West Virginia Code
1 - DIVISION OF CULTURE AND HISTORY
1A - COMMISSION ON UNIFORM STATE LA
1B - COMMISSION ON INTERSTATE COOPE
1C - INTERSTATE COMMISSION ON THE P
1D - OHIO RIVER VALLEY WATER SANITA
1E - SOUTHERN STATES ENERGY COMPACT
1F - WHEELING CREEK WATERSHED PROTE
1G - INTERSTATE COMPACT ON AIR POLL
1H - APPALACHIAN STATES LOW-LEVEL R
1I - VOLUNTARY VETERANS MEMORIAL CH
1J - JENNINGS RANDOLPH LAKE PROJECT
2 - GEODETIC AND GEOLOGICAL SURVEY
2A - STATE AERONAUTICS COMMISSION
29 - 2 A- 1
29 - 2 A- 2
29 - 2 A- 3
29 - 2 A- 3 A
29 - 2 A- 4
29 - 2 A- 5
29 - 2 A- 6
29 - 2 A- 7
29 - 2 A- 8
29 - 2 A- 9
29 - 2 A- 10
29 - 2 A- 11
29 - 2 A- 11 A
29 - 2 A- 11 B
29 - 2 A- 11 C
29 - 2 A- 11 D
29 - 2 A- 11 E
29 - 2 A- 11 F
29 - 2 A- 12
29 - 2 A- 13
29 - 2 A- 14
29 - 2 A- 15
29 - 2 A- 16
29 - 2 A- 17
29 - 2 A- 18
29 - 2 A- 19
29 - 2 A- 20
29 - 2 A- 21
29 - 2 A- 22
29 - 2 A- 23
29 - 2 A- 24
29 - 2 A- 25
29 - 2 A- 26
29 - 2 A- 27
29 - 2 A- 28
2B - WEATHER MODIFICATION
3 - FIRE PREVENTION AND CONTROL ACT
3A - AUTHORITY OF LOCAL FIRE DEPART
3B - SUPERVISION OF ELECTRICIANS
3C - CERTIFICATION OF ELECTRICAL IN
3D - SUPERVISION OF FIRE PROTECTION
3E - FIREWORKS SAFETY
4 - NOTARIES PUBLIC AND COMMISSIONE
4A - DEPARTMENT OF PUBLIC WELFARE
5 - BUREAU OF NEGRO WELFARE AND STA
5A - STATE ATHLETIC COMMISSION
6 - CIVIL SERVICE SYSTEM
6A - GRIEVANCE PROCEDURE FOR STATE
7 - POET LAUREATE
8 - BLENNERHASSETT ISLAND HISTORICA
9 - INDUSTRIAL AND PUBLICITY COMMIS
10 - STATE PLANNING BOARD
11 - SURPLUS PROPERTY AGENCY
12 - STATE INSURANCE
12A - GOVERNMENTAL TORT CLAIMS AND
12B - WEST VIRGINIA HEALTH CARE PR
12C - PATIENT INJURY COMPENSATION
12D - WEST VIRGINIA PATIENT INJURY
13 - ECONOMIC DEVELOPMENT AGENCY
14 - STATE COMMISSION ON AGING
15 - STATE COMMISSION ON INTELLECT
16 - DEPARTMENT OF PERSONNEL
17 - THE WEST VIRGINIA ARTS AND HU
18 - WEST VIRGINIA STATE RAIL AUTH
19 - SOLICITATION OF CHARITABLE FU
20 - WOMEN'S COMMISSION
21 - PUBLIC DEFENDER SERVICES
22 - STATE LOTTERY ACT
22A - RACETRACK VIDEO LOTTERY
22B - LIMITED VIDEO LOTTERY
22C - WEST VIRGINIA LOTTERY RACETR
23 - WEST VIRGINIA BOUNDARY COMMIS
24 - TECHNOLOGY-RELATED ASSISTANCE
25 - AUTHORIZED GAMING FACILITY
26 - WEST VIRGINIA COURTHOUSE FACI
27 - NATIONAL COAL HERITAGE AREA A
28 - COAL HERITAGE HIGHWAY AUTHORI
29 - VOLUNTEER FOR NONPROFIT YOUTH
30 - EMERGENCY VOLUNTEER HEALTH PR
31 - STATE RESILIENCY AND FLOOD PR
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 2A. STATE AERONAUTICS COMMISSION.
As used in the statutes of West Virginia, unless the context otherwise requires:
(a) "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; and the design, establishment, construction, extension, operation, improvement, repair or maintenance of airports or other air navigation facilities.
(b) "Aircraft" means any contrivance now known, or hereafter invented, used or designed for navigation of or flight in the air.
(c) "Airmen" means any individual who engages, as the person in command, or as pilot, mechanic or member of the crew, in the navigation of the aircraft while under way and any individual who is directly in charge of the inspection, maintenance, overhauling or repair of aircraft engines, propellers or appliances and any individual who serves in the capacity of aircraft dispatcher or air-traffic control-tower operator. It does not include any individual employed outside the United States, or any individual employed by a manufacturer of aircraft, aircraft engines, propellers or appliances to perform duties as inspector or mechanic in connection therewith, or any individual performing inspection or mechanical duties in connection with aircraft owned or operated by him
(d) "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.
(e) "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.
(f) "Airport" means any area of land or water which is used, or intended for use, for the landing and take off 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.
(g) "Airport hazard" means any structure, object of natural growth or use of land which obstructs the air space required for the flight of aircraft in landing or taking off at any airport or is otherwise hazardous to such landing or taking off.
(h) "Commission" means the West Virginia state aeronautics commission.
(i) "Director" means the director of aeronautics of this state.
(j) "Municipality" means any county, city, town, village or other political subdivision of this state. "Municipal" means pertaining to a municipality as herein defined.
(k) "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.
(l) "Person" means any individual, firm, copartnership, corporation, company, association, joint stock association or body politic and includes any trustee, receiver, assignee or other similar representative thereof.
(m) The singular of any of the above defined terms shall include the plural and plural the singular.
There is hereby created an aeronautics commission, to be known as "The West Virginia State Aeronautics Commission", to consist of five members to be appointed by the Governor, by and with the advice and consent of the Senate. One of such members shall be the secretary of transportation ex officio, whose term as such member shall continue for the period that he or she holds the office of secretary of transportation. The other four members of the commission shall be appointed by the Governor, each to serve a term beginning the July 1, 1947, 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 (other than the secretary of transportation) 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 article, 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 shall be appointed by the Governor as provided by this section shall be selected with due regard to their fitness by reason of their aeronautical knowledge and practical experience in the field of aeronautics. 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.
No member shall 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.
The commission shall assume, carry on and succeed to all the duties, rights, powers, obligations and liabilities heretofore belonging to, exercised by, or assumed by the state board of aeronautics, pursuant to statutory authority heretofore existing and as changed or modified by the provisions of this article. It 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 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.
The commission shall keep on file with the Secretary of State, and at the principal office of the commission, a copy of all 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 procedures having general effect. Copies of any such orders or rules shall be delivered to any person interested, free of charge, upon request. The publication and distribution of any such order or rule as provided herein shall be sufficient notice to the public of the provisions, requirements and effect thereof.
Each rule of the commission shall be promulgated as a legislative rule pursuant to the provisions of chapter twenty-nine-a of this code.
Except where otherwise prohibited, the commission is authorized to permit the state Board of Investments to invest, as provided by this code, any funds received by the commission pursuant to the provisions of this code.
Acts, 2017 Reg. Sess., Ch. 202.
The commission shall make, and may from time to time amend, rules for the administration of the powers granted to it by this article as are not inconsistent therewith and as the commission may deem expedient. The commission shall organize by electing from among its members a chairman who shall serve as such for a period of two years. Such chairman shall have the power 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 duly authorized by a majority of its members.
The commission shall determine the number, date and place of its regular meetings, but at least one such 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, hearings or proceedings at any other place designated by it.
The commission shall report in writing to the Governor on or before the thirty-first day of August 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 as it may deem 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.
An office shall be established and maintained by the commission in the city of Charleston. In addition, the commission may establish and maintain such other offices within the state as it may deem necessary and expedient.
§29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; administrative and other assistants.
A director of aeronautics shall be appointed by the commission, 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, by aeronautical education and by knowledge of and recent practical experience in aeronautics, for the efficient dispatch of the powers and duties vested in and imposed upon him by this article. The director shall devote his or her time to the duties of his or her office as required and prescribed by this article and shall not have any pecuniary interest in, or any stock in, or bonds of, any civil aeronautical enterprise. The director shall receive such compensation as the commission may determine, which said compensation shall, however, conform in general to the compensation received by persons occupying positions of similar importance and responsibility with other agencies of this state. 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 other laws of the state relative to aeronautics. The director shall attend, but not vote, at all meetings of the commission. The director shall act as secretary of the commission and shall be 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 shall, together with the chairman of the commission, execute all contracts entered into by the commission which are legally authorized and for which funds are provided in any appropriations act. 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. Such delegated powers and duties may be exercised by such director in the name of the commission. The commission may also employ such administrative, engineering, technical and clerical assistance as may be required. The director and such other assistants may, under the supervision of the commission, insofar as is reasonably possible, make available the engineering and other technical services of the commission, without charge to any municipality, and with or without charge to any other person desiring them, in connection with the construction, maintenance or operation, or proposed construction, maintenance or operation of any airport.
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 such 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. Such financial assistance may be furnished in connection with federal or other financial aid for the same purpose.
(a) The commission is authorized to cooperate with the government of the United States, and any agency or department thereof, in the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation facilities in this state and is authorized to accept federal aid either outright or by way of matching the same, in whole or in part, as may be required, and when funds for matching are available to the commission, and to comply with the provisions of the laws of the United States and any regulations made thereunder for the expenditure of federal moneys upon such airports and other air navigation facilities.
(b) The commission is authorized to accept, receive and receipt for federal moneys and other moneys, either public or private, for and in behalf of this state, or any municipality thereof, for the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation facilities, whether such work is to be done by the state or by such municipality, or jointly, aided by grants of aid from the United States, 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, and it 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, receiving and receipting for such moneys in 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; and any such 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. Such moneys as are paid over by the United States government shall be retained by the state or paid over 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 the same were made available and shall be expended in accordance with federal laws and regulations and with the provisions of 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 same, in whole or in part, as may be required, and to comply with the provisions of the laws of the United States and any regulations made thereunder for the expenditure of federal moneys upon such airports and other navigation facilities.
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 such 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, however, 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 such municipality. The commission may by sale, lease, or otherwise, dispose of any such property, airport, air navigation facility, or portion thereof or interest therein. Such disposal by lease shall be made pursuant to the terms of chapter eight, article eleven, section six of the Code of West Virginia. Such 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 may deem in the best interest of the state.
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.
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.
In the condemnation of property authorized by this section, the commission shall proceed in the name of the state in the manner provided by chapter fifty-four, Code of West Virginia, 1931.
The commission may designate, design, and establish, expand, or modify a state airways system which will best serve the interest of the state. It may chart such airways system and arrange for publication and distribution of such maps, charts, notices and bulletins relating to such airways as may be required in the public interest. The system shall be supplementary to and coordinated in design and operation with the federal airways system. It may include all types of air navigation facilities, whether publicly or privately owned, provided that such facilities conform to federal safety standards.
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 is under the influence of alcohol; or
(B) He is under the influence of any controlled substance; or
(C) He is under the influence of any other drug; or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He 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 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 is under the influence of alcohol; or
(B) He is under the influence of any controlled substance; or
(C) He is under the influence of any other drug; or
(D) He is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He 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 such conviction is had, transmit to the commission a certified abstract of the judgment of conviction. The commission 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.
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.
(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.
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.
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.
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.
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.
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 has an appropriate effective airman certificate, permit, rating or license issued by the United States authorizing him to engage in the particular class of aeronautics in which he 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 personal possession when he is operating within this state and shall be presented for inspection upon the demand of any peace officer or any other officer of the state or of a municipality or member, official, or employee of the commission authorized under this article to enforce the aeronautics law of this state, 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 peace officer, or any other officer of the state or of a municipality or member, official or employee of the commission authorized under this article to enforce the aeronautics laws of this state, 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.
Acts, 1995 Reg. Sess., Ch. 3.
Acts, 1995 Reg. Sess., Ch. 3.
The commission, any member thereof, the director or any officer or employee of the commission designated by it, shall have the power to hold investigations, inquiries and hearings concerning matters covered by the provisions of this article and the rules, regulations and orders of the commission, and concerning accidents in aeronautics within this state. Hearings shall be open to the public and, except as provided in section twenty-two, shall be held upon such call or notice as the commission shall deem advisable. Each member of the commission, the director and every officer or employee of the commission designated by it to hold any inquiry, investigation or hearing shall have the power to administer oaths and affirmations, certify to all official acts, issue subpoenas, and order the attendance and testimony of witnesses and the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the commission or its authorized representative may invoke the aid of any circuit court of this state. The court shall thereupon order such person to comply with the requirements of the subpoena order or to give evidence touching the matter in question. Failure to obey the order of the court may be punished by the court as a contempt thereof. A claim that any such testimony or evidence may tend to incriminate the person giving the same shall not excuse witness from testifying, but such witness shall not be prosecuted for any offense concerning which he is compelled hereunder to testify.
Subject to the foregoing provision, the commission may in its discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigations and hearings.
All fees or other moneys collected by said commission under the provisions of this article shall be paid into the state Treasury in the manner provided in article two, chapter twelve of the Code of West Virginia, and shall be carried in a separate account and be used and expended only for the purpose of carrying out the provisions of this article. The fees or other moneys so paid into the state Treasury shall constitute and be treated as an excepted fund, and all of the provisions of section two of said article two, chapter twelve of the said code, applicable to the funds therein excepted from the general provisions for the deposit and payment of state funds, shall be applicable to the fund derived from collections made pursuant to the provisions of this article.
The commission is authorized to confer with or to hold joint hearings with any agency of this state or the United States in connection with any matter arising under this article, or relating to the sound development of aeronautics.
The commission is authorized to avail itself of the cooperation, services, records and facilities of the agencies of the United States as fully as may be practicable in the administration and enforcement of this article. The commission shall furnish to the agencies of the United States its cooperation, services, records and facilities, insofar as may be practicable.
The commission shall report to the appropriate agency of the United States all accidents in aeronautics in this state of which it is informed, and shall insofar as is practicable preserve, protect and prevent the removal of the component parts of any aircraft involved in an accident being investigated by it for such reasonable time as may be necessary to give the federal agency adequate opportunity to institute an investigation.
It shall be the duty of the commission, its members, the director, officers and such employees of the commission as may be designated by it, and every state and municipal officer charged with the enforcement of state and municipal laws, to enforce and assist in the enforcement of this article and of all rules and orders issued pursuant thereto and of all other laws of this state relating to aeronautics; and in that connection each of the aforesaid persons is 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.
The commission is authorized in the name of the state to enforce the provisions of this article and the rules and orders issued pursuant thereto by injunction or other legal process in the courts of this state.
In carrying out the provisions of this article the commission may use the facilities and services of other agencies of the state and of the municipalities of the state to the utmost extent possible, and such agencies and municipalities are authorized and directed to make available their facilities and services.
Every order of the commission requiring performance of certain acts or compliance with certain requirements and any denial or revocation of an approval shall set forth the reasons and shall state the acts to be done or requirements to be met before approval by the commission will be given or the approval granted or restored or the order modified or changed. Orders issued by the commission pursuant to the provisions of this article shall be served upon the persons affected either by certified mail or in the manner provided by section one, article two, chapter fifty-six of this code. In every case where notice and opportunity for hearing are required under the provisions of this article, the order of the commission shall, on not less than ten days' notice, specify a time when and place where the person affected may be heard, or the time within which he may request a hearing, and such order shall become effective upon the expiration of the time for exercising such opportunity for hearing unless a hearing is held or requested within the time provided, in which case the order shall be suspended until the commission shall affirm, disaffirm or modify such order after hearing held or default by the person affected.
Any person aggrieved by any final order of the commission shall have the right to a judicial review of the action of the commission, upon certiorari by the circuit court of Kanawha county, West Virginia. The granting of such review, upon certiorari, shall be within the sound discretion of the judge of the said circuit court. A petition for such review must be filed with the said court, or with the judge thereof in vacation, within a period of thirty days from the date of entry of the final order complained of. An appeal from any final order entered by the said circuit court upon granting such writ of certiorari may be had by application to the Supreme Court of Appeals of West Virginia for a writ of error and supersedeas. Such application to the Supreme Court of Appeals shall be made within thirty days of the entry of the order appealed from by the said circuit court: Provided, however, That when either the circuit court or the Supreme Court of Appeals has taken jurisdiction of any such case, such court may, in its sound discretion, refuse a stay of execution or supersedeas to the order of the commission or any portion thereof during the time that the case is pending before the said court, if the court is of the opinion that the order of the commission or a part of such order is reasonable and has been issued for the protection of the public safety.
Any person violating any of the provisions of this article, for which the penalty is not otherwise provided, or any of the rules, regulations or orders issued pursuant thereto, shall be punishable by a fine of not more than $500 or by imprisonment for not more than thirty days, or both.
For any violation of sections eleven and twelve of this article, in addition to the penalties provided by the said sections, or as a condition to the suspension of a sentence which may be imposed pursuant thereto, the court in its discretion may prohibit the violator from operating aircraft within the state for such period as it may determine, but not to exceed one year. Violation of the duly imposed prohibition of the court may be treated as a separate offense under this section or as a contempt of court. In no event shall this section be construed as a warrant for the court or any other agency or person to take away, impound, hold or mark any federal airman or aircraft certificate, permit, rating or license.
The commission is authorized to report to the appropriate federal agencies and agencies of other states all proceedings instituted charging violations of sections eleven, twelve and fourteen of this article and all penalties, of which it has knowledge, imposed upon airmen or the owners or operators of aircraft for violations of the law of this state relating to aeronautics or for violations of the rules, regulations or orders of the commission. The commission is authorized to receive reports of penalties and other data from agencies of the federal government and other states and, when necessary, to enter into agreements with federal agencies and the agencies of other states governing the delivery, receipt, exchange and use of reports and data. The commission may make the reports and data of the federal agencies, the agencies of other states, and the courts of this state available with or without request therefor, to any and all courts of this state, and to any officer of the state or of a municipality authorized to enforce the aeronautics laws of this state.
If any provision of this article or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the provisions or applications of this article which can be given effect without the invalid provisions or application, and to this end the provisions of this article are declared to be severable.
All acts or parts of acts inconsistent with the provisions of this article are hereby repealed.
This article may be cited as the "State Aeronautics Commission Act."