The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.Prayer was offered and the House was led in recitation of the Pledge of Allegiance.The Clerk proceeded to read the Journal of Monday, February 17, 2003, being the first order
of business, when the further reading thereof was dispensed with and the same approved.At the request of Delegate Staton, and by unanimous consent, the applicable provisions of
House Rule 136, relating to privileges of the floor, were suspended for the day to extend privileges
of the floor to invited guests for presentations by the House.Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:Your Committee on the Judiciary has had under consideration:H. B.'s 2562, 2563, 2564, 2565, 2566, 2567, 2568, 2569, 2600, 2601, 2602, 2603, 2604,
2605, 2606 and 2653, Authorizing the department of environmental protection to promulgate
legislative rules,And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:Com. Sub. for H. B. 2603 - "A Bill to amend and reenact article three, chapter sixty-four
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating
generally to the promulgation of administrative rules by the various executive or administrative
agencies and the procedures relating thereto; legislative mandate or authorization for the
promulgation of certain legislative rules by various executive or administrative agencies of the state;
authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules
were filed in the state register; authorizing certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended by the legislative rule-making
review committee; authorizing certain of the agencies to promulgate certain legislative rules as
amended by the legislature; authorizing certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended by the legislative rule-making
review committee and as amended by the legislature; authorizing the department of environmental
protection to promulgate a legislative rule relating to the NOx budget trading program as a means
of control and reduction of nitrogen oxides from non-electric generating units; authorizing the
department of environmental protection to promulgate a legislative rule relating to permits for the
construction, modification, relocation and operation of stationary sources of air pollutants,
notification requirements, administrative updates, temporary permits, general permits and
procedures for evaluation; authorizing the department of environmental protection to promulgate
a legislative rule relating to standards of performance for new stationary sources pursuant to 40 CFR
part 60; authorizing the department of environmental protection to promulgate a legislative rule
relating to the prevention and control of air pollution from hazardous waste treatment, storage or
disposal facilities; authorizing the department of environmental protection to promulgate a legislative rule relating to the NOx budget trading program as a means of control and reduction of
nitrogen oxides from electric generating units; authorizing the department of environmental
protection to promulgate a legislative rule relating to requirements for operating permits; authorizing
the department of environmental protection to promulgate a legislative rule relating to emission
standards for hazardous air pollutants for source categories pursuant to 40 CFR Part 63; authorizing
the department of environmental protection to promulgate a legislative rule relating to acid rain
provisions and permits; authorizing the department of environmental protection to promulgate a
legislative rule relating to surface mining and reclamation; authorizing the department of
environmental protection to promulgate a legislative rule relating to coal related dam safety;
authorizing the department of environmental protection to promulgate a legislative rule relating to
standards for the beneficial use of materials similar to sewage sludge; authorizing the department
of environmental protection to promulgate a legislative rule relating to hazardous waste
management; authorizing the department of environmental protection to promulgate a legislative
rule relating to the hazardous waste management fund certification legislative rule concerning fee
assessment; authorizing the department of environmental protection to promulgate a legislative rule
relating to water pollution control permit fee schedules; authorizing the environmental quality board
to promulgate a legislative rule relating to requirements governing water quality standards; and
authorizing the oil and gas conservation commission to promulgate a legislative rule relating to rules
of the commission,"With the recommendation that the committee substitute do pass. Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 2603) will be placed on the
Consent Calendar.Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:Your Committee on the Judiciary has had under consideration:H. B. 2823, Modifying delinquent real and personal property collection and purchase
requirements,And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (H. B. 2823) will be placed on the Consent
Calendar.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofCom. Sub. for S. B. 56 - "A Bill to amend article sixteen, chapter thirty-three of the code
of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new
section, designated section three-q; to amend article twenty-four of said chapter by adding thereto
a new section, designated section seven-h; to amend article twenty-five of said chapter by adding
thereto a new section, designated section eight-f; and to amend article twenty-five-a of said chapter
by adding thereto a new section, designated section eight-g, all relating generally to group accident
and sickness insurance, hospital service corporations, medical service corporations, dental service
corporations, health service corporations, health care corporations and health maintenance
organizations; and prohibiting certain contracts of insurance from requiring subscribers to obtain prescription drugs from a mail-order pharmacy in order to obtain benefits for drugs"; which was
referred to the Committee on Banking and Insurance then Finance.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofS. B. 400 - "A Bill to amend and reenact sections nine and nineteen, article two, chapter
thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to
amend and reenact section nine, article seven of said chapter; and to amend and reenact section one,
article thirty-nine of said chapter, all relating to authorizing limited disclosure of confidential
information received by the insurance commissioner; making amendments regarding disclosure of
confidential information by the insurance commissioner to federal banking agencies required by the
federal Gramm-Leach-Bliley Act; and making technical corrections"; which was referred to the
Committee on Banking and Insurance then the Judiciary.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofS. B. 484 - "A Bill to amend and reenact section two, article twenty, chapter thirty-three of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the types
of entities that are governed by said article; and providing for rate regulation of title insurers"; which
was referred to the Committee on Banking and Insurance then Finance.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofS. B. 485 - "A Bill to amend article forty-three, chapter thirty-three of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section,
designated section four-a, relating to the authority of the commissioner to enter into agreements and
compromises"; which was referred to the Committee on Banking and Insurance then the Judiciary.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofS. B. 486 - "A Bill to amend and reenact section nine, article thirty-three, chapter thirty-three
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the
requirement that a certified public accountant must notify the insurer's board of directors or its audit
committee if the insurer has materially misstated the insurer's financial condition"; which was
referred to the Committee on Banking and Insurance then the Judiciary.A message from the Senate, byThe Clerk of the Senate, announced the passage by the Senate and requested the concurrence
of the House of Delegates in the passage ofS. B. 488 - "A Bill to amend and reenact sections ten and twelve, article twenty-two, chapter
thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all
relating to the contingent liability of members of farmers' mutual fire insurance companies; and
limiting the amount of risk such companies may undertake"; which was referred to the Committee
on Banking and Insurance then the Judiciary.On motion for leave, a Joint Resolution was introduced, read by its title and referred as
follows:By Delegates Overington, Armstead, Walters, Frich, Ellem, Schoen and Caruth:
H. J. R. 16 - "Proposing an amendment to the Constitution of the State of West Virginia,
amending section one-b, article ten thereof, relating to homestead exemption increase; numbering
and designating such proposed amendment; and providing a summarized statement of the purpose
of such proposed amendment"; to the Committee on Constitutional Revision then the Judiciary.Mr. Speaker, Mr. Kiss, and Delegates Mahan, Susman and Sumner presented a petition,
signed by four hundred and fourteen residents of the 27th District, in support of H. B. 2411,
allowing persons to defend their property with deadly force without being exposed to liability; which
was referred to the Committee on the Judiciary.Delegate Boggs presented a petition signed by nine residents of the 34th District requesting
an upgrade of Stumbo Road near Frametown; which was referred to the Committee on Roads and
Transportation.On motions for leave, bills were introduced, read by their titles, and severally referred as
follows:By Mr. Speaker, Mr. Kiss, and Delegate Trump[By Request of the Executive]:H. B. 3044 - "A Bill to repeal article thirteen-b, chapter eight of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to amend chapter seven of said code by adding
thereto a new article, designated article twenty-two; to amend and reenact section eleven-a, article
ten, chapter eleven of said code; and to amend and reenact section nine-f, article fifteen of said
chapter eleven, all relating to sales tax increment financing"; to the Committee on Finance.By Mr. Speaker, Mr. Kiss:H. B. 3045 - "A Bill to amend and reenact section three, article nine-b, chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend said article
nine-b, by adding thereto a new section, designated section four, all relating generally to
implementation of master tobacco settlement agreement; providing allocable share cap on payments
by non-participating manufacturers and as to such providing special severability rule and date for
implementation"; to the Committee on Finance.By Mr. Speaker, Mr. Kiss:H. B. 3046 - "A Bill to amend chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, by adding thereto a new article, designate nine-d, all relating
generally to facilitating and enforcing compliance with tobacco master settlement agreement and
with laws implementing that agreement; imposing civil and criminal penalties for failure to comply;
and specifying internal effective dates"; to the Committee on Finance.By Mr. Speaker, Mr. Kiss:H. B. 3047 - "A Bill to amend and reenact section eight, article six, chapter thirty-three of
the code of West Virginia, as amended; and to amend and reenact sections one and three, article
sixteen-b of said chapter, all relating to insurance policies generally; providing that mass marketed
life and health insurance policies offered to members of associations are effective upon filing but
may be reviewed by the commissioner for reasonableness; clarifying that premium rate charges
embodied in an insurance policy, certificate or other evidence of insurance issued, endorsed or
delivered in this state shall be filed with the commissioner; and clarifying that group accident and
health insurance plans providing coverage to fifty-one or more employees are excepted from the
provisions of accident and sickness rates"; to the Committee on Banking and Insurance then Finance.By Delegates Caruth, Frederick, Armstead, Frich, Long and Louisos:
H. B. 3048 - "A Bill to amend and reenact section eleven, article four, chapter thirty-three
of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to
complaints alleging violations under the insurance law addressed solely to the commissioner; and
providing that administrative remedy is exclusive and in lieu of civil damages"; to the Committee
on Banking and Insurance then the Judiciary.By Delegates Ennis, Shaver, Stemple, R. Thompson and Varner:H. B. 3049 - "A Bill to amend and reenact section four, article seven, chapter sixty-one of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to license to
carry deadly weapon; training course exception for certain veterans"; to the Committee on Veterans
Affairs and Homeland Security then the Judiciary.By Delegates Manuel, Tabb and Doyle:H. B. 3050 - "A Bill to authorize the county commission of Jefferson County to convey a
parcel of county-owned land to the Jefferson County Fairgrounds; reserving certain reversionary
rights"; to the Committee on Political Subdivisions.By Delegates Staton and Beane:H. B. 3051 - "A Bill to amend and reenact sections seven and ten, article two, chapter six-b
of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and
reenact section four, article three of said chapter, all relating to altering the certain reportable
threshold dollar amounts on legislative member financial disclosure statements and lobbyist
reports"; to the Committee on the Judiciary.By Delegates Staton and Mahan:H. B. 3052 - "A Bill to amend and reenact section seventeen, article one; section one, article
two; sections two, eight, ten, eleven, twelve and thirteen, article two-a; section fourteen, article
three; sections one and eleven, article four; section twelve, article six; and sections eight and nine,
article eight, all of chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-
one, as amended, relating to including family courts into certain jurisdictional references of the clerk
of the circuit court and including Clerk of the Circuit and Family Court as the official title of the
formerly titled Clerk of the Circuit Court"; to the Committee on the Judiciary. The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for H. B. 2433, Relating to vocational-technical facility and equipment
improvements through the school building authority,Com. Sub. for H. B. 2443, Relating to the assessment of banking institutions,Com. Sub. for H. B. 2678, Changing ballot publishing dates before primary and general
elections,H. B. 2870, Specifying the jurisdiction of the PSC over, and the application of public utility
laws to, certain described electric generating facilities,And,H. B. 2953, Establishing a mechanism to eliminate any actuarially projected unfunded
liability in the Prepaid Tuition Trust Fund.On the passage of the bills, the yeas and nays were taken (Roll No. 53), and there were--yeas
87, nays 2, absent and not voting 11, with the nays and absent and not voting being as follows:Nays: Frich and Walters.Absent And Not Voting: Anderson, Ashley, Border, Butcher, Campbell, Coleman,
Faircloth, Houston, Michael, Renner and Schadler.So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bills (Com. Sub. for H. B. 2433, Com. Sub. for H. B. 2443, Com. Sub. for H.
B. 2678, H. B. 2870 and H. B. 2953) passed.An amendment to the title of H. B. 2870, recommended by the Committee on the Judiciary,
was reported by the Clerk and adopted, amending the title of the bill to read as follows: H. B. 2870 - "A Bill to amend and reenact section one, article two, chapter twenty-four of
the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend
said article by adding thereto a new section, designated section eleven-c, all relating to specifying
the jurisdiction of the public service commission over, and the application of said chapter twenty-
four to, owners or operators of, and persons, corporations or other entities that intend to construct
or construct and operate, certain described electric generating facilities, the output of which is not
sold directly to retail customers in West Virginia; and requiring persons, corporations and other
entities that intend to construct or construct and operate such electric generating facilities, or that
intend to make or construct a material modification thereof, to obtain from the public service
commission a siting certificate, in lieu of a certificate of public convenience and necessity, for each
such facility or material modification thereof pursuant and subject to certain new provisions and
requirements which, among other things, allow the public service commission, under specified
circumstances, to seek the imposition of civil or criminal penalties, or both such civil and criminal
penalties; and providing that the public service commission may promulgate rules relating to siting
certificates."An amendment to the title of H. B. 2953, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows:H. B. 2953 - "A Bill to amend and reenact section six, article thirty, chapter eighteen of the
code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact
section thirteen, article eight, chapter thirty-six of said code, all relating to the administration of the
prepaid tuition plan of the West Virginia college prepaid tuition and savings program; clarifying
how moneys in the prepaid tuition trust fund are processed when the plan is terminated; establishing
a mechanism to eliminate any actuarially projected unfunded liability in the trust fund over a fixed
period with funds from the unclaimed property trust fund in an amount not to exceed two million
dollars annually; creating the prepaid tuition trust escrow account; providing for the transfer of funds
in the unclaimed property trust fund to the prepaid tuition trust escrow account and to the general
revenue fund; and providing for the investment and use of the money in the prepaid tuition trust
escrow account."Delegate Staton moved that Com. Sub. for H. B. 2433 take effect July 1, 2003.On this question, the yeas and nays were taken (Roll No. 54), and there were--yeas 89, nays
none, absent and not voting 11, with the absent and not voting being as follows:Absent And Not Voting: Anderson, Ashley, Border, Butcher, Campbell, Coleman,
Faircloth, Houston, Michael, Renner and Schadler.So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2433) takes effect July 1, 2003.Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence therein.S. B. 281, Continuing department of environmental protection; on second reading, coming up in regular order, was read a second time and ordered to third reading.The following bills on second reading, coming up in regular order, were each read a second
time and ordered to engrossment and third reading:Com. Sub. for H. B. 2511, Authorizing the issuance of a special motor vehicle license plate
for Nemesis Shrine members,H. B. 2668, Credentialing of health care practitioners,H. B. 2729, Clarifying the members of professional licensing boards may be compensated
only for days which they attend official meetings and not for travel days,And,H. B. 3011, Relating to authority of the state fire commission to promulgate legislative and
emergency rules.The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:H. B. 2441, Increasing the minimum subscribed capital stock and capital surplus for new
bank charter applications,Com. Sub. for H. B. 2477, Permitting residents of nursing homes and similar facilities to
retain the homestead exemption and Class II property designation,H. B. 2514, Authorizing the board of banking and financial institutions to prohibit
individuals removed from one financial institution from participating in the affairs of other financial
institutions,Com. Sub. for H. B. 2529, Relating to the licensure and regulation of psychophysiological
detection of deception examiners,H. B. 2534, Eliminating the property value limit on the application of the tax,Com. Sub. for H. B. 2556, Requiring the insurance commissioner to issue an annual
communication to increase awareness of certain flood insurance issues,Com. Sub. for H. B. 2702, Eliminating the examination assessment fee on risk retention
groups,H. B. 2771, Repealing exemptions from gasoline and special fuels excise tax for bulk sales
to interstate motor carriers,H. B. 2793, Relating to the West Virginia real estate commission and limiting certain
reciprocity provisions,Com. Sub. for H. B. 2799, Relating to the West Virginia state police and the re-employment
of recently retired troopers,Com. Sub. for H. B. 2814, Increasing the misdemeanor penalties for failure to yield the
right-of-way,H. B. 2846, Adding professional surveyors to the list of professionals who may organize
professional limited liability companies,Com. Sub. for H. B. 2865, Upgrading the criminal offense of damaging or destroying real
or personal property owned by a railroad company or public utility,Com. Sub. for H. B. 2881, Striking the provision requiring that post mining water
discharges have to be better to or equal to pre-mining water discharge,H. B. 2882, Limiting requirements for stays for appeals under the surface coal mining and
reclamation act for unjust hardship,H. B. 2920, Increasing certain benefits to dependents of a state trooper killed in the line of
duty,H. B. 2975, Providing a window for persons who were members of PERS and who left state
employment withdrawing their PERS moneys to buy back their time with interest,H. B. 2983, Relating to the teachers' retirement system,H. B. 2984, Increasing the amount of service credit a teacher off work due to a compensable
injury may purchase,And,H. B. 3031, Relating to participation in public school courses and activities by child
receiving home instruction.The Clerk announced that, pursuant to House Rule 70a, Delegate Sobonya had requested H.
B. 3031 be removed from the Consent Calendar and be placed upon the House Calendar.Com. Sub. for H. B. 2203, Relating generally to the requirement of wearing seat belts in
automobiles; on third reading, coming up in regular order, with the right to amend, was reported by
the Clerk.An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk,
on page two, following the enacting clause, by striking out the remainder of the bill and inserting
in lieu thereof the following:That sections two, six-a and eight, article five, chapter seventeen-c of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said
article be further amended by adding thereto a new section, designated section twelve; that sections
one, one-a, and two, article five-a of said chapter be amended and reenacted; and that sections forty-
three and forty-nine, article fifteen of said chapter be amended and reenacted, all to read as follows:§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; enhanced penalties for certain offenses.
(a) Any person who:(1) Drives a vehicle in this state while he or she:(A) Is under the influence of alcohol; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) When so 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 one nor more than ten years and shall be fined not less than one thousand dollars
nor more than three thousand dollars.(b) Any person who:(1) Drives a vehicle in this state while he or she:(A) Is under the influence of alcohol; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) When so 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 the county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.(c) Any person who:(1) Drives a vehicle in this state while he or she:(A) Is under the influence of alcohol; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) When so 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 the county or regional 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 two hundred dollars nor more than one thousand dollars.(d) Any person who:(1) Drives a vehicle in this state while he or she:(A) Is under the influence of alcohol; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county
or regional 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 one hundred
dollars nor more than five hundred dollars.(e) 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 the county or regional 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 one hundred dollars nor more than five hundred dollars.(f) 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; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county
or regional jail for not more than six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.(g) 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 the county or regional
jail for not more than six months and shall be fined not less than one hundred dollars nor more than
five hundred dollars.(h) 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 A person arrested and charged with an offense under the provisions of subsection (a), (b),
(c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.(i) Any person who:(1) Drives a vehicle in this state while he or she:(A) Is under the influence of alcohol; or(B) Is under the influence of any controlled substance; or(C) Is under the influence of any other drug; or(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 (2) The person when so 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 the county or regional 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 two hundred dollars nor more than
one thousand dollars.(j) 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 the county or regional 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 (k) 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 three thousand
dollars nor more than five thousand dollars.(l) For purposes of subsections (j) and (k) 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) or (f) of the prior
enactment of this section for an offense which occurred on or after the first day of September, one
thousand nine hundred eighty-one, and prior to the effective date of this section;(2) Any conviction under the provisions of subsection (a) or (b) of the prior enactment of this
section for an offense which occurred within a period of five years immediately preceding the first
day of September, one thousand nine hundred eighty-one; and(3) 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) or (g) of this section, which offense occurred after
the tenth day of June, one thousand nine hundred eighty-three.(m) 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 periods 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.(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of
this section, or any person permitted to drive as described under subsection (f) or (g) 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) or (g) of this section.(o) For purposes of this section, the term "controlled substance" has the meaning ascribed
to it in chapter sixty-a of this code.(p) The sentences provided herein upon conviction for a violation of this article are
mandatory and may not be 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. An order for home detention by the court pursuant to the provisions
of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any
period of incarceration required by this section. An order for supervision or participation in a
community corrections program created pursuant to article eleven-c, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.(q) The governor's committee on crime and delinquency, in cooperation with the division
of motor vehicles, the division of highways and the West Virginia state police, shall disseminate
information related to changing the blood alcohol threshold for per se DUI offenses defined under
this article from ten hundredths of one percent to eight hundredths of one percent, through any
medium generally engaged or employed to inform the public at large or through any specifically
targeted group, such as restaurants, bars or convenience stores.(a) A preliminary breath analysis may be administered to a child whenever a law-
enforcement official has reasonable cause to believe the child to have been driving a motor vehicle
with any amount of alcohol in his or her blood, for the purpose of determining the child's blood
alcohol content. Such breath analysis must be administered as soon as possible after the law-
enforcement officer arrives at a reasonable belief that the child has been driving a motor vehicle
with any amount of alcohol in his or her blood. Any preliminary breath analysis administered
pursuant to this subsection must be administered with a device and in a manner approved by the
division of health for that purpose. If a preliminary breath analysis is administered, the results shall
be used solely for the purpose of guiding the officer in deciding whether the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, and should therefore be taken into custody to administer a secondary
test in accordance with the provisions of this section.(b) A child may be taken into custody by a law-enforcement official without a warrant or
court order if the official has reasonable grounds to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood. If a preliminary breath analysis is
administered and the results of the analysis indicate that the child has an alcohol concentration in
his or her blood of less than two hundredths of one percent, by weight, the child may not be taken
into custody unless other grounds exist under subsection (b), section eight, article five, chapter
forty-nine of this code. Upon taking a child into custody pursuant to the provisions of this section,
the official shall take all reasonable steps to cause notification to be made to the child's parent or
custodian or, if the parent or custodian cannot be located, to a close relative.(c) Upon taking a child into custody pursuant to this section, the official shall take the child
to a facility where a secondary test of the child's blood or urine may be administered at the direction
of the official or a test of the child's breath may be administered by the official. The law-
enforcement agency by which such law-enforcement official is employed shall designate whether
the secondary test is a test of either blood, breath or urine: Provided, That if the test so designated
is a blood test and the child refuses to submit to the blood test, then the law-enforcement official
taking the child into custody shall designate in lieu thereof a breath test to be administered.
Notwithstanding the provisions of section seven of this article, a refusal to submit to a blood test
only shall not result in the revocation of the child's license to operate a motor vehicle in this state.
Any child taken into custody pursuant to this section shall be given a written statement advising him
or her that a refusal to submit to a secondary test of either blood, breath or urine, as finally
designated by the law-enforcement agency or official in accordance with this subsection, will result
in the suspension of his or her license to operate a motor vehicle in this state for a period of at least
thirty days or a revocation of the license for a period up to life.(d) If the law-enforcement official taking the child into custody is employed by a
law-enforcement agency which does not have available the testing equipment or facilities necessary to conduct any secondary breath test which may be administered pursuant to the provisions of this
section, then the official who took the child into custody may request another qualified person to
administer a secondary breath test: Provided, That the breath test shall be administered in the
presence of the official who took the child into custody. The results of such breath test may be used
in evidence to the same extent and in the same manner as if such test had been conducted by the law-
enforcement official who took the child into custody. The qualified person administering the breath
test must be a member of the division of public safety, the sheriff of the county wherein the child
was taken into custody or any deputy of such sheriff, or a law-enforcement official of another
municipality within the county wherein the child was taken into custody. Only the person actually
administering the secondary breath test is competent to testify as to the results and the veracity of
the test. If the secondary test is a blood test, the test shall be conducted in accordance with the
provisions of section six of this article.(e) After taking the child into custody, if the law-enforcement official has reasonable cause
to believe that the act of the child in driving the motor vehicle is such that it would provide grounds
for arrest for an offense defined under the provisions of section two of this article if the child were
an adult, then the official shall proceed to treat the child in the same manner as any other child taken
into custody without a warrant or court order(f) If the results of any secondary test administered pursuant to this section indicate that the
child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of
(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, 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 evidence 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 (b) 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; (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.(c) 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 subsection (a) 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 West Virginia state police.(d) 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.(a) Plea bargaining in any case in which the warrant, indictment or information charges an
offense under subsection (j) or (k), section two of this article, and which would allow a defendant
to enter a plea to a violation of another subsection of section two of this article, is prohibited, unless
there is insufficient evidence to prove the state's case, or testimony of a material witness cannot be
obtained.(b) As used in this section, "plea bargaining" means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge,
whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises,
commitments, concessions, assurances, or consideration by the prosecuting attorney or judge
relating to any charge against the defendant or to the sentencing of the defendant.(a) Any person who is licensed to operate a motor vehicle in this state and who drives a
motor vehicle in this state shall be deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set forth in this article for the determination
of whether his or her license to operate a motor vehicle in this state should be revoked because he
or she (1) Was under the influence of alcohol; or(2) Was under the influence of any controlled substance; or(3) Was under the influence of any other drug; or(4) Was under the combined influence of alcohol and any controlled substance or any other
drug; or(E) Had an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight.(b) Any law-enforcement officer arresting a person for an offense described in section two,
article five of this chapter or for an offense described in a municipal ordinance which has the same
elements as an offense described in (c) If, upon examination of the written statement of the officer and the tests results described
in subsection (b) of this section, the commissioner shall determine that a person was arrested for an
offense described in section two, article five of this chapter or for an offense described in a
municipal ordinance which has the same elements as an offense described in said section two of
article five, and that the results of any secondary test or tests indicate that at the time the test or tests
were administered the person had, in his or her blood, an alcohol concentration of (d) Any law-enforcement officer taking a child into custody under the provisions of section
six-a, article five of this chapter who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, or that the act of the child in driving the motor vehicle was such that it
would provide grounds for arrest for an offense defined under the provisions of section two, article
five of this chapter if the child were an adult, shall report to the commissioner of the division of
motor vehicles by written statement within forty-eight hours the name and address of the child.(e) If applicable, the report shall include a description of the specific offense with which the
child could have been charged if the child were an adult, and a copy of the results of any secondary
tests of blood, breath or urine. The signing of the statement required to be signed by this subsection
shall constitute an oath or affirmation by the person signing such statement that the statements
contained therein are true and that any copy filed is a true copy. Such 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.(f) Upon examination of the written statement of the officer and any test results described
in subsection (d) of this section, if the commissioner determines that the results of the tests indicate
that at the time the test or tests were administered the child had, in his or her blood, an alcohol
concentration of two hundredths of one percent or more, by weight, but also determines that the act
of the child in driving the motor vehicle was not such that it would provide grounds for arrest for
an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g), section two,
article five of this chapter if the child were an adult, the commissioner shall make and enter an order
suspending the child's license to operate a motor vehicle in this state. If the commissioner
determines that the act of the child in driving the motor vehicle was such that it would provide
grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f)
or (g), section two, article five of this chapter if the child were an adult, the commissioner shall
make and enter an order revoking the child's license to operate a motor vehicle in this state. A copy
of such order shall be forwarded to the child by registered or certified mail, return receipt requested,
and shall contain the reasons for the suspension or revocation and describe the applicable suspension
or revocation periods provided for in section two of this article. No suspension or revocation shall
become effective until ten days after receipt of a copy of such order.§17C-5A-1a. Revocation upon conviction for driving under the influence of alcohol, controlled substances or drugs.
(b) The clerk of the court in which a person is convicted for an offense described in section
two, article five of this chapter or for an offense described in a municipal ordinance which has the
same elements as an offense described in (c) If, upon examination of the transcript of the judgment of conviction, the commissioner
shall determine that the person was convicted for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements
as an offense described in said section two of article five, (d) The provisions of this section shall not apply if an order reinstating the operator's license of the person has been entered by the commissioner prior to the receipt of the transcript of the
judgment of conviction.(e) For the purposes of this section, a person is convicted when the person enters a plea of
guilty or is found guilty by a court or jury.(a) Upon the written request of a person whose license to operate a motor vehicle in this state
has been revoked or suspended under the provisions of section one of this article or section seven,
article five of this chapter, the commissioner of motor vehicles shall stay the imposition of the
period of revocation or suspension and afford the person an opportunity to be heard. The written
request must be filed with the commissioner in person or by registered or certified mail, return
receipt requested, within thirty calendar days after receipt of a copy of the order of revocation or
suspension or no hearing will be granted. The hearing shall be before the commissioner or a hearing
examiner retained by the commissioner who shall rule on evidentiary issues and submit proposed
findings of fact and conclusions of law for the consideration of the commissioner and all of the
pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The hearing shall
be held at an office of the division located in or near the county wherein the arrest was made in this
state or at some other suitable place in the county wherein the arrest was made if an office of the
division is not available. (b) Any such hearing shall be held within one hundred eighty days after the date upon which
the commissioner received the timely written request therefor, unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing on the commissioner's own
motion, or upon application for each person for good cause shown. The commissioner shall adopt
and implement by a procedural rule written policies governing the postponement or continuance of any such hearing on the commissioner's own motion or for the benefit of any law-enforcement
officer or any person requesting the hearing, and such policies shall be enforced and applied to all
parties equally. For the purpose of conducting the hearing, the commissioner shall have the power
and authority to issue subpoenas and subpoenas duces tecum in accordance with the provisions of
section one, article five, chapter twenty-nine-a of this code: Provided, That the notice of hearing
to the appropriate law-enforcement officers by registered or certified mail, return receipt requested,
shall constitute a subpoena to appear at the hearing without the necessity of payment of fees by the
division of motor vehicles. (c) Law-enforcement officers shall be compensated for the time expended in their travel and
appearance before the commissioner by the law-enforcement agency by whom they are employed
at their regular rate if they are scheduled to be on duty during said time or at their regular overtime
rate if they are scheduled to be off duty during said time.(d) The principal question at the hearing shall be whether the person did drive a motor
vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's blood of The commissioner may propose a legislative rule in compliance with the provisions of article
three, chapter twenty-nine-a of this code, which rule may provide that if a person accused of driving
a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of
driving a motor vehicle while having an alcohol concentration in the person's blood of (e) In the case of a hearing wherein a person is accused of driving a motor vehicle while
under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle
while having an alcohol concentration in the person's blood of (f) If, in addition to a finding that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of (g) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of (h) If, in addition to a finding that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of (i) If the commissioner finds by a preponderance of the evidence that the person did drive
a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of ten hundredths of one
percent or more, by weight, or finds that the person, being an habitual user of narcotic drugs or
amphetamine or any derivative thereof, did drive a motor vehicle, or finds that the person knowingly
permitted the person's vehicle to be driven by another person who was under the influence of
alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by
another person who had an alcohol concentration in his or her blood of (j) If, in addition to a finding that the person did drive a motor vehicle while under the age
of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than (k) If, in addition to a finding that the person did drive a motor vehicle while under the age
of twenty-one years with an alcohol concentration in his blood of two hundredths of one percent or
more, by weight, but less than (l) If the commissioner finds by a preponderance of the evidence that the person did drive
a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but less than (m) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of (n) For purposes of this section, where reference is made to previous suspensions or
revocations under this section, the following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or revocations under this section
or section one of this article:(1) Any administrative revocation under the provisions of the prior enactment of this section
for conduct which occurred within the ten years immediately preceding the date of arrest.(2) 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, article five of this chapter, for conduct which
occurred within the ten years immediately preceding the date of arrest.(3) Any revocation under the provisions of section seven, article five of this chapter, for
conduct which occurred within the ten years immediately preceding the date of arrest.(q) If the commissioner finds to the contrary with respect to the above issues, the
commissioner shall rescind his or her earlier order of revocation or shall reduce the order of
revocation to the appropriate period of revocation under this section, or section seven, article five
of this chapter.A copy of the commissioner's order made and entered following the hearing shall be served
upon the person by registered or certified mail, return receipt requested. During the pendency of
any such hearing, the revocation of the person's license to operate a motor vehicle in this state shall
be stayed.If the commissioner shall after hearing make and enter an order affirming the commissioner's
earlier order of revocation, the person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay enforcement of the order. The court
may grant a stay or supersedeas the order only upon motion and hearing, and a finding by the court
upon the evidence presented, that there is a substantial probability that the appellant shall prevail
upon the merits, and the appellant will suffer irreparable harm if the order is not stayed: Provided,
That in no event shall the stay or supersedeas of the order exceed one hundred fifty days.
Notwithstanding the provisions of section four, article five, chapter twenty-nine-a of this code, the
commissioner may not be compelled to transmit a certified copy of the transcript of the hearing to
the circuit court in less than sixty days.(r) In any revocation or suspension pursuant to this section, if the driver whose license is
revoked or suspended had not reached the driver's eighteenth birthday at the time of the conduct for
which the license is revoked or suspended, the driver's license shall be revoked or suspended until
the driver's eighteenth birthday, or the applicable statutory period of revocation or suspension
prescribed by this section, whichever is longer.(s) Funds for this section's hearing and appeal process may be provided from the drunk
driving prevention fund, as created by section forty-one, article two, chapter fifteen of this code,
upon application for such funds to the commission on drunk driving prevention.No dealer in new or used automobiles shall sell, lease, transfer or trade, at retail, any
passenger automobile which is manufactured after the first day of January, §17C-15-49. Operation of vehicles with safety belts; exception; penalty; civil actions; educational program by division of West Virginia state police.
(a) Effective the first day of September, (b) The required use of safety belts as provided herein does not apply to a duly appointed or
contracted rural mail carrier of the United States postal service who is actually making mail
deliveries or to a passenger or operator with a physically disabling condition whose physical
disability would prevent appropriate restraint in (c) The transportation of any child under the age of sixteen in the enclosed or open cargo
area of any passenger vehicle, van, pickup truck, or towed uncovered open bed trailer is prohibited
on any street or highway of this state and shall be a violation of this section: Provided, That this
section does not apply to any motor vehicle operated as a part of an official or properly authorized
and controlled parade or special event, or while engaged in farm work off the streets or highways
of this state.On motion of Delegates Trump and Faircloth, the amendment was amended on page eleven,
at the end of section two, following the period, by inserting a new subsection "(r)" to read as follows:"(r) In addition to any and all other costs assessed against a person convicted of an offense
under this section, there shall be assessed upon each person who is convicted of an offense under
this section, costs of fifty dollars, which costs shall be collected and remitted by the clerk of the
court in which the person was convicted to the sheriff as treasurer of the county in which the offense
was committed."Delegate Trump then moved to amend the amendment on page six, section six-b, line 24, by
following the period by inserting the following:(a) The basic foundation program for each county for the fiscal year shall be the sum of the
amounts computed in accordance with the provisions of sections four, five, six, seven, eight, nine
and ten [§§18-9A-4, 18-9A-5, 18-9A-6, 18-9A-7, 18-9A-8, 18-9A-9 and 18-9A-10] of this article.
On the first working day of July in each year, the state board shall determine the basic foundation
program for each county for that fiscal year. Data used in the computations relating to net and
adjusted enrollment, and the number of professional educators, shall be for the second month of the
prior school term, except for "growth counties" as that term is defined in section twelve-a (12a) of
this article. For "growth counties," as that term is defined in section twelve-a (12a) of this article,
the data used in the computations relating to net and adjusted enrollment, and the number of
professional educators, shall be a statistical projection of enrollment, as determined and calculated
as set forth in section twelve-a (12a) of this article. Transportation expenditures used in these
computations shall be for the most recent year in which data are available. The allocated state aid
share of the county's basic foundation program shall be the difference between the cost of its basic
foundation program and the county's local share as determined in section eleven [§18-9A-11] of this article except as provided in subsection (b) of this section. (b) The allocated state aid share shall be adjusted in the following circumstances in the
following manner: Provided, That prior to such adjustment, the state tax commissioner shall provide
the state board, by the fifteenth day of January of each year, a certified listing of those counties in
which such adjustment shall be made pursuant to this subsection, together with the amount of
revenue which will not be available to each county board in the ensuing fiscal year as a result of the
circumstance: (1) In those instances where the local share as computed under section eleven of this article
is not reflective of local funds available because the county is under a final court order to refund or
credit property taxes paid in prior years, the allocated state aid share shall be the county's basic
foundation program, minus the local share as computed under section eleven of this article, plus the
amount of property tax the county is unable to collect or must refund due to the final court order:
Provided, That said adjustment shall not be made or shall only be made proportionately when the
Legislature fails to fund or funds only in part the public school basic foundation support plan state
share at a level sufficient to cover the reduction in state share: Provided, however, That nothing
herein provided shall be construed to require or mandate any level of funding by the Legislature. (2) In those instances where the local share as computed under section eleven of this article
is not reflective of local funds available because the county is collecting tax based upon an assessed
value which is less than that determined by the tax commissioner in the most recent published
survey of property valuations in the state due to an error in the published survey, which error is
certified to by the tax commissioner, the allocated state aid share shall be the county's basic
foundation program, minus the local share as computed under section eleven of this article, plus the
amount of property tax the county is unable to collect based on differences in the assessed valuation between those in the most recent published survey of valuation and the corrected assessed value
actually levied upon by the county: Provided, That said adjustment shall not be made or shall only
be made proportionately when the Legislature fails to fund or funds only in part the public school
basic foundation support plan state share at a level sufficient to cover the reduction in state share:
Provided, however, That nothing herein provided shall be construed to require or mandate any level
of funding by the Legislature. (3) In instances where a county is unable to collect property taxes from a taxpayer during
the pendency of any court proceeding, the allocated state aid share shall be the county's basic
foundation program minus the local share as computed under section eleven [§18-9A-11] of this
article, plus the amount the county is unable to collect as a result of the pending court proceedings
as certified by the tax commissioner: Provided, That the county is required to reimburse the amount
of allocated state aid share attributable to the amount of property tax it later receives upon
completion of court proceedings, which shall be paid into the general revenue fund of the state:
Provided, however, That said adjustment shall not be made or shall only be made proportionately
when the Legislature fails to fund or funds only in part the public school basic foundation support
plan state share at a level sufficient to cover the reduction in state share: Provided further, That
nothing herein provided shall be construed to require or mandate any level of funding by the
Legislature. (c) The allocated state aid share shall be adjusted in any county receiving payments or
contributions in lieu of property taxes. In instances where a county receives payments or
contributions in lieu of property taxes, the allocated state aid share shall be the county's basic
foundation program minus the local share as computed under section eleven [§18-9A-11] of this
article, plus any amounts added pursuant to subsection (b) of this section minus the payments or contributions in lieu of property taxes which are distributed by the sheriff to the county board of
education. In determining the amount of such contribution or payment in lieu of taxes, each county
commission shall provide to the state tax commissioner, by the first day of January of each year, the
total amount of such payments or contributions paid to the county and the proportion of the total
amount that has been or will be distributed to the county board of education. The state tax
commissioner then shall provide the state board, by the fifteenth day of January of each year, a
certified listing of those counties in which an adjustment pursuant to this section shall be made,
together with the amount of revenue which will be available to each county board in the ensuing
fiscal year as a result of contribution or payment in lieu of taxes. (d) Total basic state aid to the county shall be the computed state share of basic foundation
support. After such computation is completed, the state board shall immediately certify to each
county board the amount of state aid allocated to the county for that fiscal year, subject to any
qualifying provisions of this article. §18-9A-12a. Calculation of Net Enrollment for Growth Counties
(a) "Growth Counties" defined. For purposes of this section and the calculation of net and
adjusted enrollment under this article, the term "growth county" shall mean a county where the net
enrollment for the second month of the prior school term in grades K-12 is a greater number than
the net enrollment for that county in grades K-12 for the school term exactly five years earlier.(b) Statistical Projection of Net Enrollment Required for "Growth Counties." For all growth
counties, as that term is defined above, beginning with fiscal year 2003-2004, the term "net
enrollment" as used in section twelve and elsewhere within this article, shall be determined and
calculated in accordance with this section. The state board shall make a statistical projection of the
net enrollment for each county of the state that is a "growth county." This statistical projection shall project the net enrollment of each county for the school term of the fiscal year for which the
foundation program is being paid.(c) How "Net Enrollment" Calculated for Growth Counties.The statistical projections of net
enrollment required by this section shall be made by using the net enrollment figures for each
growth county as follows.For each growth county, the
"four-year growth in net enrollment" shall be calculated. To calculate the "four-year growth in net
enrollment," the state board shall take the actual net enrollment for each growth county taken in the
second month of the prior school term. From that number, the state board shall subtract the net
enrollment for that county for the school term exactly five years earlier. The resulting number is
the "four-year growth in net enrollment."The average net enrollment
growth shall be multiplied by two and one half and the product shall be added to the actual net
enrollment for that county taken in the second month of the prior school term. The resulting number
shall be the net enrollment for that county and that number is to be used as "net enrollment"
provided in Section Twelve and elsewhere in this Article.(d) Previous Projections Not To Be Used in Subsequent Years. In calculating net enrollment
growth counties for subsequent fiscal years, the statistical projections of net enrollment made for
previous years shall not be used. Rather, the projection of net enrollment for a growth county for
the current year will always be calculated using the actual numbers for the "four-year growth in net enrollment," as opposed to prior statistical projections of net enrollment."
Delegate Staton asked and obtained unanimous consent that further consideration of the
amendment be postponed until the completion of the remaining amendments to the Committee
amendment.On motion of Delegate Trump, the amendment was then amended on page nineteen, section
one, line nine, by striking out the words "(E) Had an alcohol concentration in his or her blood of
eight hundredths of one percent or more, by weight." and inserting in lieu thereof the following "(5) Had an alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight; or(6) Did refuse to submit to any designated secondary chemical test; or(7) Did drive a motor vehicle while under the age of twenty-one years with 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."Delegate Blair then moved to amend the amendment on page forty, following line eighteen,
by striking the remainder of the amendment.On the adoption of the amendment to the amendment, Delegate Overington demanded the
yeas and nays, which demand was sustained.The yeas and nays having been ordered, they were taken (Roll No. 55), and there were--yeas
32, nays 58, absent and not voting 10, with the yeas and absent and not voting being as follows:Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael, Renner, Schadler.So, a majority of the members present and voting not having voted in the affirmative, the
amendment to the amendment was not adopted.On motion of Delegate Amores, the amendment was then amended on page one, following
the enacting clause, by inserting the following:The division, upon suspending or revoking a license, shall not require that the license be
surrendered to and be retained by the division. The surrender of a license shall not be a precondition
to the commencement and tolling of any applicable period of suspension or revocation: Provided,
That before the license may be reinstated, the licensee shall pay a fee of fifteen dollars, in addition
to all other fees and charges, which shall be collected by the division and deposited in a special
revolving fund to be appropriated to the division for use in the enforcement of the provisions of this
section: Provided, however, That when any license is suspended for failure to maintain motor
vehicle liability insurance, the reinstatement fee is fifty dollars. Further, before the license may be
reinstated, the licensee shall pay costs of fifteen dollars, in addition to all other fees and charges,
which shall be collected by the division and deposited in a special revenue account in the state
treasury. Expenditures from the account shall be made by the executive director of public defender
services to provide legal representation of persons accused of violations of section two, article five,
chapter seventeen-c of this code when the representation is authorized pursuant to the provisions of
article twenty-one, chapter twenty-nine of this code. Expenditures from the fund are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and
in accordance with the provisions of article three, chapter twelve of this code and upon the
fulfillment of the provisions set forth in article two, chapter five-a of this code: Provided, That for
the fiscal year ending the thirtieth day of June, two thousand four, expenditures are authorized from
collections rather than pursuant to an appropriation by the Legislature."The Clerk next reported the amendment previously offered by Delegate Trump, having been
postponed until this time.Delegate Trump then asked and obtain unanimous consent to withdraw his amendment.Subsequently, On motion of Delegates Trump and Amores, the amendment was then amended on page
sixteen, section eight, after line six, by inserting the following:"(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."And,On page eleven, section five, following subsection (r), by inserting a new subsection (s), to
read as follows:"(s) A defendant who will present a defense attacking the validity of the secondary test of
blood, breathe or urine shall serve notice of such defense on the state no later than seven days before
trial."The question before the House being the adoption of the Committee amendment, as
amended, the same was put and prevailed.Having been engrossed, the bill was then read a third time.The question being on the passage of the bill, the yeas and nays were taken (Roll No. 56),
and there were--yeas 73, nays 17, absent and not voting 10, with the nays and absent and not voting
being as follows:Nays: Blair, Cann, Duke, Frich, Leggett, Louisos, Overington, Perry, Romine, Shaver,
Shelton, Stalnaker, Thompson, R., Wakim, Walters, Webb and Williams.Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael, Renner and Schadler.So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 2203) passed.On motion of Delegate Amores, the title of the bill was amended to read as follows:Com. Sub. for H. B. 2203 - "A Bill to amend and reenact section nine, article three, chapter
seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and
to amend and reenact sections forty-three and forty-nine, article fifteen, chapter seventeen-c of said
code, all relating to the safe operation and use of motor vehicles; establishing a fee for reinstatement
of drivers licenses; reducing the blood alcohol content threshold for driving under the influence;
increasing fine for second offense driving under the influence; requiring public notice by the
governor's committee on crime and delinquency on new blood alcohol threshold; assessing an
additional fee for persons convicted for driving under the influence; requiring notice to state by
defendant for certain defenses; reducing the threshold for children's blood alcohol content for prima
facie showing of driving under the influence; prohibiting plea bargaining of certain cases; reducing
blood alcohol content threshold for drivers licenses administrative revocation hearings; removing
certain requirements relating to drivers licenses administrative revocation hearings; requiring all new
and used automobiles to be equipped with safety seat belts for all seating locations; prohibiting children from riding in certain cargo areas; and making the offense of failure to wear a safety belt
a primary offense and changing the penalty therefor."On motion of Delegate Staton, the House of Delegates then reconsidered the amendment to
the title, the passage of the bill and the Committee amendment thereto, respectively. Delegate Louisos then offered the following amendment to the amendment on page one,
following the enacting section, by amending and reenacting section twelve, article fourteen, chapter
seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, to read
as follows:(a) The West Virginia board of education by and with the advice of the motor vehicle
commissioner shall adopt and enforce rules consistent with this chapter, including the provisions
of subsection (c), section nineteen, article fifteen of this chapter, to govern the design and operation
of all school buses used for the transportation of school children when owned and operated by any
county board of education or privately owned and operated under contract with any county board
of education in this state and these rules shall by reference be made a part of any such contract with
a county board of education. Every county board of education, its officers and employees, and every
person employed under contract by a county board of education shall be subject to these rules.(b) Effective the first day of July, two thousand four, all new motor vehicles purchased by
a public governmental agency or by any person employed by, or under contract with, a county board
of education to transport school children and operated for the transportation of school children shall
be equipped with seat restraints for all passengers. The seat restraints required by this section shall
meet federal and state seat restraint standards for school age children. Every county board of education, its officers and employees, and every person employed under contract by a county board
of education to transport school children are responsible for training school children in the proper
use of seat restraints and for ensuring seat restraints are used by all school children when being
transported.(C) Any officer or employee of any county board of education who violates any of said rules
or who fails to include the obligation to comply with said rules in any contract executed by him or
her on behalf of a county board of education is guilty of misconduct and subject to removal from
office or employment. Any person operating a school bus under contract with a county board of
education who fails to comply with any of said rules is guilty of breach of contract and the contract
shall be canceled after notice and hearing by the responsible officers of the county board of
education."The Speaker put the question on the foregoing amendment to the amendment, which did not
prevail.The question now before the House being the Committee amendment, as amended, the same
was put and prevailed.Having been engrossed, the bill was then read a third time.The question being on the passage of the bill, the yeas and nays were taken (Roll No. 57),
and there were--yeas 78, nays 13, absent and not voting 9, with the nays and absent and not voting
being as follows:Nays: Blair, Cann, Duke, Frich, Leggett, Louisos, Overington, Romine, Stalnaker,
Thompson, R., Wakim, Walters and Webb.Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael and Renner.So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (Com. Sub. for H. B. 2203) passed.On motion of Delegate Amores, the title of the bill was amended to read as follows:Com. Sub. for H. B. 2203 - "A Bill to amend and reenact section nine, article three, chapter
seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and
to amend and reenact sections forty-three and forty-nine, article fifteen, chapter seventeen-c of said
code, all relating to the safe operation and use of motor vehicles; establishing a fee for reinstatement
of drivers licenses; reducing the blood alcohol content threshold for driving under the influence;
increasing fine for second offense driving under the influence; requiring public notice by the
governor's committee on crime and delinquency on new blood alcohol threshold; assessing an
additional fee for persons convicted for driving under the influence; requiring notice to state by
defendant for certain defenses; reducing the threshold for children's blood alcohol content for prima
facie showing of driving under the influence; prohibiting plea bargaining of certain cases; reducing
blood alcohol content threshold for drivers licenses administrative revocation hearings; removing
certain requirements relating to drivers licenses administrative revocation hearings; requiring all new
and used automobiles to be equipped with safety seat belts for all seating locations; prohibiting
children from riding in certain cargo areas; and making the offense of failure to wear a safety belt
a primary offense and changing the penalty therefor."Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.Delegate Blair submitted a written vote explanation on the passage of the bill, which was as
follows:Delegate Blair. Although I wholeheartedly support lowering the blood alcohol content from .10 to .08, I have a serious problem with making the wearing of seat belts a primary offense and
I could not in good conscience vote for the passage of Committee Substitute for H. B. 2203. While
I do believe that lives will be saved by changing the requirement from a secondary to a primary
offense, I also believe that such a requirement violates an individual's civil liberties. West Virginia
law already requires that a person may not operate a passenger vehicle on the public streets and
highways of this state unless the person is restrained by a safety belt, yet every day individuals choose
to break the law by not buckling up. In addition, while I have great respect for our law enforcement
officers, I am fearful that making the wearing of seat belts a primary offense will increase the
possibility of profiling and further reduce an individual's civil liberties. Most importantly, my
constituents have made me very aware of their overwhelming opposition to making the wearing of seat
belts a primary offense.
H. B. 2748, Preventing mail order or internet sales of tobacco products to persons under
eighteen years of age; on third reading, coming up in regular order, was read a third time.The question being on the passage of the bill, the yeas and nays were taken (Roll No. 58),
and there were--yeas 90, nays 1, absent and not voting 9, with the nays and absent and not voting
being as follows:Nays: Schadler.Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael and Renner.So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 2748) passed.Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.H. B. 2970, Increasing the ratios of professional and service personnel to students in net enrollment; on third reading, coming up in regular order, with an amendment by Delegate Trump
pending, was reported by the Clerk.Delegate Trump asked and obtained unanimous consent that his amendment be withdrawn.The bill was then read a third time (for the third time!).The question being on the passage of the bill, the yeas and nays were taken (Roll No. 59),
and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being
as follows:Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael and Renner.So, a majority of the members present and voting having voted in the affirmative, the
Speaker declared the bill (H. B. 2970) passed.Delegate Staton moved that the bill take effect July 1, 2003.On this question, the yeas and nays were taken (Roll No. 60), and there were--yeas 91, nays
none, absent and not voting 9, with the absent and not voting being as follows:Absent And Not Voting: Anderson, Ashley, Border, Butcher, Coleman, Faircloth,
Houston, Michael and Renner.So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2970) takes effect July 1, 2003.Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:Com. Sub. for H. B. 2114, Limiting the public education allowances provided as part of the
total basic foundation program for the 2003 fiscal year,And,Com. Sub. for H. B. 2749, Amending the West Virginia board of physical therapist rule
relating to English proficiency requirements.At the request of Delegate Staton, and by unanimous consent, leaves of absence were granted
Delegates Anderson, Ashley, Border, Butcher, Coleman, Faircloth, Houston, Michael and Renner.Delegates Pethtel and Spencer announced that they were absent on Monday, February 17,
2003 when the vote was taken on Roll No. 52, and that had they been present, they would have
voted "Yea" thereon.Delegate Trump asked and obtained unanimous consent that the remarks of Delegate Doyle,
made on Thursday, February 13, 2003, regarding the filming of a portion of God and Generals in
West Virginia, be printed in the Appendix to the Journal.Delegate Schoen asked and obtained unanimous consent that the remarks of Delegate Blair,
regarding Com. Sub. for H. B. 2203, be printed in the Appendix to the Journal.Delegate Frich asked and obtained unanimous consent that the remarks of Delegate Trump,
made on February 12, 2003, regarding President Lincoln's birthday, be printed in the Appendix to
the Journal.At 1:08 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00
a.m., Wednesday, February 19, 2003.