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Chapter 29     Entire Code


ARTICLE 1. DIVISION OF CULTURE AND HISTORY.

ARTICLE 1A. COMMISSION ON UNIFORM STATE LAWS.

ARTICLE 1B. COMMISSION ON INTERSTATE COOPERATION.

ARTICLE 1C. INTERSTATE COMMISSION ON THE POTOMAC RIVER BASIN.

ARTICLE 1D. OHIO RIVER VALLEY WATER SANITATION COMMISSION.

ARTICLE 1E. SOUTHERN STATES ENERGY COMPACT.

ARTICLE 1F. WHEELING CREEK WATERSHED PROTECTION AND FLOOD PREVENTION DISTRICT COMPACT.

ARTICLE 1G. INTERSTATE COMPACT ON AIR POLLUTION.

ARTICLE 1H. APPALACHIAN STATES LOW-LEVEL RADIOACTIVE WASTE COMPACT.

ARTICLE 1I. VOLUNTARY VETERANS MEMORIAL CHECK-OFF PROGRAM.

ARTICLE 1J. JENNINGS RANDOLPH LAKE PROJECT COMPACT.

ARTICLE 2. GEODETIC AND GEOLOGICAL SURVEY.

ARTICLE 2A. STATE AERONAUTICS COMMISSION.
§29-2A-1. Definitions.
§29-2A-2. Short title; continuation of commission; membership and compensation; quorum.
§29-2A-3. Powers and duties of commission.
§29-2A-3a
§29-2A-4. Organization of commission; meetings; reports; offices.
§29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; staff.
§29-2A-6. State financial assistance for county, municipal, and regional airports.
§29-2A-7. Federal aid.
§29-2A-8. Establishment and operation of state airports.
§29-2A-9
§29-2A-10. Public purpose of activities.
§29-2A-11. Operation of aircraft while under influence of alcohol, controlled substances or drugs; criminal penalties.
§29-2A-11a. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.
§29-2A-11b. Preliminary analysis of breath to determine alcoholic content of blood.
§29-2A-11c. How blood test administered; additional test at option of person tested; use of test results; certain immunity from liability incident to administering test.
§29-2A-11d. Interpretation and use of chemical test.
§29-2A-11e. Right to demand test.
§29-2A-11f. Fee for withdrawing blood sample and making urine test; payment of fees.
§29-2A-12. Operation of aircraft at low altitude or in careless and reckless manner; penalty.
§29-2A-13. Unauthorized taking or operation of aircraft; penalty.
§29-2A-14. Federal license required for operation of aircraft.
§29-2A-15.
§29-2A-16.
§29-2A-17
§29-2A-18
§29-2A-19
§29-2A-20. Enforcement of aeronautics laws.
§29-2A-21
§29-2A-22
§29-2A-23
§29-2A-24
§29-2A-25
§29-2A-26
§29-2A-27
§29-2A-28

ARTICLE 2B. WEATHER MODIFICATION.

ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.

ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.

ARTICLE 3B. SUPERVISION OF ELECTRICIANS.

ARTICLE 3C. CERTIFICATION OF ELECTRICAL INSPECTORS.

ARTICLE 3D. SUPERVISION OF FIRE PROTECTION WORK.

ARTICLE 3E. FIREWORKS SAFETY.

ARTICLE 4. NOTARIES PUBLIC AND COMMISSIONERS.

ARTICLE 4A. DEPARTMENT OF PUBLIC WELFARE.

ARTICLE 5. BUREAU OF NEGRO WELFARE AND STATISTICS.

ARTICLE 5A. STATE ATHLETIC COMMISSION.

ARTICLE 6. CIVIL SERVICE SYSTEM.

ARTICLE 6A. GRIEVANCE PROCEDURE FOR STATE EMPLOYEES.

ARTICLE 7. POET LAUREATE.

ARTICLE 8. BLENNERHASSETT ISLAND HISTORICAL STATE PARK COMMISSION.

ARTICLE 9. INDUSTRIAL AND PUBLICITY COMMISSION.

ARTICLE 10. STATE PLANNING BOARD.

ARTICLE 11. SURPLUS PROPERTY AGENCY.

ARTICLE 12. STATE INSURANCE.

ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.

ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL LIABILITY INSURANCE AVAILABILITY ACT.

ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.

ARTICLE 12D. WEST VIRGINIA PATIENT INJURY COMPENSATION FUND.

ARTICLE 13. ECONOMIC DEVELOPMENT AGENCY.

ARTICLE 14. STATE COMMISSION ON AGING.

ARTICLE 15. STATE COMMISSION ON INTELLECTUAL DISABILITY.

ARTICLE 16. DEPARTMENT OF PERSONNEL.

ARTICLE 17. THE WEST VIRGINIA ARTS AND HUMANITIES COUNCIL.

ARTICLE 18. WEST VIRGINIA STATE RAIL AUTHORITY.

ARTICLE 19. SOLICITATION OF CHARITABLE FUNDS ACT.

ARTICLE 20. WOMEN\'S COMMISSION.

ARTICLE 21. PUBLIC DEFENDER SERVICES.

ARTICLE 22. STATE LOTTERY ACT.

ARTICLE 22A. RACETRACK VIDEO LOTTERY.

ARTICLE 22B. LIMITED VIDEO LOTTERY.

ARTICLE 22C. WEST VIRGINIA LOTTERY RACETRACK TABLE GAMES ACT.

ARTICLE 22D. WEST VIRGINIA LOTTERY SPORTS WAGERING ACT.

ARTICLE 22E. WEST VIRGINIA LOTTERY INTERACTIVE WAGERING ACT.

ARTICLE 23. WEST VIRGINIA BOUNDARY COMMISSION.

ARTICLE 24. TECHNOLOGY-RELATED ASSISTANCE REVOLVING LOAN FUND FOR INDIVIDUALS WITH DISABILITIES ACT.

ARTICLE 25. AUTHORIZED GAMING FACILITY.

ARTICLE 26. WEST VIRGINIA COURTHOUSE FACILITIES IMPROVEMENT AUTHORITY.

ARTICLE 27. NATIONAL COAL HERITAGE AREA AUTHORITY.

ARTICLE 28. COAL HERITAGE HIGHWAY AUTHORITY.

ARTICLE 29. VOLUNTEER FOR NONPROFIT YOUTH ORGANIZATIONS ACT.

ARTICLE 30. EMERGENCY VOLUNTEER HEALTH PRACTITIONERS ACT.

ARTICLE 31. STATE RESILIENCY AND FLOOD PROTECTION PLAN ACT.

ARTICLE 2A. STATE AERONAUTICS COMMISSION.

§29-2A-1. Definitions.

As used in the statutes of West Virginia, unless the context otherwise requires:

"Aeronautics" means the art and science of flight, including, but not limited to, transportation by aircraft; the operation, construction, repair, or maintenance of aircraft, aircraft power plants and accessories, including the repair, packing, and maintenance of parachutes; the design, establishment, construction, extension, operation, improvement, repair, or maintenance of airports or other air navigation facilities; and education about aeronautics.

"Aircraft" means any contrivance now known, or hereafter invented, used or designed for navigation of or flight in the air.

"Air navigation" or "navigation" means the operation or navigation of aircraft in the air space over this state, or upon any airport within this state.

"Air navigation facility" means any facility other than one owned or controlled by the federal government used in, available for use in, or designed for use in aid of air navigation, including airports, and any structures, mechanisms, lights, beacons, markers, communications system or other instrumentalities or devices used or useful as an aid or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft or the safe and efficient operation or maintenance of an airport, and any combination of any or all of such facilities

"Airport" means any area of land or water which is used, or intended for use, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon.

"Commission" means the West Virginia State Aeronautics Commission.

"Director" means the director of the Commission.

"Municipality" means any county, city, town, village, or other political subdivision of this state. "Municipal" means pertaining to a municipality as herein defined.

"Operation of aircraft" or "operate aircraft" means the use, navigation, or piloting of aircraft in the airspace over this state or upon the ground within this state.

"Person" means any individual, firm, partnership, corporation, company, association, joint stock association, or body politic and includes any trustee, receiver, assignee, or other similar representative thereof.

§29-2A-2. Short title; continuation of commission; membership and compensation; quorum.

(a) This article may be cited as the "State Aeronautics Commission Act".

(b) The West Virginia State Aeronautics Commission is hereby continued. The current members shall retain their seats until the expiration of their terms and may be reappointed. The commission consists of five members appointed by the Governor, by and with the advice and consent of the Senate. One member shall be the Secretary of Transportation ex officio, whose term shall continue for the period that he or she holds the office of Secretary of Transportation. The other four members of the commission are initially appointed by the Governor, one to serve for a term of one year, one to serve for a term of two years, one to serve for a term of three years, and one to serve for a term of four years. The successors of the members  initially appointed as provided herein shall be appointed for terms of four years each in the same manner as the members originally appointed under this section, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of such term. Each member shall serve until the appointment and qualification of his or her successor. No more than three members of the commission shall be members of the same political party. All members of the commission shall be citizens and residents of this state. The members of the commission who are appointed by the Governor as provided by this section shall be selected with due regard to their fitness by reason of their aeronautical, legal, administrative, or management knowledge.  In making such appointments, the Governor shall, so far as may be possible and practicable, select the several members from different geographical sections of the state.

(c) No member may receive any salary for his or her services, but each shall be reimbursed for actual and necessary expenses incurred by such member in the performance of his or her duties in accordance with state travel rules.

(d) Three members are a quorum, and a quorum is necessary to conduct business. Members may participate in any meeting by phone.

§29-2A-3. Powers and duties of commission.

The commission may enter into any contracts necessary to the execution of the powers granted to it by this article. It is empowered and directed to encourage, foster, and assist in the development of aeronautics in this state and to encourage the establishment of airports and air navigation facilities. It shall cooperate with and assist the federal government, the municipalities of this state, and other persons in the development of aeronautics and shall act to coordinate the aeronautical activities of these bodies and persons. Municipalities are authorized to cooperate with the commission in the development of aeronautics and aeronautics facilities in this state. The commission is hereby given the power and authority to make such rules, policies, and guidelines as it may deem necessary and advisable for the public safety, governing the designing, laying out, locating, building, equipping and operating of all airports and the conduct of all other phases of aeronautics to effectuate the requirements of this article.

(1)  The commission shall keep on file with the Secretary of State, and at the principal office of the commission, a copy of its rules and orders having general effect for public inspection. It shall provide for the publication and general distribution of all its orders, rules, and other information of public interest. Copies of any such orders, rules, and other information shall be made available electronically and provided to any person interested, free of charge, upon request. The publication and distribution of any such order or rule proposed for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code shall be sufficient notice to the public of the provisions, requirements, and effect thereof.

 (2)  Except where otherwise prohibited, the commission is authorized to permit the West Virginia Board of Treasury Investments or the West Virginia Investment Management Board to invest, as provided by this code, any funds received by the commission pursuant to the provisions of this code.

§29-2A-3a

Repealed

Acts, 2017 Reg. Sess., Ch. 202.

§29-2A-4. Organization of commission; meetings; reports; offices.

(a)  The commission shall make, and may from time to time amend, rules for the administration of the powers granted to it by this article. The commission shall organize by electing from among its members a chairperson who shall serve as such for a period of two years. The chairperson is authorized to sign documents, execute contracts, and otherwise act for and in the name of the commission in all matters within the lawful powers of the commission and authorized by a majority of its members.

(b)  The commission shall determine the number, date, and place of its regular meetings, but at least one meeting shall be held annually at the commission’s established offices in the city of Charleston. Whenever the convenience of the public or of interested persons may be promoted, or delay or expense may be prevented, the commission may hold meetings at any other place designated by it.

(c)  The commission shall report in writing to the Governor on or before August 31 of each year. The report shall contain a summary of the commission’s proceedings during the preceding fiscal year, a detailed and itemized statement of all revenue received, and all expenditures made by or on behalf of the commission, such other information which may be necessary or useful, and any additional information which may be requested by the Governor. The fiscal year of the commission shall conform to the fiscal year of the state.

(d)  An office shall be established and maintained by the commission in the city of Charleston.

§29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; staff.

(a)  A director of aeronautics shall be appointed by the commission, with the advice and consent of the Secretary of Transportation, who shall serve for an indefinite term at the pleasure of the commission. The director shall be appointed with due regard to his or her fitness as an administrator. The director shall devote his or her time to the duties of his or her office as required and prescribed by this article and may not have any pecuniary interest in, or any stock in, or bonds of, any civil aeronautical enterprise. The Secretary of Transportation, in consultation with the commission, shall determine the director’s compensation. The compensation shall conform in general to the compensation received by persons occupying positions of similar importance and responsibility with other agencies of this state. The director’s compensation may not be paid, in whole or in part, from grant funds received by the commission.  The director shall be reimbursed for all traveling and other expenses incurred by him or her in the discharge of his or her official duties in accordance with state travel rules. The director shall be the executive officer of the commission and under its supervision shall administer the provisions of this article and the rules and orders established thereunder and all applicable laws of the state. The director shall attend, but not vote, at all meetings of the commission. The director serves as the secretary of the commission and is in charge of its offices and responsible to the commission for the preparation of reports and the collection and dissemination of data and other public information relating to aeronautics. At the direction of the commission, the director is authorized to execute contracts entered into by the commission which are legally authorized and for which funds are provided in any state or federal appropriations act.

(b)  The commission may, by written order filed in its office, delegate to the director any of the powers or duties vested or imposed upon it by this article. Any delegated powers and duties may be exercised by the director in the name of the commission. The commission may also employ any necessary administrative, engineering, technical, and clerical staff.  

§29-2A-6. State financial assistance for county, municipal, and regional airports.

The commission, out of any appropriation made to it by the Legislature or out of any funds at its disposal, may make funds available by grant or otherwise to counties, municipalities, and regional airport authorities, created under the provisions of chapter eight of this code, for the planning, acquisition, construction, improvement, maintenance, or operation of airports owned or operated or to be owned or operated by such counties, municipalities, or regional airport authorities. Acceptance of any moneys so made available to any such county, municipality, or regional airport authority, shall constitute consent by the recipient that a reasonable use of the airport may be made, upon request of the commission, by the United States government, the state, or any of their respective agencies, including the State Aeronautics Commission and the National Guard of West Virginia for state purposes related or incidental to aeronautics.

§29-2A-7. Federal aid.

(a) The commission is authorized to accept federal aid either outright or by way of matching funds, in whole or in part, as may be required by the federal government.  When matching funds are available to the commission, they may be used in compliance with the provisions of the laws and regulations of the United States for the expenditure of federal moneys for airports and other air navigation facilities.  

(b) The commission is authorized to accept and receive federal moneys and other moneys, either public or private, for and on behalf of this state, or any municipality thereof, for the planning, acquisition, construction, improvement, maintenance, and operation of airports and other air navigation facilities. The funds may be expended regardless of whether the work is to be done by the state or a municipality, or jointly.  If the funds are from the United States, they shall be expended upon such terms and conditions as are or may be prescribed by the laws of the United States and any rules or regulations made thereunder. The commission is hereby designated as the agency of the state, and is authorized to and may act as agent of any municipality of this state upon the request of such municipality, in accepting and receiving moneys on its behalf for airports or other air navigation facility purposes, and in contracting for the planning, acquisition, construction, improvement, maintenance, or operation of airports or other air navigation facilities, financed, either in whole or in part, by federal moneys. A municipality is authorized to and may enter into an agreement with the commission prescribing the terms and conditions of such agency in accordance with federal laws, rules, and regulations and with this article. All moneys paid by the United States government shall be retained by the state or paid to said municipalities under such terms and conditions as may be imposed by the United States government in making such grants.

(c)  All contracts for the planning, acquisition, construction, improvement, maintenance, and operation of airports, or other air navigation facilities made by the commission, either as the agent of the state or as the agent of any municipality therein, shall be made pursuant to the laws of this state governing the making of like contracts: Provided, That where the planning, acquisition, construction, improvement, maintenance, and operation of any airport or other air navigation facility is financed wholly or partially with federal moneys, the commission, as agent of the state or of any municipality thereof, may let contracts in the manner prescribed by the federal authorities, acting under the laws of the United States, and any rules or regulations made thereunder, notwithstanding any other state law to the contrary.

(d) All moneys accepted for disbursement by the commission pursuant to this section shall be deposited in the State Treasury, and, unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purposes for which the moneys were made available, and held by the state in trust for such purposes. All such moneys are hereby appropriated for the purposes for which they were made available and shall be expended in accordance with federal laws and regulations and this article. The commission is authorized, whether acting for this state or as the agent of any municipality therein, when requested by the United States government or any agency or department thereof, or when requested by the state or municipality for which the money has been made available, to disburse such moneys for the designated purposes, but this shall not preclude any other authorized method of disbursement.

(e) The state or any municipality therein is authorized to cooperate with the government of the United States, and any agency or department thereof, in the acquisition, construction, improvement, maintenance, and operation of airports and other air navigation facilities in this state and is authorized to accept federal aid, either by way of outright grant or by matching the funds, in whole or in part, as may be required, and to comply with the provisions of the laws of the United States and any rules or regulations made thereunder for the expenditure of federal moneys upon such airports and other navigation facilities.

§29-2A-8. Establishment and operation of state airports.

(a) The commission is authorized on behalf of and in the name of the state, out of appropriations and other moneys made available for such purposes, to plan, establish, construct, maintain, and operate airports and air navigation facilities within the state. For these purposes the commission may, by purchase, gift, devise, lease, condemnation, or otherwise, acquire such property, real or personal, as is necessary to permit safe and efficient operation of the airports and air navigation facilities. In like manner, the commission may acquire existing airports and air navigation facilities: Provided, That it shall not acquire or take over any airport or air navigation facility owned or controlled by a municipality of this or any other state without the consent of the municipality. The commission may by sale, lease, or otherwise, dispose of any such property, airport, air navigation facility, or portion thereof or interest therein. Any disposal by lease shall be made pursuant to the terms of §8-28-7 of this code. Any disposal by sale or otherwise shall be in accordance with the laws of this state governing the disposition of other property of the state, except that in the case of disposal to any municipality or state government or the United States for aeronautical purposes incident thereto the sale or other disposal may be effected in such manner and upon such terms as the commission determines are in the best interest of the state.

(b) Nothing contained in this article shall be construed to limit any right, power, or authority of the state or a municipality to regulate airport hazards by zoning.

(c) The commission may exercise any powers granted by this section jointly with any municipalities or agencies of the state government, with other states or their municipalities, or with the United States.

(d) In the condemnation of property authorized by this section, the commission shall proceed in the name of the state in the manner provided by §54-1-1, et seq. of this code.

§29-2A-9

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-10. Public purpose of activities.

The acquisition of any lands or interests therein pursuant to this article, the planning, acquisition, establishment, construction, improvement, maintenance and operation of airports and air navigation facilities, whether by the state separately or jointly with any municipalities, and the exercise of any other powers herein granted to the commission are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity. All lands and other property and privileges acquired and used by or on behalf of the state in the manner and for the purposes enumerated in this article shall and are hereby declared to be acquired and used for public and governmental purposes and as a matter of public necessity.

§29-2A-11. Operation of aircraft while under influence of alcohol, controlled substances or drugs; criminal penalties.

(a) Any person who:

(1) Operates an aircraft in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(C) He or she is under the influence of any other drug; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight; and

(2) When so operating an aircraft does any act forbidden by law or fails to perform any duty imposed by law in the operation of such aircraft, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years, or in the discretion of the court, be confined in jail not more than one year and be fined not more than $500.

(b) Any person who:

(1) Operates an aircraft in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(C) He or she is under the influence of any other drug; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $500, or both, in the discretion of the court.

(c) Any person who:

(1) Knowingly permits his or her aircraft to be operated in this state by any other person who is:

(A) Under the influence of alcohol; or

(B) Under the influence of any controlled substance; or

(C) Under the influence of any other drug; or

(D) 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 four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $500, or both, in the discretion of the court.

(d) A person violating any provision of subsection (a) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years.

(e) A person violating any provision of subsection (b) or (c) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than three years.

(f) For purposes of subsections (d) and (e) of this section relating to second and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:

(1) Any conviction under the provisions of the prior enactment of this section;

(2) Any conviction under 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) or (c) of this section.

(g) 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 such 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.

(h) The fact that any person charged with a violation of subsection (a) or (b) of this section, or any person permitted to operate an aircraft as described under subsection (c) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b) or (c) of this section.

(i) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.

(j) When any person is convicted of violating any provision of this section, the clerk of the court in which such conviction is had shall, within seventy-two hours after receipt thereof, transmit a true copy thereof to the federal aviation administration.

§29-2A-11a. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

Any person who operates an aircraft in this state is considered to have given his or her consent by the operation thereof to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood. A preliminary breath analysis may be administered in accordance with the provisions of section eleven-b of this article whenever a law-enforcement officer has reasonable cause to believe a person to have committed an offense prohibited by section eleven of this article. A secondary test of blood, breath or urine shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense prohibited by said section. The law-enforcement agency by which the law-enforcement officer is employed shall designate which one of the aforesaid secondary tests shall be administered: Provided, That if the test so designated is a blood test and the person so arrested refuses to submit to the blood test, then the law-enforcement officer making the arrest shall designate in lieu thereof either a breath or urine test to be administered.

For the purpose of this article, the term "law-enforcement officer" means and is limited to: (1) Any member of the 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; and (4) any natural resources police officer of the Division of Natural Resources. If any municipality or the Division of Natural Resources does not have available to its law-enforcement officers the testing equipment or facilities necessary to conduct any secondary test which a law-enforcement officer may administer under this article, any member of the West Virginia State Police, the sheriff of the county wherein the arrest is made or any deputy of the sheriff or any municipal law-enforcement officer of another municipality within the county wherein the arrest is made may, upon the request of the arresting law-enforcement officer and in his or her presence, conduct a secondary test and the results of the test 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. Only the person actually administering or conducting the test is competent to testify as to the results and the veracity of the test.

§29-2A-11b. Preliminary analysis of breath to determine alcoholic content of blood.

When a law-enforcement officer has reason to believe a person has committed an offense prohibited by section eleven of this article, the law-enforcement officer may require such person to submit to a preliminary breath analysis for the purpose of determining such person's blood alcohol content. Such breath analysis must be administered as soon as possible after the law-enforcement officer has a reasonable belief that the person has been operating an aircraft while under the influence of alcohol, controlled substances or drugs. Any preliminary breath analysis required under this section must be administered with a device and in a manner approved by the bureau of public health for that purpose. The results of a preliminary breath analysis shall be used solely for the purpose of guiding the officer in deciding whether an arrest should be made. When an operator is arrested following a preliminary breath analysis, the tests as hereinafter provided in this article shall be administered in accordance with the provisions thereof.

§29-2A-11c. 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 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 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 venepuncture. The person tested may, at his or her own expense, have a doctor of medicine or osteopathy, 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, may be in anyway 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.

§29-2A-11d. Interpretation and use of chemical test.

(a) (1) Upon trial for the offense of operating an aircraft 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 operating an aircraft while under the influence of alcohol, controlled substances or drugs, evidence of the amount of alcohol in the person's blood at the time of the arrest or of the acts alleged, as shown by a chemical analysis of his or her blood, breath or urine, is admissible, if the sample or specimen was taken within two hours from and after the time of arrest or of the acts alleged, and shall give rise to the following presumption or have the following effect: Evidence that there was, at that time, four hundredths of one percent or more, by weight, of alcohol in his or her blood, shall be prima facie evidence that the person was under the influence of alcohol.

(2) Percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per one hundred cubic centimeters of blood.

(b) A chemical analysis of a person's blood, breath or urine, in order to give rise to the presumption 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 bureau of public 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.

(c) The provisions of this article shall not limit the introduction in any administrative or judicial proceeding of any other competent evidence bearing on the question of whether the person was under the influence of alcohol, controlled substances or drugs.

§29-2A-11e. Right to demand test.

Any person lawfully arrested for operating an aircraft 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, breath or urine be taken within two 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.

§29-2A-11f. Fee for withdrawing blood sample and making urine test; payment of fees.

A reasonable fee shall be allowed to the person withdrawing a blood sample or administering a urine test at the request and direction of a law-enforcement officer in accordance with the provisions of this article. If the person whose blood sample was withdrawn or whose urine was tested was arrested and charged with a violation of section eleven of this article, the county having venue of such charge shall pay said fee and if said person is subsequently convicted of such charge, such fee shall be taxed as a part of the costs of the criminal proceeding and shall be paid, notwithstanding any other provision of this code to the contrary, into the General Fund of said county.

§29-2A-12. Operation of aircraft at low altitude or in careless and reckless manner; penalty.

No person shall operate an aircraft at an altitude of less than one thousand feet over any city, town, or village, or public gathering elsewhere, except at a duly established airport or when necessary to make a safe and proper landing or take off in an emergency or at a duly established airport.

No person shall operate an aircraft in the air over, or on the ground or water within this state in a careless and reckless manner in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and in a manner so as to endanger or be likely to endanger any person or property.

A person violating any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than $500 or by confinement in jail for not more than one year, or both.

§29-2A-13. Unauthorized taking or operation of aircraft; penalty.

No person, other than the duly authorized agent, servant or employee of the owner thereof, shall take, without the knowledge and consent of the owner, and operate within this state any aircraft owned by another. Any person who, wilfully and without the knowledge or consent of the owner or person in lawful charge thereof, and with the intent to deprive such owner or person in lawful charge of the possession or use thereof, either temporarily or permanently, shall take possession of, enter and operate, or otherwise take and use, any aircraft belonging to another or in his lawful possession; and any person who shall assist, aid and abet, or be present for the purpose and with the intent to assist, aid or abet, another person in such taking possession of, entering and operating, or otherwise taking and using any such aircraft; and any person who shall receive, buy, conceal, or otherwise dispose of any such aircraft knowing the same to have been stolen or taken without the knowledge or consent of the owner or person in lawful charge thereof, shall be deemed guilty of a felony and, upon conviction thereof, shall be fined not less than two hundred nor more than $5,000 and confined in the penitentiary for not less than two nor more than ten years.

§29-2A-14. Federal license required for operation of aircraft.

No person shall operate or cause or authorize to be operated any aircraft within this state unless such aircraft has an appropriate effective certificate, permit or license issued by the United States, if such certificate, permit or license is required by the United States; nor shall any person engage in aeronautics as an airman in this state unless he or she has an appropriate effective airman certificate, permit, rating or license issued by the United States authorizing him or her to engage in the particular class of aeronautics in which he or she is engaged, if such certificate, permit, rating or license is required by the United States.

Where a certificate, permit, rating or license is required for an airman by the United States, it shall be kept in his or her personal possession when he or she is operating within this state and shall be presented for inspection upon the demand of any  law enforcement officer, or any official, manager or person in charge of any airport upon which the airman shall land, or upon the reasonable request of any other person. Where a certificate, permit or license is required by the United States for an aircraft, it shall be carried in the aircraft at all times while the aircraft is operating in the state, shall be conspicuously posted in the aircraft where it may readily be seen by passengers or inspectors, and shall be presented for inspection upon the demand of any law enforcement officer, or any official, manager or person in charge of any airport upon which the aircraft shall land, or upon the reasonable request of any person.

§29-2A-15.

Repealed.

Acts, 1995 Reg. Sess., Ch. 3.

§29-2A-16.

Repealed.

Acts, 1995 Reg. Sess., Ch. 3.

§29-2A-17

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-18

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-19

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-20. Enforcement of aeronautics laws.

It shall be the duty of all law enforcement officers, to enforce and assist in the enforcement of this article and all other laws of this state relating to aeronautics. Law enforcement officers are authorized to inspect and examine at reasonable hours any aircraft, the credentials of any airman or other person engaged in aeronautics required by the laws of this state or of the United States to have in his or her possession credentials evidencing his or her authority or permission to engage in aeronautics, any premises and the buildings and other structures thereon, where airports, air navigation facilities or other aeronautical activities are operated or conducted.

§29-2A-21

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-22

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-23

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-24

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-25

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-26

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-27

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

§29-2A-28

Repealed

Acts, 2019 Reg. Sess., Ch. 130.

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