HB 2513 H JUD AM 3-27 #1
The Committee on the Judiciary moves to amend the bill on page
one, following the enacting clause, by striking out the remainder
of the bill and inserting lieu thereof, the following language:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto two new sections designated §17C-1-67 and
§17C-1-68; that §17C-5-4, §17C-5-6, §17C-5-7, §17C-5-8 and §17C-5-9
of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §17C-5-12, all
to read as follows:
"ARTICLE 1. WORDS AND PHRASES DEFINED.
§17C-1-67. Drug.
__________"Drug" has the same meaning as set forth in section one
hundred one, article one, chapter sixty-A of this code, the Uniform
Controlled Substances Act, that when taken into the human body can
impair the ability of a person to operate a vehicle safely and in
compliance with traffic regulations and the laws of the road.
§17C-1-68. Controlled substance.
__________"Controlled substance" means any substance classified under
the provisions of chapter sixty-a of this code, the Uniform
Controlled Substances Act, and includes all substances listed on
Schedules I through V, inclusive, of article two of said chapter,
as revised.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied consent to test; administration at direction of
law-enforcement officer; designation of type of
test; definition of law-enforcement officer.
(a) Any person who drives a motor vehicle in this state is
considered to have given his or her consent by the operation of the
motor vehicle to a preliminary breath analysis and a secondary
chemical test of either his or her blood or breath, or urine for
the purposes of determining the alcoholic content of to determine
the alcohol concentration in his or her blood, or the presence in
the person's body of a controlled substance, drug, or any
combination thereof.
(b) 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 has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which
has the same elements as an offense described in section two of
this article.
(c) A secondary test of blood or breath, or urine is
incidental to a lawful arrest and is to be administered at the
direction of the arresting law-enforcement officer having
reasonable grounds to believe the person has committed an offense
prohibited by section two of this article or by an ordinance of a
municipality of this state which has the same elements as an
offense described in section two of this article.
(d) The law-enforcement agency that employs the arresting
law-enforcement officer shall designate which type of the secondary
test is tests to be administered: Provided, That if the test
designated is a blood test and the person arrested refuses to
submit to the blood test, then the law-enforcement officer making
the arrest shall designate either a breath or urine test to be administered. Notwithstanding the provisions of section seven of
this article, the 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.
(e) 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 pursuant to subsection (d) of this
section will result in the revocation of his or her license to
operate a motor vehicle in this state for a period of at least one
year forty-five days and up to life.
(f) Any law-enforcement officer who has been properly trained
in the administration of any secondary chemical test authorized by
this article, including, but not limited to, certification by the
Bureau for Public 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:
Provided, That the law-enforcement officer may conduct the test at
the nearest available properly functioning secondary chemical
testing device located outside the county in which the arrest was
made, if: (i) There is no properly functioning secondary chemical
testing device located within the county the arrest was made; or
(ii) there is no magistrate available within the county the arrest
was made for the arraignment of the person arrested. A
law-enforcement officer who is directing that a secondary chemical
test be conducted has the authority to transport the person
arrested to where the secondary chemical testing device is located.
(g) If the arresting officer lacks proper training in the administration of a secondary chemical test, 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 the secondary test. The results of
a test conducted pursuant to this subsection 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.
(h) Only the person actually administering or conducting a
test conducted pursuant to this article is competent to testify as
to the results and the veracity of the test.
(i) (1) For the purpose of this article, the term
"law-enforcement officer" or "police officer" means: (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 natural resources police 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.
(2) In addition to standards promulgated by the Governor's
Committee on Crime, Delinquency and Correction, pursuant to section
three, article twenty-nine, chapter thirty of this code, governing
the qualification of law-enforcement officers and the entry-level
law-enforcement training curricula, the Governor's Committee on Crime, Delinquency and Correction shall require the satisfactory
completion of a minimum of not less than six hours of training in
the recognition of impairment in drivers who are under the
influence of controlled substances or drugs other than alcohol.
__________(3) In addition to standards promulgated by the Governor's
Committee on Crime, Delinquency and Correction, pursuant to section
three, article twenty-nine, chapter thirty of this code,
establishing standards governing in-service law-enforcement officer
training curricula and in-service supervisory level training
curricula, the Governor's Committee on Crime, Delinquency and
Correction shall require the satisfactory completion of a minimum
of not less than six hours of training in the recognition of
impairment in drivers who are under the influence of controlled
substances or drugs other than alcohol.
__________(4) That after December 31, 2014, a law-enforcement officer
who has not satisfactorily completed the minimum number of hours of
training in the recognition of impairment in drivers who are under
the influence of controlled substances or drugs other than alcohol,
required by subdivisions (2) or (3), may no longer require any
person to submit to secondary chemical test of his or her blood for
the purposes of determining the presence in the person's body of a
controlled substance, drug, or any combination thereof.
(j) A law-enforcement officer who has reasonable cause to
believe that person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to
the operation of a motorboat, jet ski or other motorized vessel,
shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and the incidental to a lawful arrest, a secondary chemical test of the
accused person's blood or breath, or urine for the purposes of
determining the alcoholic content of to determine the alcohol
concentration in his or her blood, or the presence in the person's
body of a controlled substance, drug, or any combination thereof.
§17C-5-6. How blood test administered; additional test at option
of person tested; use of test results; certain
immunity from liability incident to administering
test.
Only a doctor of medicine or osteopathy, or registered nurse,
or trained medical technician at the place of his or her employment,
acting at the request and direction of the law-enforcement officer,
may withdraw blood for the purpose of determining the alcoholic
content to determine the alcohol concentration in the blood, or the
presence in the blood of a controlled substance, drug, or any
combination thereof. These limitations shall not apply to the taking
of a breath test or a urine specimen. In withdrawing blood for the
purpose of determining the alcoholic content to determine the
alcohol concentration in the blood, or the presence in the blood of
a controlled substance, drug, or any combination thereof, only a
previously unused and sterile needle and sterile vessel may be
utilized and the withdrawal shall otherwise be in strict accord with
accepted medical practices. A nonalcoholic antiseptic shall be used
for cleansing the skin prior to venapuncture. The person tested
may, at his or her own expense, have a doctor of medicine or
osteopathy, or registered nurse, or trained medical technician at
the place of his or her employment, of his or her own choosing,
administer a chemical test in addition to the test administered at the direction of the law-enforcement officer. Upon the request of
the person who is tested, full information concerning the test taken
at the direction of the law-enforcement officer shall be made
available to him or her. No person who administers any such test
upon the request of a law-enforcement officer as herein defined, no
hospital in or with which such person is employed or is otherwise
associated or in which such test is administered, and no other
person, firm or corporation by whom or with which such person is
employed or is in any way associated, shall be in anywise any way
criminally liable for the administration of such test, or civilly
liable in damages to the person tested unless for gross negligence
or willful or wanton injury.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given: Provided, That prior to the refusal, the
person is given an oral warning and a written statement advising him
or her that his or her refusal to submit to the secondary test
finally designated will result in the revocation of his or her
license to operate a motor vehicle in this state for a period of at
least forty-five days and up to life; and that after fifteen minutes
following the warnings the refusal is considered final. The
arresting officer after that period of time expires has no further
duty to provide the person with an opportunity to take the secondary
test. The officer shall, within forty-eight hours of the refusal,
sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He or she had reasonable grounds
to believe the person had been driving a motor vehicle in this state
while under the influence of alcohol, controlled substances or
drugs; (2) the person was lawfully placed under arrest for an
offense relating to driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (3)
the person refused to submit to the secondary chemical test finally
designated in the manner provided in section four of this article;
and (4) the person was given a written statement advising him or her
that his or her license to operate a motor vehicle in this state
would be revoked for a period of at least forty-five days and up to
life if he or she refused to submit to the secondary test finally
designated in the manner provided in section four of this article.
The signing of the statement required to be signed by this section
constitutes an oath or affirmation by the person signing the
statement that the statements contained in the statement are true
and that any copy filed is a true copy. The statement shall contain
upon its face a warning to the officer signing that to willfully
sign a statement containing false information concerning any matter
or thing, material or not material, is false swearing and is a
misdemeanor. Upon receiving the statement the commissioner shall
make and enter an order revoking the person's license to operate a
motor vehicle in this state for the period prescribed by this
section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking the person's license to operate a motor vehicle in this
state for a period of one year or forty-five days, with an additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter: Provided, That a person
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program.
The application for participation in the Motor Vehicle Alcohol Test
and Lock Program shall be considered to be a waiver of the hearing
provided in section two of said article. If the person's license
has previously been revoked under the provisions of this section,
the commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking the
person's license to operate a motor vehicle in this state for a
period of ten years: Provided, however, That the license may be
reissued in five years in accordance with the provisions of section
three, article five-a of this chapter. If the person's license has
previously been revoked more than once under the provisions of this
section, the commissioner shall, for the refusal to submit to the
designated secondary chemical test, make and enter an order revoking
the person's license to operate a motor vehicle in this state for
a period of life. A copy of each order shall be forwarded to the
person by registered or certified mail, return receipt requested,
and shall contain the reasons for the revocation and shall specify
the revocation period imposed pursuant to this section. A
revocation shall not become effective until ten days after receipt
of the copy of the order. Any person who is unconscious or who is
otherwise in a condition rendering him or her incapable of refusal
shall be considered not to have withdrawn his or her consent for a
test of his or her blood or breath or urine as provided in section four of this article and the test may be administered although the
person is not informed that his or her failure to submit to the test
will result in the revocation of his or her license to operate a
motor vehicle in this state for the period provided for in this
section. A revocation under this section shall run concurrently
with the period of any suspension or revocation imposed in
accordance with other provisions of this code and growing out of the
same incident which gave rise to the arrest for driving a motor
vehicle while under the influence of alcohol, controlled substances
or drugs and the subsequent refusal to undergo the test finally
designated in accordance with the provisions of section four of this
article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be regarded
as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another 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 section two of this article for
conduct which occurred on or after June 10, 1983; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter for conduct which occurred on or
after June 10, 1983.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be heard,
in accordance with the provisions of section two, article five-a of
this chapter.
_____(d) The refusal to submit to a blood test is not admissible in
a trial for the offense of driving a motor vehicle in this state
while under the influence of a controlled substance or drug.
§17C-5-8. Interpretation and use of chemical test.
(a) 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 or
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 the time period provided in subsection (g).
(b) The evidence of the amount of alcohol in the person's blood
at the time of the arrest or the acts alleged gives rise to the
following presumptions or has the following effect:
(1) Evidence that there was, at that time, five hundredths of
one percent or less, by weight, of alcohol in his or her blood, is
prima facie evidence that the person was not under the influence of
alcohol;
(2) Evidence that there was, at that time, more than five
hundredths of one percent and less than eight hundredths of one
percent, by weight, of alcohol in the person's blood is relevant
evidence, but it is not to be given prima facie effect in indicating
whether the person was under the influence of alcohol;
(3) Evidence that there was, at that time, eight 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.
(b) (c) 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; or
(4) The number of grams of alcohol per eighty-six milliliters
of serum.
_____(d) A chemical analysis of blood for the purpose of determining
the controlled substance or drug content of a person's blood, must
include, but is not limited to, the following drugs or classes of
drugs:
_____(1) Marijuana metabolites;
_____(2) Cocaine metabolites;
_____(3) Amphetamines;
_____(4) Opiate metabolites;
_____(5) Phencyclidine (PCP);
_____(6) Benzodiazepines;
_____(7) Propoxyphene;
_____(8) Methadone;
_____(9) Barbiturates, and
_____(10) Synthetic narcotics.
_____(c) (e) (1) A chemical analysis of a person's blood or breath or urine, in order to give rise to the presumptions or to have the
effect provided for in subsection (a) of this section, must be
performed in accordance with methods and standards approved by the
state division Bureau of Public Health.
_____(A) The Bureau of Public Health shall prescribe, by legislative
rules pursuant to article three-a, chapter twenty-nine-a of this
code, methods and standards for the chemical analysis of a person's
blood or breath.
_____(B) Legislative rules proposed by the Bureau of Public Health
must specify the test or tests that are approved for reliability of
result and ease of administration using scientific methods and
instrumentation generally accepted in the forensic community, and
must provide an approved method of administration which must be
followed in all such tests given under this section.
_____(C) The Bureau shall review prescribed standards and methods
at least every two years to ensure that the methods and standards
are approved for reliability of result and ease of administration
using scientific methods and instrumentation generally accepted in
the forensic community.
_____(2) A chemical analysis of blood or urine to determine the
alcohol content or the controlled substance or drug content of blood
shall be conducted by a qualified laboratory or by the State Police
scientific laboratory of the criminal identification bureau of the
West Virginia State Police Forensic Laboratory.
(d) (f) The provisions of this article do 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.
(g) For the purposes of the admissibility of a chemical test
under subsection (a):
_____(1) A sample or specimen taken to determine the alcohol
concentration of a person's blood, must be taken within two hours
from the time of the person's arrest; or
_____(2) For a sample or specimen to determine the controlled
substance or drug content of a person's blood, must be taken within
four hours of the person's arrest.
_____(h) The results of any test administered pursuant to this
section for the purpose of detecting the presence of any controlled
substance shall not be admissible as evidence in a criminal
prosecution for the possession of a controlled substance.
§17C-5-9. Right to demand test.
Any person lawfully arrested for driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs shall have the right to demand that a sample or
specimen of his or her blood or breath or urine to determine the
alcohol concentration of his or her blood be taken within two hours
from and after the time of arrest and a sample or specimen of his
or her blood or breath to determine the controlled substance or drug
content of his or her blood, be taken within four hours from and
after the time of arrest, and that a chemical test thereof be made.
The analysis disclosed by such chemical test shall be made available
to such arrested person forthwith upon demand.
§17C-5-12. Report to the Legislature.
_______________On or before December 31, 2013, the West Virginia State Police
Forensic Laboratory shall submit to the Joint Standing Committee on the Judiciary, a report that includes the following:
_______________(1) Recommendations for the minimum levels of those drugs or
controlled substances contained in subsection (d), section eight of
this article, that must be present in a person's blood in order for
the test to be admitted as prima facie evidence that the person was
under the influence of a controlled substance or drug in a
prosecution for the offense of driving a motor vehicle in this
state; and
_______________(2) Recommendations for the minimum levels of those drugs or
controlled substances contained in subsection (d), section eight of
this article, that laboratories approved to test blood for drug or
controlled substance content can reliably identify and measure for
the concentrations of drugs, controlled substances and their
metabolites, in blood.