Senate Bill No. 567
(By Senators Foster and Kessler)
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[Introduced February 13, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §17C-5-2b, relating
to revamping the drunk driving provisions related to various
crimes and penalties; prescribing criminal offenses; providing
for aggravating factors related to driving under the influence
which increase criminal penalties; requiring certain offenders
to perform community service and submit to screening programs;
providing for graduated penalties for repeat offenders;
requiring mandatory participation in treatment programs for
certain offenders; requiring certain repeat offenders to
install ignition interlock devices; requiring the Division of
Motor Vehicles to propose rules for legislative approval; and
providing that offenders under certain circumstances may apply
to the circuit court for the removal of interlock devices and
full restoration of driving privileges.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding a new section, designated §17C-5-2b, to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2b. Driving under influence of alcohol, controlled
substances or drugs; aggravated driving while under
the influence; penalties.
(a) It is unlawful for a person who is under the influence of
alcohol to drive a vehicle in this state.
(b) It is unlawful for a person who is under the influence of
any drug to a degree that renders him or her incapable of safely
driving a vehicle to drive a vehicle in this state.
(c) It is unlawful for:
(1) A person who has an alcohol concentration of eight one
hundredths or more in his blood or breath to drive a vehicle in
this state; or
(2) A person who has an alcohol concentration of four
one-hundredths or more in his of her blood or breath to drive a
commercial motor vehicle in this state.
(d) Aggravated driving while under the influence of alcohol or
drugs consists of a person who:
(1) Has an alcohol concentration of sixteen one hundredths or
more in his or her blood or breath while driving a vehicle in this
state;
(2) Has caused bodily injury to a human being as a result of
the unlawful operation of a motor vehicle while driving under the
influence of alcohol or drugs; or
(3) Refused to submit to chemical testing, as required by
section four of this article, and in the judgment of the court,
based upon evidence of intoxication presented to the court, was
under the influence of alcohol or drugs.
(e) Upon conviction for a first offense of this section,
notwithstanding the provisions of section two of this article, a
person shall be confined not more than ninety days or fined not
more than five hundred dollars, or both:
Provided, That if the
sentence is suspended in whole or part or deferred, the period of
probation may extend beyond ninety days, but shall not exceed one
year. Upon conviction for a first offense under this section, a
person shall be sentenced to not less than twenty-four hours nor
more than forty-eight hours of community service. The person shall
be ordered by the court to participate in and complete screening
program prescribed in subsection (k) of this section and to attend
a the Safety and Treatment Program prescribed in section three,
article five-a of this chapter. In addition to the penalties
provided in this subsection, when a person commits aggravated
driving while under the influence of alcohol or drugs, the person
shall be sentenced to not less than forty-eight hours in jail. If
a person fails to complete, within a time specified by the court, any community service, screening program, treatment program or any
other condition of probation, the person shall be sentenced to an
additional forty-eight hours in jail. Any jail sentence imposed
pursuant to this subsection for failure to complete, within a
specified time period, any community service, screening program,
treatment program or other condition of probation ordered by the
court or for aggravated driving while under the influence of
alcohol or drugs may not be suspended, deferred or taken under
advisement.
(f) A second or third conviction under the provisions of this
section shall be punished, notwithstanding the provisions of
section two of this article, by confinement in jail for not more
than one year, or by a fine of not more than one thousand dollars,
or both:
Provided, That if the sentence is suspended in whole or in
part, the period of probation may extend beyond one year but may
not exceed five years. Notwithstanding any provision of law to the
contrary:
(1) Upon a second conviction under the provisions of this
section, a person shall be confined in jail for not less than
ninety-six hours, ordered to perform forty-eight hours of community
service and fined five hundred dollars. In addition to these
penalties, when a person commits aggravated driving while under the
influence of alcohol or drugs, the person shall be confined in jail
for not less than ninety-six hours. If a person fails to complete, within a time specified by the court, any community service,
screening program or treatment program ordered by the court, the
person shall be sentenced to not less than an additional seven days
in jail. The penalties prescribed by this subsection may not be
suspended, deferred or taken under advisement; and
(2) Upon a third conviction, an offender shall be confined in
jail for not less than thirty days, ordered to perform ninety-six
hours of community service, and ordered to pay a fine of seven
hundred fifty dollars. In addition to these penalties, when a
person commits aggravated driving while under the influence of
alcohol or drugs, he or she shall be sentenced to not less than
sixty days in jail. If a person fails to complete, within a time
specified by the court, any community service, screening program or
treatment program ordered by the court, the person shall be
sentenced to not less than an additional sixty days in jail. The
penalties prescribed by this subsection may not be suspended,
deferred or taken under advisement.
(g) Upon a fourth conviction under the provisions of this
section, a person is guilty of a felony and notwithstanding the
provisions of section two of this article, shall be confined in a
state correctional facility for not less than one year.
(h) Upon a fifth conviction under the provisions of this
section, a person is guilty of a felony and notwithstanding the
provisions of section two of this article, shall be confined in a state correctional facility for not less than two years.
(i) Upon a sixth conviction under the provisions of this
section, a person is guilty of a felony and notwithstanding the
provisions of section two of this article, shall be confined in a
state correctional facility for not less than three years.
(j) Upon a seventh conviction under the provisions of this
section, a person is guilty of a felony and notwithstanding the
provisions of section two of this article, shall be confined in a
state correctional facility for not less than four years.
(k) Upon a second or third conviction under the provisions of
this section, a person shall be ordered by the court to participate
in and complete:
(1) Not less than a twenty-eight day inpatient, residential or
in-custody treatment program approved by the court;
(2) Not less than a ninety-day outpatient treatment program
approved by the court;
(3) Any other substance abuse treatment program approved by
the court.
(l) Upon a felony conviction under the provisions of this
section, the Division of Corrections shall provide substance abuse
counseling and treatment to the person in its custody. While a
person is on parole, he or she shall be required to obtain
substance abuse counseling and treatment.
(m) Notwithstanding any provision of law to the contrary, a person convicted of three or more offenses under the provisions of
this section shall be required to obtain and maintain an ignition
interlock device as provided under the provisions of section three-
a, article five-a of this chapter. The Division of Motor Vehicles
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
designed to provide for a special license to be issued to persons
subject to the provisions of this subsection and to otherwise fully
implement the provisions of this section.
(n) Five years from the date of conviction and every five
years thereafter, a person subject to the provisions of subsection
(n) of this section may apply to the circuit court for removal of
the ignition interlock device as otherwise required. The circuit
court may, for good cause shown, order the removal of the ignition
interlock device and, additionally, order the full restoration and
reinstatement of the person's driver's license.
NOTE: The purpose of this bill is to
revamp the drunk driving
provisions related to various crimes and penalties under the
current code. Toward this end the bill provides the following:
(1) Prescribing criminal offenses; (2) providing for aggravating
factors related to driving under the influence which increase
criminal penalties; (3) requiring certain offenders to perform
community service and submit to screening programs; (4) providing
for graduated penalties for repeat offenders; (5) requiring
mandatory participation in treatment programs for certain
offenders; (6) requiring certain repeat offenders to install
ignition interlock devices; and, (7) providing that offenders under
certain circumstances may apply to the circuit court for the
removal of interlock devices and full restoration of driving
privileges.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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