West Virginia and, in addition to any authority conferred in the other subdivisions of this section, execute all warrants of arrest on such state and national lands, waters and parks and U. S. Corps of Army Engineers' properties, consistent with the provisions of article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away or cause to be cut, damaged or carried away any timber, trees, logs, posts, fruit, nuts, growing plants, or products of any growing plant. Any person convicted of the foregoing shall be liable to the owner in the amount of three times the value of the timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant, which shall be in addition to and notwithstanding any other penalties by law provided by section thirteen, article three, chapter sixty of this code;
(10) Where a conservation officer or other law enforcement officer knows or has reason to believe that a person has, on any state-owned lands and waters and lands and waters under lease or managed by the division of natural resources and all national forest lands, waters and parks national parks properties and U. S. Army Corps of Engineers' properties within the boundaries of this state, violated any law of this state or the rules promulgated thereunder, he or she may make a complaint in writing before any court or officer having jurisdiction, procure a warrant, execute the same and bring the person before the tribunal having jurisdiction, and any such action by a conservation officer or other law-enforcement officer shall have the same force and effect as if made by a sheriff;
(11) Stop and board any vessel subject to this chapter for the purpose of conducting safety checks and make arrests for any violations of the West Virginia Code or rules promulgated thereunder detected during such safety check;
(12) Serve and execute warrants for the arrest of any person and warrants for the search of any premises, buildings, properties or conveyances issued by a properly constituted authority, in conjunction with the authority granted in subsections (1), (3), (4), (8), (9), (10), (11) and (12) of this article and may exercise all the powers conferred by law upon a sheriff.
(10) (13) Do all things necessary to carry into effect the provisions of this chapter.
Part II. Motorboating.

§20-7-18c. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

Any person who operates a motorboat or vessel in this state shall be considered to have given his or her consent by the operation thereof, subject to the provisions of this article, 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. 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 to have committed an offense prohibited by section eighteen-b of this article. A secondary test of blood, breath or urine shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense prohibited by section eighteen-b of this article. The law-enforcement agency by which such law-enforcement officer is employed shall designate which one of the aforesaid secondary tests shall be administered: Provided, That if the test so designated is a blood test and the person so arrested refuses to submit to the blood test, then the law-enforcement officer making the arrest shall designate in lieu thereof, either a breath or urine test to be administered and notwithstanding the provisions of section seven, chapter seventeen-c of the West Virginia code such 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. 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 finally designated as provided in this section, will result in the revocation of his privilege to operate a motorboat or vessel in this state for a period of at least one year and up to life.
For the purpose of this article, the term "law-enforcement officer" or "police officer" means and is limited to: (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 as provided for under the provisions of section nine, article twenty-nine, chapter thirty of this code. Any law-enforcement officer who has been properly trained in the administration of any secondary chemical test which a law-enforcement officer may conduct under 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 that the equipment and the facilities may be found. However, when the arresting officer lacks training, 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 a secondary test and the results of the test 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. Only the person actually administering or conducting the test shall be competent to testify as to the results and the veracity of the test.
§20-7-18d. Implied consent to tests; administration at direction of law-enforcement officers; designation of type of test; definition of law-enforcement officer.

Any person who operates a motorboat or vessel in this state shall be considered to have given his or her consent by the operation thereof, 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. These tests shall be administered under the same provisions as those in article five, chapter seventeen-c and other related articles of the West Virginia code just as if the person had been driving a motor vehicle.
For the purpose of this article, the term "law-enforcement" shall have the same meaning as that outlined in article five.


NOTE: The purpose of this bill is to create penalties for hunting and while under the influence of alcohol or other drugs and to subject those persons operating a motor boat and suspected of doing so under the influence, to testing for alcohol.

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

§§20-7-18c and 18d are new; therefore, strike-throughs and underscoring have been omitted.
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