Senate Bill No. 417
(By Senators Unger, McKenzie and Foster)
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[Introduced February 1, 2007; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §11-16-19 of the Code of West Virginia,
1931, as amended; and to amend and reenact §60-6-9 of said
code, all relating to prohibiting open nonintoxicating beer
and alcoholic beverage containers in passenger areas of motor
vehicles; providing a penalty for violation; and making the
state's laws applying to the use and possession of beer and
alcoholic beverages in motor vehicles conform to federal law.
Be it enacted by the Legislature of West Virginia:
That §11-16-19 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §60-6-9 of said code be amended
and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 16. NONINTOXICATING BEER.
§11-16-19. Unlawful acts of persons; criminal penalties.
(a) (1) Any person eighteen or over but under the age of
twenty-one years who purchases, consumes, sells, possesses or
serves nonintoxicating beer is guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed five
hundred dollars or shall be incarcerated confined in jail for a
period not to exceed seventy-two hours, or both fined and
imprisoned or, in lieu of such fine and incarceration, may, for the
first offense, be placed on probation for a period not to exceed
one year. Any person under the age of eighteen years who
purchases, consumes, sells, possesses or serves nonintoxicating
beer is guilty of a status offense as that term is defined in
section four, article one, chapter forty-nine of this code and,
upon adjudication therefor, shall be referred to the Department of
Health and Human Resources for services, as provided in section
eleven, article five of said chapter.
(2) Nothing in this article, nor any rule or regulation of the
commissioner, shall may prevent or be deemed considered to prohibit
any person who is at least eighteen years of age from serving in
the lawful employment of any licensee, which may include the sale
or delivery of nonintoxicating beer as defined in this article.
Further, nothing in this article, nor any rule or regulation of the
commissioner, shall may prevent or be deemed considered to prohibit
any person who is less than eighteen but at least sixteen years of
age from being employed by a licensee whose principal business is
the sale of food or consumer goods or the providing of recreational
activities, including, but not limited to, nationally franchised
fast food outlets, family-oriented restaurants, bowling alleys,
drug stores, discount stores, grocery stores and convenience
stores: Provided, That such person shall may not sell or deliver nonintoxicating beer.
(3) Nothing in this subsection shall prohibit prohibits a
person who is at least eighteen years of age from purchasing or
possessing nonintoxicating beer when he or she is acting upon the
request of or under the direction and control of any member of a
state, federal or local law-enforcement agency or the West Virginia
Alcohol Beverage Administration while the agency is conducting an
investigation or other activity relating to the enforcement of the
alcohol beverage control statutes and the rules of the
commissioner.
(b) Any person under the age of twenty-one years who, for the
purpose of purchasing nonintoxicating beer, misrepresents his or
her age or who for such that purpose presents or offers any written
evidence of age which is false, fraudulent or not actually his or
her own or who illegally attempts to purchase nonintoxicating beer
is guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed fifty dollars or shall be imprisoned
confined in jail for a period not to exceed seventy-two hours, or
both such fine fined and imprisonment imprisoned or, in lieu of
such fine being fined and imprisonment imprisoned, may, for the
first offense, be placed on probation for a period not exceeding
one year.
(c) Any person who shall knowingly buy buys for, give gives to
or furnish furnishes nonintoxicating beer to anyone under the age
of twenty-one to whom they are not related by blood or marriage is
guilty of a misdemeanor and, upon conviction thereof, shall be fined an amount not to exceed one hundred dollars or shall be
imprisoned confined in jail for a period not to exceed ten days, or
both such fine fined and imprisonment imprisoned.
(d) (1) Any person who at any one time transports into the
state for their personal use, and not for resale, more than six and
seventy-five hundredths gallons of nonintoxicating beer, upon which
the West Virginia barrel tax has not been imposed, shall be is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined an amount not to exceed one hundred dollars and have all the
untaxed nonintoxicating beer in their possession at the time of the
arrest confiscated, or imprisoned confined for ten days in jail, or
both fined and imprisoned.
(e) It is unlawful for any person to drink any nonintoxicating
beer in a motor vehicle or to keep in the passenger area of a motor
vehicle located anywhere on a public road or highway or the
right-of-way of any public road or highway, any bottle, can or
other receptacle that contains any amount of any nonintoxicating
beer, that is open or has a broken seal, or the contents of which
are partially removed, unless the container is kept in the trunk of
the vehicle, or behind the last upright seat of some area of the
vehicle not normally occupied by passengers if the vehicle is not
equipped with a trunk. This prohibition does not apply to the
passenger area of a motor vehicle designed or used primarily for
the transportation of persons for compensation such as buses, taxis
and limousines or to the living quarters of a house coach or house
trailer. For the purposes of this subsection the following definitions apply:
(1) "Passenger area of a vehicle" means the area designed to
seat the driver and passengers while the motor vehicle is in
operation and any area that is readily accessible to the driver or
a passenger while in their seating position, including the glove
compartment; and
(2) "Public road or highway or right-of-way of a public road
or highway" means the entire width between and immediately adjacent
to the boundary lines of every way publicly maintained when any
part is open to the use of the public for vehicular travel.
Any person who violates the provisions of this subsection is
guilty of a misdemeanor and, upon his or her first conviction,
shall be fined not less than one hundred dollars nor more than five
hundred dollars; and upon conviction of second or subsequent
offense, he or she is guilty of a felony and shall be imprisoned in
a state correctional facility for a period of not less than one
year nor more than three years.
(2) (f) If the Congress of the United States repeals the
mandate established by the Surface Transportation Assistance Act of
1982 relating to national uniform drinking age of twenty-one as
found in section six of Public Law 98-363, or a court of competent
jurisdiction declares the provision to be unconstitutional or
otherwise invalid, it is the intent of the Legislature that the
provisions contained in this section and section eighteen of this
article which prohibit the sale, furnishing, giving, purchase or
ownership of nonintoxicating beer to or by a person who is less than twenty-one years of age shall be null and void and the
provisions therein shall thereafter remain in effect and apply to
the sale, furnishing, giving, purchase or ownership of
nonintoxicating beer to or by a person who is less than nineteen
years of age.
CHAPTER 60. STATE CONTROL OF ALCOHOLIC LIQUORS.
ARTICLE 6. MISCELLANEOUS PROVISIONS.
§60-6-9. Intoxication or drinking in public places; illegal
possession of alcoholic liquor; arrests by sheriffs
or their deputies for violation in their presence;
penalties.
(a) A person
shall may not:
(1) Appear in a public place in an intoxicated condition;
(2) Drink alcoholic liquor in a public place;
(3) Drink alcoholic liquor in a motor vehicle on any highway,
street, alley or in a public garage;
(4)
Keep in the passenger area of a motor vehicle located
anywhere on a public road or highway or the right-of-way of any
public road or highway, any bottle, can or other receptacle that
contains any amount of any alcoholic beverage, and that is open or
has a broken seal, or the contents of which are partially removed
unless the container is kept in the trunk of the vehicle, or behind
the last upright seat of some other area of the vehicle not
normally occupied by passengers if the vehicle is not equipped with
a trunk. This prohibition does not apply to the passenger area of
a motor vehicle designed or used primarily for the transportation of persons for compensation such as buses, taxis and limousines or
to the living quarters of a house coach or house trailer. For the
purposes of this subsection the following definitions apply:
(A) "Passenger area of a vehicle" means the area designed to
seat the driver and passengers while the motor vehicle is in
operation and any area that is readily accessible to the driver or
a passenger while in their seating position, including the glove
compartment; and
(B) "Public road or highway or right-of-way of a public road
or highway" means the entire width between and immediately adjacent
to the boundary lines of every way publicly maintained when any
part is open to the use of the public for vehicular travel.
(4) (5) Tender a drink of alcoholic liquor to another person
in a public place;
(5) (6) Possess alcoholic liquor in the amount in excess of
ten gallons, in containers not bearing stamps or seals of the
commissioner, without having first obtained written authority from
the said commissioner therefor; or
(6) (7) Possess any alcoholic liquor which was manufactured or
acquired in violation of the provisions of this chapter.
(b) Any law-enforcement officer may arrest without a warrant
and take the following actions against a person who, in his or her
presence, violates subdivision (1)
of subsection (a) of this
section: (1) If there is some nonintoxicated person who will
accept responsibility for the intoxicated person, the officer may
issue the intoxicated person a citation specifying a date for appearance before a judicial officer and release him or her to the
custody of the individual accepting responsibility:
Provided, That
the issuance of a citation shall be used whenever feasible; (2) if
it does not impose an undue burden on the officer, he or she may,
after issuance of such a citation, transport the individual to the
individual's present residence or arrange for such transportation;
(3) if the individual is incapacitated or the alternatives provided
in subdivisions (1) and (2) of this subsection are not possible,
the officer shall transport or arrange for transportation to the
appropriate judicial officer as defined by section seventeen,
article eleven, chapter twenty-seven of this code; or (4) if the
individual is incapacitated and, in the law-enforcement officer's
judgment, is in need of acute medical attention, that officer shall
arrange for transportation by ambulance or otherwise to a hospital
emergency room. The officer shall accompany the individual until
he or she is discharged from the emergency room or admitted to the
hospital. If the individual is released from the emergency room,
the officer may proceed as described in subdivisions (1), (2) and
(3) of this subsection. If the individual is admitted to the
hospital, the officer shall issue a citation to the individual
specifying a date for appearance before a judicial officer.
(c) Upon presentment before the proper judicial officer, the
law-enforcement officer shall serve as the chief complaining
witness. The judicial officer must make a finding that there is
probative evidence that the individual may be guilty of the charge
of public intoxication. If such evidence is not presented, the charge shall be dismissed and the individual released. If
sufficient evidence is presented, the judicial officer shall issue
a warrant and establish bail or issue a summons to the individual.
Once a warrant or summons has been issued, the following actions
may be taken: (1) If the individual is no longer incapacitated, he
or she may be released; (2) if the individual is still
incapacitated but a nonintoxicated person is available to accept
responsibility for him or her, he or she may be released to the
responsible person; or (3) if the individual is still incapacitated
and no responsible person is available, the judicial officer shall
proceed under the provisions of article five or six-a, chapter
twenty-seven of this code.
(d) Any law-enforcement officer is hereby authorized and
empowered to arrest and hold in custody, without a warrant, until
complaint may be made before a judicial officer and a warrant or
summons issued, any person who in the presence of the
law-enforcement officer violates any one or more of subdivisions
(1) through (6), subsection (a) of this section:
Provided, That
the law-enforcement officer may use reasonable force to prevent
harm to himself or herself, the individual arrested or others in
carrying out the provisions of this section.
(e) Any person who violates subdivision (1), subsection (a) of
this section
shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be sentenced by a judicial officer in
accordance with the following options: (1) Upon first offense, a
fine of not less than five dollars nor more than one hundred dollars. If the individual, prior to conviction, agrees to
voluntarily attend an alcohol education program of not more than
six hours duration at the nearest community mental health -- mental
retardation center, the judicial officer may delay sentencing until
the program is completed and upon completion may dismiss the
charges; (2) upon conviction for a second offense, a fine of not
less than five dollars nor more than one hundred dollars and not
more than sixty days in
the county or regional jail or completion
of not less than five hours of alcoholism counseling at the nearest
community mental health -- mental retardation center; (3) upon
third and subsequent convictions, a fine of not less than five
dollars nor more than one hundred dollars and not less than five
nor more than sixty days in
county or regional jail or a fine of
not less than five dollars nor more than one hundred dollars and
completion of not less than five hours of alcoholism counseling at
the nearest community mental health -- mental retardation center:
Provided, That three convictions for public intoxication within the
preceding six months shall be considered evidence of alcoholism:
Provided, however, That for the educational counseling programs
described in this subsection the community mental health -- mental
retardation center may charge each participant its usual and
customary fee and shall certify in writing to the referring
judicial officer the completion or failure to complete the
prescribed program for each individual.
(f) A person charged with a violation of subdivision (1),
subsection (a) of this section who is an alcoholic shall be found not guilty by reason of addiction and proper disposition made
pursuant to articles five and six-a, chapter twenty-seven of this
code.
(g) Any person who violates subdivision (2), subsection (a) of
this section
shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five nor more than
one hundred dollars; and upon a second or subsequent conviction
thereof, shall be fined not less than five nor more than one
hundred dollars, or confined in
the county or regional jail not
more than sixty days, or both.
(h) Any person who violates subdivision (3), subsection (a) of
this section
shall be is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than five nor more than
one hundred dollars, or confined in
the county or regional jail not
more than sixty days, or both.
(i) Any person who violates subdivision (4) or (5), subsection
(a) of this section
shall be is guilty of a misdemeanor and, upon
his or her first conviction, shall be fined not less than one
hundred dollars nor more than five hundred dollars; and upon
conviction of second or subsequent offense, he or she
shall be is
guilty of a felony and shall be confined in
the penitentiary of
this a state
correctional facility for a period of not less than
one year nor more than three years.
NOTE: The purpose of this bill is to prohibit open containers
of nonintoxicating beer and alcoholic beverages in the passenger
areas of motor vehicles on the public roads of the state. A
misdemeanor penalty is provided for a first offense violation and a felony penalty is provided for second or subsequent violations.
The bill is intended to conform the state's laws applying to the
use and possession of beer and alcoholic beverages in motor
vehicles with federal law.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.