Introduced Version
House Bill 3074 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 3074
(By Delegates Butler, Householder and Ellington)
[Introduced March 22, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §17C-5-2 of the Code of West Virginia,
1931, as amended, relating to serious traffic offenses;
driving under the influence of alcohol, controlled substances
or drugs; increasing the criminal penalties; and providing
that the changes may be cited as "Andrea's Law".
Be it enacted by the Legislature of West Virginia:
That §17C-5-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) The amendments made to this section in 2013 are enacted to
increase the criminal penalties for the offenses of driving under
the influence of alcohol, controlled substances or drugs and may be
cited as "Andrea's Law".
__(a)(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death or serious bodily
injury of any person within one year next following the act or
failure; and
(3) For a second or subsequent offense under this section the
person is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than
twenty years.
__(3) (4) Commits the act or failure in reckless disregard of
the safety of others and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death or serious bodily injury, is guilty of a felony and, upon
conviction thereof, shall be imprisoned in a state correctional
facility for not less than two five years nor more than ten twenty years and shall be fined not less than $1,000 $10,000 nor more than
$3,000 $100,000.
__(b) (c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death or serious bodily
injury of any person within one year next following the act or
failure, is guilty of a misdemeanor felony and, upon conviction
thereof, shall be confined in jail imprisoned in a state
correctional facility for not less than ninety days two nor more
than one year ten years and shall be fined not less than $500
$10,000 nor more than $1,000 $50,000.
__(c) (d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor felony
and, upon conviction thereof, shall be confined in jail imprisoned
in a state correctional facility for not less than one day ninety
days nor more than one year five years, which jail term is to
include actual confinement imprisonment of not less than
twenty-four hours ninety days, and shall be fined not less than
$200 $1,000 nor more than $1,000 $5,000.
__(d) (e) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
except as provided in section two-b of this article, shall be
confined in jail for up to six months and shall be fined not less
than $100 nor more than $500 not less than five days nor more than
one year, which jail term is to include actual confinement of not
less than forty-eight hours and shall be fined not less than $500
nor more than $2,000. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) (f) Any person who drives a vehicle in this state while he
or she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days six months nor more than six months one
year, which jail term is to include actual confinement of not less
than twenty-four seventy-two hours, and shall be fined not less
than $200 $1,000 nor more than $1,000 $5,000. A person sentenced
pursuant to this subdivision shall receive credit for any period of
actual confinement he or she served upon arrest for the subject
offense.
(f) (g) Any person who, being an habitual user of narcotic
drugs or amphetamine or any derivative thereof, drives a vehicle in
this state is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day two days nor
more than six months, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than $100 $200 nor more than $500 $1,000. A person
sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the
subject offense.
(g) (h) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months less than
two days nor more than six months which jail term is to include
actual confinement of not less than twenty-four hours and shall be
fined not less than $100 $200 nor more than $500 $1,000.
__(h) (i) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not more than six months less than two days
nor more than six months which jail term is to include actual
confinement of not less than twenty-four hours and shall be fined
not less than $100 $200 nor more than $500 $1,000.
__(i) (j) Any person under the age of twenty-one years who
drives a vehicle in this state while he or she has an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, for a first offense under this subsection is guilty of
a misdemeanor and, upon conviction thereof, shall be confined in
jail for not less than two days nor more than six months which jail
term is to include actual confinement of not less than twenty-four
hours and shall be fined not less than $25 $200 nor more than $100
$1,000. For a second or subsequent offense under this subsection,
the person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for twenty-four hours not less than six
months nor more than one year which jail term is to include actual
confinement of not less than seventy-two hours and shall be fined
not less than $100 $1,000 nor more than $500 $5,000. A person who
is charged with a first offense under the provisions of this
subsection may move for a continuance of the proceedings, from time
to time, to allow the person to participate in the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a,
article five-a of this chapter. Upon successful completion of the
program, the court shall dismiss the charge against the person and
expunge the person's record as it relates to the alleged offense.
In the event the person fails to successfully complete the program,
the court shall proceed to an adjudication of the alleged offense.
A motion for a continuance under this subsection may not be
construed as an admission or be used as evidence.
A person arrested and charged with an offense under the
provisions of this subsection or subsection (a), (b), (c), (d),
(e), (f), (g) or (h) (b), (c), (d), (e), (f), (g), (h) or (i) of
this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.
(j) (k) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person while driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two thirty days nor more than twelve months one
year, which jail term is to include actual confinement of not less
than forty-eight seventy-two hours and shall be fined not less than
$200 $1,000 nor more than $1,000 $5,000.
__(k) (l) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) (c), (d), (e), (f), (g), (h) or (j)
of this section, for the second offense under this section, is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than six months nor more than one
year and the court may, in its discretion, impose a fine of not
less than $1,000 nor more than $3,000.
(l) (m) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) (c), (d), (e), (f), (g), (h) or (j)
of this section, for the third or any subsequent offense under this
section, is guilty of a felony and, upon conviction thereof, shall
be imprisoned in a state correctional facility for not less than
one two nor more than three ten years and the court may, in its
discretion, impose a fine of not less than $3,000 $5,000 nor more
than $5,000 $15,000.
__(m) (n) For purposes of subsections (k) and (l) (l) and (m) of
this section relating to second, third and subsequent offenses, the
following events shall be regarded as offenses under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) (b), (c), (d), (e), (f), (g) or (h)
of this section or under a prior enactment of this section for an
offense which occurred within the ten-year period immediately
preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other 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 subsection (a), (b), (c), (d), (e), (f), (g) or (h)
(b), (c), (d), (e), (f), (g), (h) or (i) of this section, which
offense occurred within the ten-year period immediately preceding
the date of arrest in the current proceeding; and,
(3) Any period of conditional probation imposed pursuant to
section two-b of this article for violation of subsection (d) of
this article, which violation occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) (o) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final, or
the person has previously had a period of conditional probation
imposed pursuant to section two-b of this article.
(o) (p) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) (b), (c), (d), (e), (f)
or (g) of this section, or any person permitted to drive as
described under subsection (g) or (h) (h) or (i) of this section,
is or has been legally entitled to use alcohol, a controlled
substance or a drug does not constitute a defense against any
charge of violating subsection (a), (b), (c), (d), (e), (f), (g) or
(h) (b), (c), (d), (e), (f), (g), (h) or (i) of this section.
(p) (q) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(q) (r) The sentences provided in this section upon conviction
for a violation of this article are mandatory and are not subject
to suspension or probation: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section: Provided, further, however,
That the court may impose a term of conditional probation pursuant
to section two-b of this article to persons adjudicated thereunder. An order for home detention by the court pursuant to the provisions
of article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section
for a first or subsequent offense: Provided however, further,
That for any period of home incarceration ordered for a person
convicted of second offense under this section, electronic
monitoring shall be required for no fewer than five days of the
total period of home confinement ordered and the offender may not
leave home for those five days notwithstanding the provisions of
section five, article eleven-b, chapter sixty-two of this code: And
provided further, That for any period of home incarceration ordered
for a person convicted of a third or subsequent violation of this
section, electronic monitoring shall be included for no fewer than
ten days of the total period of home confinement ordered and the
offender may not leave home for those ten days notwithstanding
section five, article eleven-b, chapter sixty-two of this code.
NOTE: The purpose of this bill is to increase the criminal
penalties for the offenses of driving under the influence of
alcohol, controlled substances or drugs. The bill also provides
that the changes may be cited as "Andrea's Law".
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.