H. B. 4492
(By Delegates Webster, Proudfoot, Palumbo,
Mahan, Hrutkay, Higgins, Tucker, Yost,
Guthrie, Sumner and White)
[Introduced February 11, 2008; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §17C-5-4 and §17C-5-7 of the Code of
West Virginia, 1931, as amended, all relating to requiring
drivers to submit to evidentiary breath tests, blood or urine
tests; setting forth requirements for blood or urine tests;
authorizing issuance of warrants to perform chemical analysis
of the blood or urine of persons charged with driving under
the influence; and penalties.
Be it enacted by the Legislature of West Virginia:
That §17C-5-4 and §17C-5-7 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied consent to test; administration at direction of
law-enforcement officer; designation of type of test;
definition of law-enforcement officer; search
warrants.
(a) Any person who drives a motor vehicle in this state is
deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis,
an evidentiary
breath test and a
secondary chemical test of either his or her
blood
breath or urine for the purposes of determining
whether the
alcoholic content of his or her blood content of his or her blood
includes alcohol, a controlled substance, other drug, or any
combination thereof.
(b) A preliminary breath analysis may be administered in
accordance with the provisions of section five of this article
whenever a law-enforcement officer has reasonable cause to believe
a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which
has the same elements as an offense described in section two of
this article.
(c)
A secondary An evidentiary test of
blood, breath
or urine
is incidental to a lawful arrest and is to be administered at the
direction of the arresting law-enforcement officer having
reasonable grounds to believe the person has committed an offense
prohibited by section two of this article or by an ordinance of a
municipality of this state which has the same elements as an
offense described in section two of this article.
(d)
If the person arrested is unable or unwilling to take or
to complete, or to cooperate, in the completing of an evidentiary
breath test because of choice, injuries, illness, disease, physical
infirmity, or physical incapacity, or if such person is receiving medical treatment at a location where an evidentiary breath test is
not available, the test shall be of the person's blood or urine.
The law-enforcement agency that employs the law-enforcement officer
shall designate which type of secondary test is to be administered:
Provided, That if the test designated is a blood test and the
person arrested refuses to submit to the blood test, then the
law-enforcement officer making the arrest shall designate either a
breath or urine test to be administered. Notwithstanding the
provisions of section seven of this article, the refusal to submit
to a blood test only may not result in the revocation of the
arrested person's license to operate a motor vehicle in this state:
(e) Any person
to whom a preliminary breath test is
administered who is
then arrested shall be given a written
statement advising him or her that his or her refusal to submit to
the
secondary chemical test pursuant to subsection (d) of this
section, evidentiary breath test, blood test or urine test will
result in the revocation of his or her license to operate a motor
vehicle in this state for a period of at least one year and up to
life
which sanction will not restrict nor affect in any way the
ability of a law-enforcement officer to secure a warrant in
accordance with subsection (i) herein.
(f) Any law-enforcement officer who has been properly trained
in the administration of
any secondary chemical test the
evidentiary breath test authorized by this article, including, but not limited to, certification by the Division of Health in the
operation of any equipment required for the collection and analysis
of a breath sample, may conduct the test at any location in the
county wherein the arrest is made
: Provided, That the
law-enforcement officer may conduct the test at the nearest
available properly functioning
secondary chemical evidentiary
breath testing device located outside the county in which the
arrest was made, if: (i) There is no properly functioning
secondary chemical evidentiary breath testing device located within
the county the arrest was made; or (ii) there is no magistrate
available within the county the arrest was made for the arraignment
of the person arrested. A law-enforcement officer who is directing
that
a secondary chemical an evidentiary breath test be conducted
has the authority to transport the person arrested to where the
secondary chemical evidentiary breath testing device is located.
(g) If the arresting officer lacks proper training in the
administration of
a secondary chemical an evidentiary breath test,
then any other law-enforcement officer who has received training in
the administration of the
secondary chemical evidentiary breath
test to be administered may, upon the request of the arresting
law-enforcement officer and in his or her presence, conduct the
secondary evidentiary breath test. The results of
a test an
evidentiary breath test conducted pursuant to this subsection may
be used in evidence to the same extent and in the same manner as if the test had been conducted by the arresting law-enforcement
officer.
(h) Only the person actually administering or conducting
a an
evidentiary breath test conducted pursuant to this article is
competent to testify as to the results and the veracity of the
test.
(i) After the administration of an evidentiary breath test any
law-enforcement officer who has probable cause to believe that the
person arrested is under the influence of any controlled substance,
other drug, or any combination of alcohol, a controlled substance
and/or other drug may request the person arrested to submit to a
test of his or her blood or urine: Provided, That if the arrested
person then refuses to, or is unable to submit to a test of his or
her blood or urine the law-enforcement officer making the arrest
may, in accordance with established law and procedure, seek the
issuance of a warrant to extract that person's blood or urine, to
test for the presence and content of alcohol, controlled
substances, other drugs, or any combination thereof. A court of
competent jurisdiction, pursuant to established law and procedure,
is authorized to issue a warrant for extraction of blood or urine
to test for the presence and content of alcohol, controlled
substances, other drugs, or any combination thereof.
(i)(j) For the purpose of this article, the term
"law-enforcement officer" or "police officer" means: (1) Any member of the West Virginia State Police; (2) any sheriff and any
deputy sheriff of any county; (3) any member of a police department
in any municipality as defined in section two, article one, chapter
eight of this code; (4) any conservation officer of the Division of
Natural Resources; and (5) any special police officer appointed by
the Governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the
course of instruction at a law-enforcement training academy as
provided
for under the provisions of section nine, article
twenty-nine, chapter thirty of this code.
(j)(k) A law-enforcement officer who has reasonable cause to
believe that person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to
the operation of a motorboat, jet ski or other motorized vessel,
shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and the
secondary chemical test of the accused person's blood, breath or
urine for the purpose of determining alcohol content of his or her
blood
(l) Nothing in this section, or any other section in article
five, chapter seventeen-c, shall be construed to restrict searches
or seizures of blood, urine or both, to test for the presence and
content of alcohol, controlled substances, other drugs, or any
combination thereof when that search and seizure is conducted under a lawfully issued warrant.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to
any secondary chemical test, the
tests shall not be given: Provided, either the evidentiary breath
test, or a test of the arrested person's blood or urine, That prior
to then after such refusal, the person
is shall be given a written
statement advising him
or her that his
or her refusal to submit to
the
secondary test finally designated evidentiary breath test,
blood test or urine test, will result in the revocation of his
or
her license to operate a motor vehicle in this state for a period
of at least one year and up to life. If a person initially refuses
to submit to the
designated secondary chemical test evidentiary
breath test, blood test, or urine test, after being informed in
writing of the consequences of such refusal, he
or she shall be
informed orally and in writing that after fifteen minutes said
refusal shall be deemed to be final and the arresting officer shall
after said period of time expires have no further duty to provide
the person with an opportunity to take the
secondary test either
the evidentiary breath test, or a test of the arrested person's
blood or urine. The officer shall within forty-eight hours of such
refusal, sign and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He
or she had
reasonable grounds to believe such person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (2) such person was lawfully placed
under arrest for an offense relating to driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs; (3) such person refused to submit to the
secondary chemical test finally designated in the manner provided
in section four of this article evidentiary breath test, blood
test, or urine test; and (4) such person was given a written
statement advising him
or her that his
or her license to operate a
motor vehicle in this state would be revoked for a period of at
least one year and up to life if he
or she refused to submit to the
secondary test finally designated in the manner provided in section
four of this article. The signing of the statement required to be
signed by this section shall constitute an oath or affirmation by
the person signing such statement that the statements contained
therein are true and that any copy filed is a true copy. Such
statement shall contain upon its face a warning to the officer
signing that to willfully sign a statement containing false
information concerning any matter or thing, material, or not
material, is false swearing and is a misdemeanor. Upon receiving
the statement the commissioner shall make and enter an order
revoking such person's license to operate a motor vehicle in this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of one year. If the commissioner has previously
revoked the person's license under the provisions of this section,
the commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking such
person's license to operate a motor vehicle in this state for a
period of ten years:
Provided, That the license may be reissued in
five years in accordance with the provisions of section three,
article five-a of this chapter. If the commissioner has previously
revoked the person's license more than once under the provisions of
this section, the commissioner shall, for the refusal to submit to
the designated secondary chemical test, make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of life:
Provided, That the license may be
reissued in ten years in accordance with the provisions of section
three, article five-a of this chapter. A copy of each such order
shall be forwarded to such person by registered or certified mail,
return receipt requested, and shall contain the reasons for the
revocation and shall specify the revocation period imposed pursuant
to this section. No such revocation shall become effective until
ten days after receipt of the copy of such order. Any person who is unconscious or who is otherwise in a condition rendering him
or
her incapable of refusal, shall be deemed not to have withdrawn his
or her consent for a test of his
or her blood, breath or urine as
provided in section four of this article and the test may be
administered although such person is not informed that his
or her
failure to submit to the test will result in the revocation of his
or her license to operate a motor vehicle in this state for the
period provided
for in this section.
A revocation hereunder shall run concurrently with the period
of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which
gave rise to the arrest for driving a motor vehicle while under the
influence of alcohol, controlled substances or drugs and the
subsequent refusal to undergo the test finally designated in
accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two of this
article, for conduct which occurred on or after
the tenth day of June,
tenth one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter, for conduct which occurred on or
after
the tenth day of June,
tenth one thousand nine hundred
eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
(d) Notwithstanding any provision in this section, or any
other section in article five, chapter seventeen-c, the
law-enforcement officer making the arrest may seek the issuance of
a warrant to extract blood for analysis and a court of competent
jurisdiction is authorized to issue a warrant for extraction of
blood if the person arrested refuses or is unable to submit to the
evidentiary breath test, blood test, or urine test.
NOTE: The purpose of this bill is to require drivers to submit
to evidentiary breath tests and blood or urine; set forth
requirements for blood or urine tests; authorize issuance of
warrants to perform chemical analysis of the blood or urine of
persons charged with driving under the influence; and penalties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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