H. B. 2348
(By Delegates Caputo, Longstreth, Fragale,
Iaquinta, Miley, Manchin and Cann)
[Introduced February 13, 2009; referred to the
Committee on Roads and Transportation then the
Judiciary.]
A BILL to amend and reenact §17C-5-2 of the Code of West Virginia,
1931, as amended, relating generally to driving under the
influence; requiring mandatory community service for persons
convicted of driving under the influence of alcohol,
controlled substances or drugs; setting forth a registry of
persons convicted to be maintained by the West Virginia State
Police.
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. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) 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 of any person
within one year next following the act or failure; and
(3) 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, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
years nor more than ten years and shall be fined not less than
$1,000 nor more than $3,000.
(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;
(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 of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than ninety days nor more than one year and shall be
fined not less than $500 nor more than $1,000.
(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; 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 and, upon
conviction thereof, shall be confined in jail for not less than one day nor more than one year, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than $200 nor more than $1,000.
(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, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for up to six months and shall be fined
not less than $100 nor more than $500. 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) 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 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 $200 nor more than $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.
(f) 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 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
nor more than $500. 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) 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 and shall be
fined not less than $100 nor more than $500.
(h) 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 and shall be fined not less than
$100 nor more than $500.
(i) 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 fined not less
than $25 nor more than $100. 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 and shall be fined not less than $100 nor more than $500. 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) of this section may not also be charged with
an offense under this subsection arising out of the same
transaction or occurrence.
(j) 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 days nor more than twelve months, which jail
term is to include actual confinement of not less than forty-eight
hours and shall be fined not less than $200 nor more than $1,000.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) 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) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) 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 nor more than three
years and the court may, in its discretion, impose a fine of not
less than $3,000 nor more than $5,000.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) 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) of
this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) 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.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (g) or (h)
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) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(q) 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. 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, 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 of
chapter sixty-two: 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 of chapter
sixty-two.
(r) Any person found guilty of a misdemeanor pursuant to
subsections (c), (d), (e), (f), (g), (h), (i) and (j) of this
section shall upon conviction thereof:
(1) For a first offense be required to serve fifty hours of
community service within a period of six months from the date of
conviction or release from confinement;
(2) For a second or subsequent offense under this section, be
required to serve seventy-five hours of community service within
six months of the date of conviction or release from confinement;
(3) For a third and each subsequent violation shall be
required to serve one hundred hours of community service within six
months of the date of conviction;
(s) For purposes of this section, eight hours of community
service shall be credited as one day of the sentence imposed.
Persons sentenced under this program shall be required to provide
their own transportation to and from the work site and any and all
other items necessary to the completion community service.
"Community service" includes services provided at no charge
whatsoever, of:
(1) Providing any type of health, personal finance,
psychological or behavioral, religious, legal, marital, educational
or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically
disadvantaged citizens or in an economically disadvantaged area;
(2) Providing emergency assistance or medical care to
economically disadvantaged citizens or to a specifically designated
group of economically disadvantaged citizens or in an economically
disadvantaged area;
(3) Establishing, maintaining or operating recreational
facilities, or housing facilities for economically disadvantaged
citizens or a specifically designated group of economically
disadvantaged citizens or in an economically disadvantaged area;
(4) Providing economic development assistance to economically
disadvantaged citizens or a specifically designated group of
economically disadvantaged citizens; without regard to whether they
are located in an economically disadvantaged area, or to
individuals, groups or neighborhood or community organizations, in
an economically disadvantaged area; or
(5) Providing community technical assistance and capacity
building to economically disadvantaged citizens or a specifically
designated group of economically disadvantaged citizens, or to
individuals, groups or neighborhood or community organizations in
an economically disadvantaged area.
(t) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may withdraw
any alternative sentence at any time by order entered with or without notice and require that the remainder of the sentence be
served in the county jail, regional jail or a state correctional
facility: Provided, That no alternative sentence directed by the
sentencing judge or magistrate or administered under the
supervision of the sheriff, his or her deputies, a jailer or a
guard, may require the convicted person to perform duties which
would be considered detrimental to the convicted person's health as
attested by a physician.
(u) (1) The Criminal Identification Division of the State
Police shall maintain a registry containing the names of persons
convicted under the provisions of this section. The registry shall
be maintained by the Criminal Identification Division and made
available for public inquiry on the Internet. The registry shall
consist of:
(i) The individual's full name,
(ii) Sufficient information to identify the individual
including the date of birth and fingerprints if available;
(iii) The offenses for which the individual was convicted the
precipitated their inclusion on the registry;
(iv) A photograph;
(v) Any statement by the individual disputing the conviction,
if he or she chooses to make and file one; and
(vi) Any other identifying information considered necessary to
properly identify the person: Provided, That in no event may the information include a person's social security number.
(2) The circuit clerks of each county shall forward certified
copies of abstracts of judgement containing any criminal
convictions had under the provisions of this section to the
Criminal Identification Division of the State Police within
forty-five days of entry of the order of conviction.
(3) Upon conviction in the criminal courts of this state of
any offense in this section, the individual so convicted shall be
placed on this registry.
NOTE: The purpose of this bill is to require mandatory
community service upon conviction of a misdemeanor offense of
driving under the influence and creation of a central registry of
persons convicted of driving under the influence.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.