West Virginia Legislature
2016 Regular Session
Introduced
House Bill 2380
2015 Carryover
(By Delegates Folk, Ihle, Faircloth, Frich, Householder, Shott, Kurcaba, Weld, Sobonya and J. Nelson)
[Introduced January 13, 2016; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §17C‑5‑4 of the Code of West Virginia, 1931, as amended, relating to requiring the issuance of a search warrant before a driver of a motor vehicle can be made to submit to a secondary blood test to determine the concentration of alcohol or controlled substance in his or her blood.
Be it enacted by the Legislature of West Virginia:
That §17C‑5‑4 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C‑5‑4. Implied consent to test; search warrant; administration at direction of law‑enforcement officer; designation of type of test; definition of law‑enforcement officer.
(a) The Legislature finds that:
(1) The Fourth Amendment to the United States Constitution requires law enforcement to have probable cause and a valid search warrant before searching an individual;
(2) In Missouri v. McNeely, 133 S.Ct. 1552 (2013), the Supreme Court of the United States noted that a compelled test of an individual's blood is "an invasion of bodily integrity" that "implicates an individual's most personal and deep-rooted expectations of privacy."
(3) In Missouri v. McNeely, 133 S.Ct. 1552 (2013), the Supreme Court of the United States held that in the absence of exigent circumstances, a compelled blood test without a search warrant violates an individual's Fourth Amendment right against unreasonable searches and seizures.
(a) (b) Any person who drives a motor
vehicle in this state is considered to have given his or her consent by the
operation of the motor vehicle to a preliminary breath analysis and a
secondary chemical test of either his or her blood or breath and,
upon issuance of a search warrant, a secondary chemical test of the driver=s blood to determine
the alcohol concentration in his or her blood, or the concentration in the
person=s body of a
controlled substance, drug, or any combination thereof.
(b) (c) 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) (d) A secondary test of blood or breath is
incidental to a lawful arrest and is to may be administered after
a lawful arrest at the direction of the arresting law‑enforcement
officer having a search warrant and probable cause to believe the person
arrested 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.
(e) Notwithstanding any provision of this code, a warrant is required for any nonconsensual test of a person's blood, and the dissipation of alcohol in a person's blood does not constitute an exigent circumstance, justifying an exception to the warrant requirement for nonconsenual blood testing in a criminal investigation.
(d) (f) The law‑enforcement agency
that employs the arresting law‑enforcement officer shall designate the
secondary tests 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) (g) Any person to whom a preliminary
breath test is administered who is 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 will not result in the
revocation of his or her license to operate a motor vehicle in this state.
for a period of at least forty‑five days and up to life.
(f) (h) Any law‑enforcement officer
who has been properly trained in the administration of any secondary chemical
test authorized by this article, including, but not limited to, certification
by the Bureau for Public 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 testing device located outside the county
in which the arrest was made, if: (i) There is no properly functioning
secondary chemical 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 test be conducted has the
authority to transport the person arrested to where the secondary chemical
testing device is located.
(g) (i) If the arresting officer lacks
proper training in the administration of a secondary chemical test, then any
other law‑enforcement officer who has received training in the
administration of the secondary chemical test to be administered may, upon the
request of the arresting law‑enforcement officer and in his or her
presence, conduct the secondary test. The results of a 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) (j) Only the person actually
administering or conducting a test conducted pursuant to this article is
competent to testify as to the results and the veracity of the test.
(i) (k) (1) For the purpose of this article,
the term Alaw‑enforcement
officer@ or Apolice 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 natural resources
police 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.
(2) In addition to standards promulgated by the Governor=s Committee on Crime, Delinquency and Correction, pursuant to section three, article twenty‑nine, chapter thirty of this code, governing the qualification of law‑enforcement officers and the entry‑level law‑enforcement training curricula, the Governor=s Committee on Crime, Delinquency and Correction shall require the satisfactory completion of a minimum of not less than six hours of training in the recognition of impairment in drivers who are under the influence of controlled substances or drugs other than alcohol.
(3) In addition to standards promulgated by the Governor=s Committee on Crime, Delinquency and Correction, pursuant to section three, article twenty‑nine, chapter thirty of this code, establishing standards governing in‑service law‑enforcement officer training curricula and in‑service supervisory level training curricula, the Governor=s Committee on Crime, Delinquency and Correction shall require the satisfactory completion of a minimum of not less than six hours of training in the recognition of impairment in drivers who are under the influence of controlled substances or drugs other than alcohol.
(4) That after December 31, 2014, a law‑enforcement
officer who has not satisfactorily completed the minimum number of hours of
training in the recognition of impairment in drivers who are under the influence
of controlled substances or drugs other than alcohol, required by subdivisions
subdivision (2) or (3) of this subsection, may no longer require
any person to submit to secondary chemical test of his or her blood for the
purposes of determining the concentration in the person=s body of a controlled substance, drug, or any
combination thereof.
(j) (l) 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 incidental to a lawful arrest, a secondary
chemical test of the accused person=s
blood or breath to determine the alcohol concentration in his or her blood, or
the concentration in the person=s
body of a controlled substance, drug, or any combination thereof.
NOTE: The purpose of this bill is to require a search warrant be issued before a driver of a motor vehicle can be made to submit to a secondary blood test to determine the concentration of alcohol or controlled substance in his or her blood.
Strike‑throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.