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Introduced Version Senate Bill 438 History

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


Senate Bill No. 438

(By Senator Mitchell)

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[Introduced March 8, 2001; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact section eight, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing immunity from civil damages for a police officer who withdraws a charge of driving under the influence when the criminal defendant's secondary breathalyser result is five hundredths of one percent or less, by weight, of alcohol in his or her blood.

Be it enacted by the Legislature of West Virginia:
That section eight, article five, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-8. Interpretation and use of chemical test; immunity from civil liability for police officer who withdraws charge.

Upon trial for the offense of driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs 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 drugs, evidence of the amount of alcohol in the person's blood at the time of the arrest or of the acts alleged, as shown by a chemical 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, and shall give rise to the following presumptions or have the following effect:
(a) Evidence that there was, at that time, five hundredths of one percent or less, by weight, of alcohol in his or her blood, shall be prima facie evidence that the person was not under the influence of alcohol: Provided, That any police officer who withdraws a criminal charge for driving under the influence pending against a person whose secondary breathalyer result evidenced five hundredths of one percent or less, by weight, of alcohol in his or her blood, shall be immune from liability in any civil action which alleges any wrongful act or ommission resulting from the withdrawal of the criminal charge
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(b) Evidence that there was, at that time, more than five hundredths of one percent and less than ten hundredths of one percent, by weight, of alcohol in the person's blood shall be relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of alcohol;
(c) Evidence that there was, at that time, ten hundredths of one percent or more, by weight, of alcohol in his or her blood, shall be admitted as prima facie evidence that the person was under the influence of alcohol.
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; or (3) the number of grams of alcohol per sixty-seven milliliters of urine.
A chemical analysis of a person's blood, breath or urine, in order to give rise to the presumptions or to have the effect provided for in subdivisions (a), (b) and (c) of this section, must be performed in accordance with methods and standards approved by the state division of health. A chemical analysis of blood or urine to determine the alcoholic content of blood shall be conducted by a qualified laboratory or by the state police scientific laboratory of the criminal identification bureau of the division of public safety.
The provisions of this article shall not limit the introduction in any administrative or judicial proceeding of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, controlled substances or drugs.

NOTE: The purpose of this bill is to provide immunity from liability for police officers who withdraw charges for DUI against persons whose breathalyser results were .05 or less.

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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