hdj2010-03-11-58

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Thursday, March 11, 2010
FIFTY-EIGHTH DAY
[Mr. Speaker, Mr. Thompson, in the Chair]

The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Wednesday, March 10, 2010, being the first order of business, when the further reading thereof was dispensed with and the same approved.
At the request of Delegate Boggs, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introduction of resolutions.
Resolutions Introduced
Delegates Caputo, Schadler, Kominar, Varner, Mahan and Craig offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 124 - "Requesting the Joint Committee on Government and Finance to study funding sources for county clerks to acquire resources, such as, staff, computer hardware, scanners and software, to implement Uniform Electronic Transactions Act and other similar acts."
Whereas, Acquiring funding for necessary resources is imperative to implement these acts; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study funding sources for county clerks to acquire resources, such as, staff, computer hardware, scanners and software, to implement Uniform Electronic Transactions Act and other similar acts; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2011, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Delegate J. Miller offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 125 - "Expressing the will of the Legislature to reaffirm the sister-state relationship the State of West Virginia has with Taiwan Province of the Republic of China and to affirm support for increasing Taiwan's participation in and contribution to the global community."
Whereas, August 4, 2010, will mark the 30^th anniversary of a sister state relationship between West Virginia and Taiwan; and
Whereas, For the past 30 years, our sister state relationship with Taiwan has been strengthened through the efforts of the Taipei Economic and Cultural Representative Office (TECRO) resulting in a better mutual understanding of the economic, social, and heritage of both West Virginia and of Taiwan; and
Whereas, Taiwan's absence from international organizations dealing with climate change like United Nations Framework Convention on Climate Change(UNFCCC) has impeded Taiwan's ability to respond to natural disasters like Typhoon Morakot, which struck Taiwan in the summer of 2009; and
Whereas, Taiwan is a key air transport hub in the Asia-Pacific region, with over 1.35 million flights passing through every year, and has the World's 11^th largest airport by cargo volume, Taoyuan International Airport; given Taiwan's prominent role in regional air control and transport services and, since 2001, aviation safety has become a major global concern, it would be both beneficial for Taiwan, and act to safeguard the travel of passengers from home and abroad to allow for Taiwan's meaningful participation in the International Civil Aviation Organization (ICAO); therefore, be it
Resolved by the Legislature of West Virginia:
That we reaffirm the sister-state relationship of the State of West Virginia and Taiwan; and, be it
Further Resolved, That the Legislature affirms its support for the participation of Taiwan in the United Nations Framework Convention on Climate Change(UNFCCC) and the International Civil Aviation Organization (ICAO) to increase Taiwan's contribution to the global community; and, be it
Further Resolved, That a copy of this resolution be sent to the President of the United States, the President of the United States Senate and the Speaker of the United States House of Representatives.
Delegate Sumner offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 126 - "Requesting the Joint Committee on Government and Finance to study the consequences of net metering tariff policy as practiced by the Public Service Commission on solar energy producers."
Whereas, Solar energy is a means of electrical production which lowers the emissions associated with electrical production; and
Whereas, Development of a robust and diverse portfolio of electric-generating capacity is needed for West Virginia to continue its success in attracting new businesses and jobs; and
Whereas, It is in the public interest for the state to encourage the construction of alternative and renewable energy resource facilities that increase the capacity to provide for current and anticipated electric energy demand at a reasonable price; and
Whereas, It is in the interest of the state to reduce as many barriers to entry into production of solar energy as is possible; and
Whereas, These barriers include a net metering tariff fee, requiring solar energy producers to pay for the installation of a meter from the power company to measure the power they produce for vending; and
Whereas, This meter is not the property of the solar energy producer but remains the property of the power company; and
Whereas, The Public Service Commission has approved these net metering tariff fees without giving this body any guidance upon whether these fees represent a barrier to entry to solar power producers; and
Whereas, The impact of these net metering tariff fees upon solar power production is a sound topic of study; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the consequences of net metering tariff policy as practiced by the Public Service Commission on solar energy producers; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2011, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Delegate Boggs offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 127 - "Requesting that the bridge between mile markers 54 and 55 on Interstate 79 in Braxton County, West Virginia be named the 'Ray P. Reip Memorial Bridge'."
Whereas, Ray P. Reip was born in Braxton County, West Virginia in 1919 on his parent's farm; and
Whereas, Ray Reip would walk several miles through countryside and then cross the Elk River by boat to attend high school; and
Whereas, Ray Reip served in the United States Navy during World War II as an aviation radioman, and, after his honorable discharge, Ray returned to his beloved farm in Braxton County where he married his wife and had two daughters; and
Whereas, Following in his father's footsteps, Ray Reip was a farmer, that any neighbor could rely on day or night for his help; and
Whereas, They once said, "Give Ray a pair of pliers and some bailer twine and he could fix anything"; and
Whereas, With the decision to build Interstate 79, Interstate 79 would transect Ray's farm, taking his homestead, three barns, three ponds and land locking approximately 30 acres; and
Whereas, Although Ray was devastated, he continued to raise cattle, sheep and work construction on the very type of roads that had taken his beloved land; and
Whereas, Ray worked hard to provide for his family, and always loved living in West Virginia, which he truly believed was the next best place to Heaven; and
Whereas, Ray's surviving wife is now age 86 and served as a marine in World War II and is one of the oldest female veterans of World War II in Braxton County, West Virginia; and
Whereas, Ray P. Reip was a wonderful husband, a loving father, a loyal neighbor, and served his community unselfishly, his country with honor and distinction; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the the bridge between mile markers 54 and 55 on Interstate 79 in Braxton County, West Virginia, the "Ray P. Reip Memorial Bridge"; and, be it
Further Resolved, That the Commissioner of the Division of Highways is hereby requested to erect signs at both ends of the bridge containing bold and prominent letters proclaiming the bridge the "Ray P. Reip Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the Commissioner of the Division of Highways, Mr. Reip's wife, Betty Reip and his two daughters, Barbara Morgan and Donna Pierson.
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Memorial Tribute to Joseph P. Albright
Former Speaker of the House
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The Speaker recognized the Majority Leader, who announced the presence of the West Virginia Supreme Court of Appeals, seated in the Well of the House in seats reserved for them. The Court members, consisting of Chief Justice Robin Davis, Justice Margaret Workman, Justice Brent Benjamin, Justice Menis Ketchum and Justice Thomas McHugh, were accompanied by the Honorable Rory L Perry, II, Clerk of the Supreme Court.
The Speaker next recognized the Majority Leader, who announced that Mrs. Nancie G. Albright was present for the Memorial Tribute.
Mrs. Albright, accompanied by Law Clerks Peggy Rash, Cindy Nelson, Mary Blaydes and Susan Scott, entered the Chamber and were escorted to the Well of the House by Delegates D. Poling, Azinger, Border and Ellem (The Members of the House arising)
The House proceeded to take up consideration of the Memorial Resolution, heretofore penned by the Clerk and now read by him, as the Members and invited guests stood in silent tribute:

House Resolution 30
(By Delegates D. Poling, Azinger, Ellem and Border)

"Paying tribute to the character, outstanding career and extraordinary public service of the late Joseph Paul Albright, a former Speaker of the West Virginia House of Delegates, and a former Justice of the Supreme Court of Appeals of West Virginia."
Whereas, The host of friends of Joseph Paul Albright throughout West Virginia were shocked and deeply saddened by his death on March 20, 2009, despite the fact that many of them were aware that he had been bearing the tortures of a serious malady for several months.
Joseph P. Albright was born November 8, 1938, in Wood County, the son of M. P. Albright and Catherine A. (Rathbone) Albright.
He received his education in the public schools and graduated from Parkersburg High School in 1956. He earned a Bachelor of Business Administration degree from the University of Notre Dame, graduating cum laude, and received his law degree from Notre Dame College of Law, where he won the Webber Prize for Appellate Advocacy and served as a member of the Notre Dame Law Review.
He married Patricia A. Deem in 1958, and they had four children: Terri Albright Cavi, Dr. Lettie Albright Muckley, Joseph P. Albright, Jr., and John Patrick Albright. Joe and Patty lost their youngest, John, to illness at the young age of 17, and later Patty succumbed to the same disease.
In 1995, he married Nancie Gensert Divvens, inheriting her three daughters and their families: Susan Divvens Bowman, Deborah Divvens Rake and Sandra Divvens Fox.
A life-long member of Saint Francis Xavier Roman Catholic Church, he was a devotee of the Tridentine Latin Mass and worked tirelessly to save the traditional ornaments and interior decor of his parish church from the hand of destruction by an eager and determined pastor. Joe won - and the parish benefitted from his determined dedication to preserve a classic jewel. His devotion to his church continued throughout his life.
Joe Albright was an active participant in community affairs, having served as Parkersburg City Solicitor and served on several public and quasi-public boards, including the Parkersburg Charter Board in 1969-70, when a new City Charter was adopted.
An avid supporter of West Virginia University, particularly the WVU College of Law, he posthumously received the 2009 Justitia Officium Award, which is the highest honor the College of Law can bestow upon an individual.
A Democrat politically, his views and recommendations were sought and highly rated in the councils of his party. Joe Albright practiced law in Parkersburg and surrounding counties from 1962 until September, 1995, when he was appointed by then-Governor Gaston Caperton to an unexpired term on the Supreme Court of Appeals. He served on the Court through December, 1996 and then resumed his law practice in Parkersburg. He was elected to a full twelve-year term of the Court in 2000, and served as Chief Justice in 2005. A competent and trustworthy counselor, he was always faithful to the interests of his clients. Both in the practice of law and as a Justice of the Supreme Court, he adhered strictly to the high ethical standards and traditions of the legal profession.
The public service of Joseph P. Albright encompassed a wide range of activity. He served as Assistant Prosecuting Attorney of Wood County and former City Attorney for the City of Parkersburg. He was elected to the House of Delegates in 1970, and to six more terms commencing in 1974. He served as Chairman of the House Education Committee in 1977-78, Chairman of the House Judiciary Committee from 1979 to 1984. In 1984, Joseph Paul Albright was elected as the 52^nd Speaker of the House, a position he held with distinction and honor.
As a legislator, he was competent and informed, possessing a keen knowledge and understanding of the legislative process, legislative programs and legislative problems. His grasp of the educational problems facing the State in light of a judicial ruling was phenomenal. He was thoroughly informed as to the purpose and effect of proposed legislation, and he worked with a devotion and ingenuity that set a record for personal fidelity and individual enterprise and achievement. During his legislative service, he strove for the enactment of laws that would contribute to West Virginia being a better and more prosperous State, and he was the driving force behind the creation of the Blennerhasset Historical State Park and Museum.
Those who served with him never for a moment lost the feeling of being in the presence of a great and good man, whether they had his agreement or his opposition. His knowledge of parliamentary rules and concepts only enhanced his love of discussing the journey of the House as he led it, and he never faltered at seeking the benefit of counsel of the Parliamentarian even though his knowledge was sound. His parliamentary rulings were fair and just - as he was in life.
Undoubtedly, history will chronicle Joseph Albright as one of the great Speakers of all time. Certainly few men in the history of West Virginia have matched his brilliance, courage, leadership and accomplishments. He was courteous and considerate, gave wise counsel, observed rigid standards of integrity and principles, and was conciliatory and mutually just in negotiation. Among the great attributes of this distinguished Speaker were compassion, fairness, wise counsel, integrity and impartiality. He did not arbitrarily use his power as Speaker, instead, when necessary, he used his power of persuasion.
As Speaker, he served both his constituencies - the people back home and the members of the House of Delegates - with patience and loyalty.
Regardless of the power of the Speakership, he accepted for himself with reverence and punctiliousness what may be called the rule of the democratic process.
Some one hundred eighty-seven years ago Henry Clay, one of the greatest Speakers in ths history of the United States Congress, on the qualities needed for the Speakership, said this:
" They enjoin promptitude and impartiality in deciding the various questions of order as they arise; firmness and dignity in his deportment toward the House; patience, good temper, and courtesy toward the individual members, and the best arrangement and distribution of the talent of the House, in its numerous subdivisions, for the dispatch of the public business, and the fair exhibition of every subject presented for consideration. They especially require of him, in those moments of agitation from which no deliberative assembly is always entirely exempt, to remain cool and unshaken amidst all the storms of debate, carefully guarding the preservation of the permanent laws and rules of the House from being sacrificed to temporary passions, prejudices, or interests."
No man in the galaxy of Speakers in the several states has excelled Joseph Albright in the qualities prescribed by Clay. He graphically portrayed an innate possession of these qualities as Speaker of the West Virginia House of Delegates.
Joe Albright loved Parkersburg, his home; West Virginia, his State; and, above all, as the loyal patriot he was, he fully loved his country.
An unassuming, friendly and serious man, he was as real as the mountains from whence he came and as the down to earth people who were his neighbors and friends. He was a man of true dignity, unsullied by pomp and bluster, a man of warmth and understanding.
Those who knew this patriotic and humanely concerned citizen cherish the moments they shared with him. This solid giant has left a legacy of good works, faith in people and nobility of purpose. Present and future legislators may draw inspiration from this man and his record.
In the Book of Psalms, we find "The righteous shall be held in everlasting remembrance." The life of Joseph Paul Albright, even though it was unfortunately short, but filled with good works and able and unselfish service to his country, State, and fellowmen, will live in everlasting remembrance; therefore, be it
Resolved by the House of Delegates of the West Virginia Legislature, in solemn assembly:
That this House of Delegates deplores the untimely demise of former Speaker Joseph P. Albright, extols his distinguished and enviable record of public service, lauds his high character and lofty principles, recognizes the terrific grief being suffered by his family as a result of the loss of a beloved husband, father, stepfather and friend; and hereby conveys to the family the genuine sympathy of the individual members of the House of Delegates of the 79^th West Virginia Legislature; and, be it
Further Resolved, That the Clerk of the House of Delegates prepare certified copies of this resolution for his wife, Nancie Albright; for his children and stepchildren Terri Albright Cavi, Dr. Lettie Albright Muckley, Joseph P. Albright, Jr., Susan Divvens Bowman, Deborah Divvens Rake and Sandra Divvens Fox; and for the Clerk of the Supreme Court of Appeals, for preservation in the archives thereof.
Committee reference having been dispensed with, the Speaker then put the question on the adoption of the Resolution, and the same was unanimously adopted.
The Speaker then called Delegate Fragale to the Chair to preside over the House while he delivered the certified Resolution to Mrs. Albright.
At the conclusion of the exchange of greeting by the Speaker and Mrs. Albright, the Speaker again assumed the Chair.
The Wood County Delegation then accompanied Mrs. Albright and the Law Clerks from the Chamber, and the Members of the Supreme Court, accompanied by their Clerk, retired to their Chamber.
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Committee Reports
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 75, Requesting a study on the feasibility of authorizing the DMV to adopt a program to utilize electronic verification of insurance coverage to identify uninsured motor vehicles,
And,
H. C. R. 111, Urging the United States Environmental Protection Agency to interpret the West Virginia Water Pollution Act,
And reports the same back with the recommendation that they each be adopted.
Messages from the Executive
Mr. Speaker, Mr. Thompson, presented a communication from His Excellency, the Governor, advising that on March 10, 2010, he approved Com. Sub. for H. B. 4128.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 2503, Requiring licensed tattoo artist to inform patrons, prior to performing the tattoo procedure, of the potential problems that a tattoo may cause in relation to the reading of magnetic resonance imaging.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 38. TATTOO STUDIO BUSINESS.
§16-38-3. Operation standards.
(a) Records. -
(1) Proper records of tattoos administered shall be maintained for each patron by the holder of the studio registration;
(2) A record shall be prepared for each patron prior to any procedure being performed and shall include the patron's name and signature, address, age, date tattooed, design of the tattoo, location of the tattoo on the patron's body and the name of the tattoo artist who performed the work;
(3) Record entries shall be in ink or indelible pencil and shall be available for examination by the inspecting authorities provided in section six of this article;
(4) Before tattoo administration, the owner or tattoo artist shall discuss with the patron the risks involved in the tattoo requested, including the potential that a tattoo may interfere with the clinical reading of a magnetic resonance imaging study, should the patron intending to be tattooed ever encounter a medical need for such a study. The owner shall provide the patron with written information regarding the possible complications that may arise from receiving a tattoo. The written information shall be prepared by the Department of Health and Human Resources. Receipt of the information shall be acknowledged in writing by the patron. The owner or tattoo artist shall also keep and maintain the acknowledgment as part of the patron's record pursuant to the provisions of subdivision (5) of this subsection.
(5) All records required by this section shall be kept on file for five years by the holder of the studio registration for the studio in which the tattoo was performed.
(b) Consent. --
(1) Prior written consent for tattooing of minors shall be obtained from one parent or guardian;
(2) All written consents shall be kept on file for five years by the holder of the studio registration for the tattoo studio in which the tattoo was performed;
(3) The person receiving the tattoo shall attest to the fact that he or she is not intoxicated or under the influence of drugs or alcohol.
(c) Tattooing procedures. --
(1) Printed instructions on the care of the skin after tattooing shall be given to each patron as a precaution to prevent infection;
(2) A copy of the printed instructions shall be posted in a conspicuous place, clearly visible to the person being tattooed;
(3) Each tattoo artist shall wear a clean outer garment, i.e., apron, smock, T-shirt, etc.;
(4) Tattoo artists who are experiencing diarrhea, vomiting, fever, rash, productive cough, jaundice, draining or open skin infections such as boils which could be indicative of more serious conditions such as, but not limited to, impetigo, scabies, hepatitis-b, HIV or AIDS shall refrain from tattooing activities until such time as they are no longer experiencing or exhibiting the aforementioned symptoms;
(5) Before working on each patron, the fingernails and hands of the tattoo artist shall be thoroughly washed and scrubbed with hot running water, antibacterial soap and an individual hand brush that is clean and in good repair;
(6) The tattoo artist's hands shall be air blown dried or dried by a single-use towel. In addition, disposable latex examination gloves shall be worn during the tattoo process. The gloves shall be changed each time there is an interruption in the tattoo application, the gloves become torn or punctured or whenever their ability to function as a barrier is compromised;
(7) Only sterilized or single-use, disposable razors shall be used to shave the area to be tattooed;
(8) Immediately prior to beginning the tattoo procedure, the affected skin area shall be treated with an antibacterial solution;
(9) If an acetate stencil is used by a tattoo artist for transferring the design to the skin, the acetate stencil shall be thoroughly cleaned and rinsed in a germicidal solution for at least 20 minutes and then dried with sterile gauze or dried in the air on a sanitized surface after each use;
(10) If a paper stencil is used by a tattoo artist for transferring the design to the skin, the paper stencil shall be single-use and disposable;
(11) If the design is drawn directly onto the skin, the design shall be applied with a single-use article only.
(d) Dyes or pigments. --
(1) Only nontoxic sterile dyes or pigments shall be used and shall be prepared in sterilized or disposable single-use containers for each patron;
(2) After tattooing, the unused dye or pigment in the single-use containers shall be discarded along with the container;
(3) All dyes or pigments used in tattooing shall be from professional suppliers specifically providing dyes or pigments for the tattooing of human skin.
(e) Sterilization of needles. --
(1) A set of individual, sterilized needles shall be used for each patron;
(2) No less than twenty-four sets of sterilized needles and tubes shall be on hand for the entire day or night operation. Unused sterilized instruments shall be resterilized at intervals of no more than six months from the date of the last sterilization;
(3) Used, nondisposable instruments shall be kept in a separate, puncture resistant container until brush scrubbed in hot water and soap and then sterilized by autoclaving;
(4) If used instruments are ultrasonically cleaned prior to being placed in the used instrument container, they shall be ultrasonically cleaned and then rinsed under running hot water prior to being placed in the used instrument container;
(5) The ultrasonic unit shall be sanitized daily with a germicidal solution;
(6) If used instruments are not ultrasonically cleaned prior to being placed in the used instrument container, they shall be kept in a germicidal or soap solution until brush scrubbed in hot water and soap and then sterilized by autoclaving;
(7) All nondisposable instruments, including the needle tubes, shall be sterilized and shall be handled and stored in such a manner as to prevent contamination. Instruments to be sterilized shall be sealed in bags made specifically for the purpose of autoclave sterilization and shall include the date of sterilization. If nontransparent sterilization bags are utilized, the bag shall also list the contents;
(8) Autoclave sterilization bags, with a color code indicator which changes color upon proper steam sterilization, shall be utilized during the autoclave sterilization process;
(9) Instruments shall be placed in the autoclave in such a manner as to allow live steam to circulate around them;
(10) No rusty, defective or faulty instruments shall be kept in the studio.
(f) Aftercare of tattoo. --
The completed tattoo shall be washed with a single-use towel saturated with an antibacterial solution."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 2503 - "A Bill to amend and reenact §16-38-3 of the Code of West Virginia, 1931, as amended, relating to requiring licensed tattoo artists to inform patrons, prior to performing the tattoo procedure, of the potential problems that a tattoo may cause in relation to the clinical reading of magnetic resonance imaging studies; requiring the Department of Health and Human Resources to prepare written forms thereto; requiring an acknowledgment by the patron and specifying record keeping requirements."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 244), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Hamilton and McGeehan.
Absent And Not Voting: Argento and Shook.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2503) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4081, Authorizing the Department of Military Affairs and Public Safety to promulgate legislative rules.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page six, section four, line ten, after the word "facility", by adding a semi-colon and the following:
On page five, after the section caption "§170-2-5. Penalties" and the period, by inserting a new subsection 5.1, to read as follows:
5.1. Penalty Amount. The director shall impose a civil penalty on the industrial facility if he or she determines that the industrial facility failed to comply with the reporting or communications and access requirements in this rule. In no case shall the total penalty for all violations exceed $100,000 for an emergency event.;
And renumbering the remaining subsections.
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 245), and there were--yeas 91, nays 7, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Ashley, Border, Lane, J. Miller, Porter and Walters.
Absent And Not Voting: Argento and Shook.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4081) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 246), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes and Porter.
Absent And Not Voting: Argento and Shook.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4081) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4110, Authorizing the Department of Commerce to promulgate legislative rules.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page five, section three, line nineteen, by striking out "3.8.5." and inserting in lieu thereof "3.8.4.".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 247), and there were--yeas 87, nays 12, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Canterbury, Ireland, Lane, J. Miller, Porter, Schoen and Walters.
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4110) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 248), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Andes, Ireland, J. Miller, Porter and Schoen.
Absent And Not Voting: Argento.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4110) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4299, Providing that nonstate retired employees who have worked for their last nonstate employer for less than five years are responsible for their entire premium cost.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section twenty-two, line fifty-six, after the word "employer" by inserting the words "not mandated to participate in the plan".
And,
On page five, section twenty-two, lines sixty-one through seventy, by striking out the proviso and inserting in lieu thereof a new proviso, to read as follows: Provided, however, That those retired employees of an employer not participating in the plan who retire on or after July 1, 2010, who have participated in the plan as active employees of the employer for less than five years are responsible for the entire premium cost for coverage and the Public Employees Insurance Agency shall bill for and collect the entire premium from the retired employees, unless the employer elects to pay the employer share of the premium.
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 249), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Walters.
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4299) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4335, Relating to the business registration tax.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section five, line thirty, after the word "requirements", by inserting the words "other than the $4,000 or less gross income exemption"followed by a comma.
And,
On page four, section five, line forty-five, after the word "tax" by changing the period to a colon and inserting the following proviso: "Provided, That the $4,000 or less gross income exemption set forth in subdivision (1), subsection (d), section three of this article does not apply."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4335 - "A Bill to amend and reenact §11-12-5 of the Code of West Virginia, 1931, as amended, relating to the business registration tax generally; specifying the business registration tax and business registration certificate are subject to certain exemptions; and specifying that the tax is imposed for each and every issuance, reissuance or reinstatement of a business registration certificate."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 250), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Porter.
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4335) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4436, Providing discretion to schools that make AYP to use assessments and adopting instructional strategies and programs that promote student learning.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section five, lines fourteen through eighteen, by striking out all of paragraph (C) and inserting in lieu thereof a new paragraph (C), to read as follows:
"(C) A system of accountability for continuous improvement defined by high quality standards for schools and school systems articulated by a rule promulgated by the state board and outlined in subsection (c) of this section that will build capacity in schools and districts to meet rigorous outcomes that assure student performance and progress toward obtaining the knowledge and skills intrinsic to a high quality education rather than monitoring for compliance with specific laws and regulations; and" .
On page forty-one, section five, line seven hundred forty-six, by striking out the word "may" and inserting in lieu thereof the word "shall".
On page fifty-six, section six, line forty, by striking out the words "a primary" and inserting in lieu thereof the word "the".
On page fifty-eight, section six, line sixty-nine, after the word "independently" followed by a period and by striking out the remainder of the section.
On page fifty-seven, section six, after line fifty, by inserting the following:
"School curriculum teams may request waivers of non-state mandated tests listed in their county board policies. The determination of whether to grant the request shall be based on the school's accreditation status. Waivers are in effect for one year only. School curriculum teams may resubmit the same or additional waiver requests the following year."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4436 - "A Bill to amend and reenact §18-2E-5 and §18-5A-6 of the Code of West Virginia, 1931, as amended, relating to promoting student achievement; revising accountability finding; clarifying optional usage of certain testing or assessment instruments; publishing and making such instruments available to curriculum teams and teacher collaborations; making exclusions from accreditation and evaluations for failure to use or exercise of discretion in using certain assessments, strategies and programs; adding circumstance to definition of low performing school; providing for state system of support for low performing schools and modifying process and time lines for improvement; requiring schools and school systems to work collaboratively with state system of support in certain circumstances; requiring school curriculum teams to review certain non required tests and assessments and providing it discretion to determine usage; authorizing team to request waiver of state and county requirements to use certain assessments, instructional strategies or programs; updating waivers for instructional resources; providing for optional adoption by schools of process for teacher collaboration to replace or in addition to school curriculum team; and providing for membership, mission and structure."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 251), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4436) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4457, Relating to the access to and protection of cemeteries.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page twenty-one, section one, lines thirty through thirty-two, by striking out subdivision (2) in its entirety and renumbering the remaining subdivision.
And,
On page twenty-five, section seven, line eight, by striking out the words "using GPS technology".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 252), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4457) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4534, Increasing the criminal penalty for failing to stop and render aid after a motor vehicle accident; Erin's Law.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 4. CRASHES.
§17C-4-1. Crashes involving death or personal injuries; Erin's Law.
(a) The driver of any vehicle involved in ~~an accident~~ a crash resulting in injury to or death of any person shall immediately stop the vehicle at the scene of the ~~accident~~ crash or as close ~~thereto~~ to the scene as possible ~~but shall then forthwith~~ and return to and ~~shall~~ remain at the scene of the ~~accident~~ crash until he or she has complied with the requirements of section three of this article: Provided, That the driver may leave the scene of the ~~accident~~ crash as may reasonably be necessary for the purpose of rendering assistance to an injured person as required by said section three. Every such stop shall be made without obstructing traffic more than is necessary.
(b) Any person knowingly violating the provisions of subsection (a) of this section after being involved in ~~an accident~~ a crash resulting in the death of any person is guilty of a felony and, upon conviction thereof, shall be ~~punished by confinement in a correctional facility for a mandatory term of not less than one year and~~ fined by not more than $5,000 or imprisoned in a correctional facility for not less than one year nor more than five years, or both fined and confined.
(c) Any person knowingly violating the provisions of subsection (a) of this section after being involved in ~~an accident~~ a crash resulting in physical injury to any person is guilty of a misdemeanor and, upon conviction thereof, shall be punished by confinement in ~~a county or regional~~ jail for not more than one year, or fined not more than $1,000, or both.
(d) The commissioner shall revoke the license or permit ~~to drive~~ or operating privilege to drive ~~and~~ of any resident or nonresident ~~operating privilege of any~~ person convicted pursuant to the provisions of this section for a period of one year from the date of conviction or the date of release from incarceration, whichever is later.
(e) This section may be known and cited as 'Erin's Law'."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 253), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Argento.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4534) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Special Calendar
Unfinished Business
The following resolutions, coming up in regular order, as unfinished business, were each reported by the Clerk and adopted:
H. C. R. 89, The "Staff Sergeant Arthur Coulter and Corporal E. J. Sizemore Memorial Bridge " ,
H. C. R. 102, Requesting a study of the issues relating to creating a matching grant pilot project,
And,
H. C. R. 103, The "Wilma Ellen Hodges Leslie Memorial ".
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading
Com. Sub. for S. B. 38, Creating WV Servicemembers Civil Relief Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 254), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Argento.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 38) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 185, Creating WV Commercial Patent Incentives Tax Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 255), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 185) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 218, Providing for early parole eligibility for certain inmates; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegates Miley and Frazier, the bill was amended on page one, section thirteen by following the word "child", by striking out the comma, inserting a semi-colon, and striking out the words "or more than one felony drug offense under article four, chapter sixty-A of the code of West Virginia for which the inmate has served or is servicing a consecutive sentence" followed by a semi-colon.
And,
On page two, section thirteen, line six, following the words "the person", by inserting the words "is not serving more than one felony drug offense under article four, chapter sixty-A of this code for which the inmate has served or is servicing a consecutive sentence; or serving a sentence for."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 256), and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Border, Cowles, Lane, McGeehan, C. Miller, J. Miller, Overington, Sobonya, Sumner, D. Walker and Walters.
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 218) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 218 - "A Bill to amend and reenact §62-12-13 of the Code of West Virginia, 1931, as amended, relating to powers and duties of the board of parole; eligibility for parole; changing when an inmate's written parole release plan may be prepared and considered; procedures for granting parole; accelerated parole eligibility for certain inmates who complete a rehabilitation treatment plan created with the assistance of a standardized risk and needs assessment; authorizing the Division of Corrections to promulgate policies and procedures related to accelerated parole eligibility; creating a rebuttable presumption for parole in certain circumstances; authorizing board of parole to contingently grant parole allowing board of parole to consider inmates for parole who have certain detainers pending against them; reducing the period for parole reconsideration; making technical corrections; and creating an internal effective date for certain amendments to the section."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 219, Relating to managing state motor vehicle fleet; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegates Cowles and Armstead, the bill was amended on page three, line thirty-one, following the word "authorities", by inserting the following:
"Provided, That, such vehicles and aircraft shall not be used for personal purposes, other than for de minimis personal use."
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 257), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 219) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 286, Authorizing DHHR promulgate legislative rules; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 258), and there were--yeas 85, nays 13, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Border, Cowles, Lane, C. Miller, J. Miller, Overington, Schoen, Sobonya and Walters.
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 286) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 259), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, C. Miller, Schoen and Sobonya.
Absent And Not Voting: Argento and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 286) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 291, Authorizing Department of Transportation promulgate legislative rules; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 260), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes, Blair, Lane, J. Miller, Porter and Walters.
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 291) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 261), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes and Porter.
Absent And Not Voting: Argento and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 291) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates
At 11:56 a.m., on motion of Delegate Boggs, the House of Delegates recessed until 2:00 p.m., and reconvened at that time.
* * * * * * *
Afternoon Session
* * * * * * *
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 273, Authorizing DEP promulgate legislative rules.
On motion of Delegate Boggs, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Brown, Fleischauer and Sobonya.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates, as follows:
H. B. 3110, Renaming conservation officers to be natural resources police officers. On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
That §15-2-12 of the code of West Virginia be amended and reenacted; that §15-10-3 be amended and reenacted; that §15-10A-2 be amended and reenacted; that §17-24A-1 and §17-24A-2 be amended and reenacted; that §17A-3-23 be amended and reenacted; that §17C-4-16 be amended and reenacted; that §17C-5-4 be amended and reenacted; that §18B-10-7 be amended and reenacted; that §19-20A-7 be amended and reenacted; that §20-1-13 be amended and reenacted; that §20-2-5, §20-2-7, §20-2-15, §20-2-16, §20-2-22, §20-2-22a, §20-2-56a and §20-2-57a be amended and reenacted; that §20-7-1, §20-7-1a, §20-7-1b, §20-7-1c, §20-7-1d, §20-7-1e and §20-7-1f, §20-7-2, §20-7-3, §20-7-4 and §20-7-12b be amended and reenacted; that §22-15A-19 be amended and reenacted; that §29-2A-11a be amended and reenacted; that §29-3-12 be amended and reenacted ; that §30-29-1 be amended and reenacted; and that §36-8A-1 be amended and reenacted , all to read as follows:
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.

§15-2-12. Mission of the State Police; powers of superintendent, officers and members; patrol of turnpike.

(a) The West Virginia State Police shall have the mission of statewide enforcement of criminal and traffic laws with emphasis on providing basic enforcement and citizen protection from criminal depredation throughout the state and maintaining the safety of the state's public streets, roads and highways.
(b) The superintendent and each of the officers and members of the division are hereby empowered:
(1) To make arrests anywhere within the state of any persons charged with the violation of any law of this state, or of the United States, and when a witness to the perpetration of any offense or crime, or to the violation of any law of this state, or of the United States, to make arrests without warrant; to arrest and detain any persons suspected of the commission of any felony or misdemeanor whenever a complaint is made and a warrant is issued thereon for the arrest, and the person arrested shall be immediately brought before the proper tribunal for examination and trial in the county where the offense for which the arrest has been made was committed;
(2) To serve criminal process issued by any court or magistrate anywhere within this state: Provided, That they may not serve civil process; and
(3) To cooperate with local authorities in detecting crime and in apprehending any person or persons engaged in or suspected of the commission of any crime, misdemeanor or offense against the law of this state, or of the United States, or of any ordinance of any municipality in this state; and to take affidavits in connection with any application to the Division of Highways, Division of Motor Vehicles and of West Virginia State Police for any license, permit or certificate that may be lawfully issued by these divisions of state government.
(c) Members of the West Virginia State Police are hereby designated as ~~forest patrolmen and game and fish wardens~~ natural resources police officers throughout the state to do and perform any duties and exercise any powers of ~~forest patrolmen and game and fish wardens~~ natural resources police officers, and may apprehend and bring before any court or magistrate having jurisdiction of these matters, anyone violating any of the provisions of chapters twenty, sixty and sixty-one of this code. The West Virginia State Police is at any time subject to the call of the West Virginia Alcohol Beverage Control Commissioner to aid in apprehending any person violating any of the provisions of chapter sixty of this code. They shall serve and execute warrants for the arrest of any person and warrants for the search of any premises issued by any properly constituted authority, and shall exercise all of the powers conferred by law upon a sheriff. They may not serve any civil process or exercise any of the powers of ~~such~~ an officer in civil matters.
(d) Any member of the West Virginia State Police knowing or having reason to believe that any person has violated the law may make complaint in writing before any court or officer having jurisdiction and procure a warrant for the offender, execute the warrant and bring the person before the proper tribunal having jurisdiction. The member shall make return on all warrants to the tribunals and his or her official title shall be 'member of the West Virginia State Police'. Members of the West Virginia State Police may execute any summons or process issued by any tribunal having jurisdiction requiring the attendance of any person as a witness before the tribunal and make return thereon as provided by law. Any return by a member of the West Virginia State Police showing the manner of executing the warrant or process has the same force and effect as if made by a sheriff.
(e) Each member of the West Virginia State Police, when called by the sheriff of any county, or when directed by the Governor by proclamation, has full power and authority within the county, or within the territory defined by the Governor, to direct and command absolutely the assistance of any sheriff, deputy sheriff, chief of police, policeman, ~~game and fish warden~~ natural resources police officer and peace officer of the state, or of any county or municipality therein, or of any able-bodied citizen of the United States, to assist and aid in accomplishing the purposes expressed in this article. When called, any officer or person is, during the time his or her assistance is required, for all purposes a member of the West Virginia State Police and subject to all the provisions of this article.
(f) The superintendent may also assign members of the division to perform police duties on any turnpike or toll road, or any section of any turnpike or toll road, operated by the West Virginia Parkways, Economic Development and Tourism Authority: Provided, That the authority shall reimburse the West Virginia State Police for salaries paid to the members and shall either pay directly or reimburse the division for all other expenses of the group of members in accordance with actual or estimated costs determined by the superintendent.
(g) The West Virginia State Police may develop proposals for a comprehensive county or multicounty plan on the implementation of an enhanced emergency service telephone system and may cause a public meeting on the proposals, all as set forth in section six-a, article six, chapter twenty-four of this code.
(h) By the first day of July, one thousand nine hundred ninety-three, the superintendent shall establish a network to implement reports of the disappearance of children by local law-enforcement agencies to local school division superintendents and the State Registrar of Vital Statistics. The network shall be designed to establish cooperative arrangements between local law-enforcement agencies and local school divisions concerning reports of missing children and notices to law- enforcement agencies of requests for copies of the cumulative records and birth certificates of missing children. The network shall also establish a mechanism for reporting the identities of all missing children to the State Registrar of Vital Statistics.
(i) The superintendent may at his or her discretion and upon the written request of the West Virginia Alcohol Beverage Control Commissioner assist the commissioner in the coordination and enforcement of article sixteen, chapter eleven of this code and chapter sixty of this code.
(j) Notwithstanding the provisions of article one-a, chapter twenty of this code, the superintendent of the West Virginia State Police may sell any surplus real property to which the West Virginia State Police or its predecessors retain title, and deposit the net proceeds into a special revenue account to be utilized for the purchase of additional real property and for repairs to or construction of detachment offices or other facilities required by the West Virginia State Police. There is hereby created a special revolving fund in the State Treasury which shall be designated as the 'surplus real property proceeds fund'. The fund shall consist of all money received from the sale of surplus real property owned by the West Virginia State Police. Moneys deposited in the fund shall only be available for expenditure upon appropriation by the Legislature: Provided, That amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this subsection may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
(k) Notwithstanding any other provision of this code, the agency for surplus property is hereby empowered to transfer funds generated from the sale of vehicles, other equipment and commodities belonging to the West Virginia State Police to a special revenue account within the West Virginia State Police entitled the West Virginia State Police surplus transfer account. Moneys deposited in the fund shall only be available for expenditure upon appropriation by the Legislature: Provided, That amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this subsection may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. Any funds transferred to this account may be utilized by the superintendent to defray the cost of normal operating needs of the division.
(l) If the State Police or any other law-enforcement agency in this state receives a report that a person who has Alzheimer's disease and related dementia is missing, the State Police or any other law-enforcement agency shall immediately open an investigation for the purpose of determining the whereabouts of that missing person. Any policy of the State Police or any other law-enforcement agency relating to a waiting period prior to initiation of an investigation of a missing person shall not apply in the case of a person who has Alzheimer's disease or other related dementia of the type referred to in this subsection.
(m) Notwithstanding any provision of this code to the contrary, effective on and after the first day of July, two thousand seven, the expenses and salaries paid to the members of the West Virginia State Police for the monitoring and enforcement duties defined in chapter seventeen-c of this code may not be paid from the state road fund or subject to reimbursement from the Division of Motor Vehicles but shall be subject to appropriation by the Legislature.

ARTICLE 10. COOPERATION BETWEEN LAW-ENFORCEMENT AGENCIES.

§15-10-3. Definitions.
For purposes of this article only, and unless a different meaning plainly is required:
(1) 'Criminal justice enforcement personnel' means those persons within the state criminal justice system who are actually employed as members of the Division of Public Safety, members of the Division of Protective Services, ~~state conservation officers~~ natural resources police officers, chiefs of police and police of incorporated municipalities, and county sheriffs and their deputies, and whose primary duties are the investigation of crime and the apprehension of criminals.
(2) 'Head of a law-enforcement agency' means the Superintendent of the Division of Public Safety, the director of the Division of Protective Services, the chief ~~conservation officer~~ natural resources police officer of the Division of Natural Resources, a chief of police of an incorporated municipality or a county sheriff.
(3) 'State or local law-enforcement officer' means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances, and includes those persons employed as campus police officers at state institutions of higher education in accordance with the provisions of section five, article four, chapter eighteen-b of this code, although those institutions may not be considered law-enforcement agencies. The term also includes those persons employed as rangers by the Hatfield-McCoy regional recreation authority in accordance with the provisions of section six, article fourteen, chapter twenty of this code, although the authority may not be considered a law-enforcement agency.
(4) 'Head of campus police' means the superintendent or administrative head of state or local law-enforcement officers employed as campus police officers at state institutions of higher education in accordance with the provisions of section five, article four, chapter eighteen-b of this code.
(5) 'Head of the rangers of the Hatfield-McCoy regional recreation authority' means the superintendent or administrative head of state or local law-enforcement officers employed as rangers by the Hatfield-McCoy regional recreation authority in accordance with the provisions of section six, article fourteen, chapter twenty of this code.
ARTICLE 10A. LAW-ENFORCEMENT REEMPLOYMENT ACT.
§15-10A-2. Reemployment of law-enforcement officers.
(a) Notwithstanding any provision of this code to the contrary, any honorably retired law- enforcement officer may, at the discretion of the head of a law-enforcement agency, be reemployed subject to the provisions of this article: Provided, That a retired law-enforcement officer employed pursuant to this article must be certified pursuant to article twenty-nine, chapter thirty.
(b) Any person reemployed pursuant to the provisions of this article shall:
(1) Receive the same compensation as a regularly enlisted officer of the same rank;
(2) Receive credit for all years of service accrued prior to their retirement, as well as service rendered after the date of their reemployment;
(3) Exercise the same authority as a regularly enlisted officer of the law-enforcement agency;
(4) Wear the same uniform and insignia;
(5) Be subject to the same oath;
(6) Execute the same bond; and
(7) Exercise the same powers and be subject to the same limitations as a regularly enlisted officer of the law-enforcement agency.
(c) A person reemployed pursuant to the provisions of this article is ineligible for promotion or reclassification of any type nor eligible for appointment to a temporary rank.
(d) A person reemployed pursuant to the provisions of this article may be employed for a period not to exceed two years from the date on which he or she is hired.
(e) As used in this article:
(1) 'Law-enforcement officer' or 'officer' means: (A) Any sheriff and any deputy sheriff of any county; (B) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; and (C) any ~~conservation officer~~ natural resources police officer of the Division of Natural Resources; and
(2) 'Head of a law-enforcement agency' means the chief of police of an incorporated municipality; a county sheriff, or the chief ~~conservation officer~~ natural resources police officer of the Division of Natural Resources.
CHAPTER 17. ROADS AND HIGHWAYS.

ARTICLE 24A. DISPOSAL OF ABANDONED MOTOR VEHICLES, JUNKED MOTOR VEHICLES, AND ABANDONED OR INOPERATIVE HOUSEHOLD APPLIANCES.

§17-24A-1. Definitions.
Unless the context clearly indicates a different meaning, as used in this article:
(1) 'Commissioner' means the commissioner of the Division of Highways or his or her designee.
(2) 'Abandoned household appliance' means a refrigerator, freezer, range, stove, automatic dishwasher, clothes washer, clothes dryer, trash compactor, television set, radio, air conditioning unit, commode, bed springs, mattress or other furniture, fixtures or appliances to which no person claims ownership and which is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher.
(3) 'Abandoned motor vehicle' means any motor vehicle, or major part thereof, which is inoperative and which has been abandoned on public property for any period of time over five days, other than in an enclosed building or in a licensed salvage yard or at the business establishment of a demolisher; or any motor vehicle, or major part thereof, which has remained on private property without consent of the owner or person in control of the property for any period of time over five days; or any motor vehicle, or major part thereof, which is unattended, discarded, deserted and unlicensed and is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher: Provided, That a motor vehicle, or major part thereof, shall not be considered an abandoned motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; and (d) the owner is a business licensed to do business in the state of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale.
(4) 'Demolisher' means any person licensed by the commissioner of the Division of Highways whose business, to any extent or degree, is to convert a motor vehicle or any part thereof or an inoperative household appliance into processed scrap or scrap metal or into saleable parts or otherwise to wreck or dismantle vehicles or appliances.
(5) 'Enclosed building' means a structure surrounded by walls or one continuous wall and having a roof enclosing the entire structure and includes a permanent appendage thereto.
(6) 'Enforcement agency' means any of the following or any combination of the following:
(a) Public law-enforcement officers of this state, including ~~conservation officers~~ natural resources police officers;
(b) Public law-enforcement officers of any county, city or town within this state; and
(c) The Commissioner of the Division of Highways, his or her duly authorized agents and employees.
(7) 'Inoperative household appliance' means a refrigerator, freezer, range, stove, automatic dishwasher, clothes washer, clothes dryer, trash compactor, television set, radio, air conditioning unit, commode, bed springs, mattress or other furniture, fixture or appliance which by reason of mechanical or physical defects can no longer be used for its intended purpose and which is either not serving a functional purpose or use or is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher.
(8) 'Junked motor vehicle' means a motor vehicle, or any part thereof which: (a) Is discarded, wrecked, ruined, scrapped or dismantled; (b) cannot pass the state inspection required by article sixteen, chapter seventeen-c of this code; and (c) is either not serving a functional purpose or use or is not in an enclosed building, a licensed salvage yard or the actual possession of a demolisher: Provided, That a motor vehicle, or major part thereof, shall not be considered a junked motor vehicle if: (a) The owner of the motor vehicle is storing the motor vehicle on the owner's property; (b) the motor vehicle is being stored for the purpose of using its parts on other motor vehicles owned by the owner; (c) the owner owns other motor vehicles similar to the motor vehicle being stored; and (d) the owner is a business licensed to do business in the state of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale.
(9) 'Licensed salvage yard' means a salvage yard licensed under article twenty-three of this chapter.
(10) 'Motor vehicle' means a vehicle which is or was self-propelled, including, but not limited to, automobiles, trucks, buses and motorcycles.
(11) 'Person' means a natural person, corporation, firm, partnership, association or society and the plural as well as the singular.

§17-24A-2. Abandonment of motor vehicle prohibited; inoperative household appliances prohibited in certain places; penalty.

(a) No person shall, within this state, abandon a motor vehicle or major part thereof upon the right-of-way of any public highway, upon any other public property or upon any private property without the consent of the owner or person in control of the property, or upon property owned or controlled by that person, unless it be at a licensed salvage yard or at the business establishment of a demolisher, or a business licensed to do business in the state of West Virginia and not in the primary business of offering motor vehicles or parts thereof for sale. Any person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced and fined as set forth below.
(b) No person shall, within this state, place or abandon any inoperative household appliance upon the right-of-way of any public highway or upon any other public property; nor shall any person, within this state, place or abandon any inoperative household appliance upon any private property unless it be at a licensed salvage yard, solid waste facility, other business authorized to accept ~~such~~ solid waste or at the business establishment of a demolisher. Any person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be sentenced and fined as set forth below.
(c) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle, or inoperative household appliance does not exceed one hundred pounds in weight or twenty-seven cubic feet in size is subject to a fine of not less than fifty dollars nor more than one thousand dollars or, in the discretion of the court, sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property or waters of the state, as designated by the court, for not less than eight nor more than sixteen hours, or both.
(d) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle or inoperative household appliance is greater than one hundred pounds in weight or twenty-seven cubic feet in size, but less than five hundred pounds in weight or two hundred sixteen cubic feet, is subject to a fine of not less than five hundred dollars nor more than two thousand dollars or, in the discretion of the court, may be sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property or waters of the state, as designated by the court, for not less than sixteen nor more than thirty-two hours, or both.
(e) Any person who is guilty of a misdemeanor as described in this section and the abandoned motor vehicle, junked motor vehicle or inoperative household appliance is greater than five hundred pounds in weight or two hundred sixteen cubic feet in size is subject to a fine not less than twenty- five hundred dollars or not more than twenty-five thousand dollars or confinement in a county or regional jail for not more than one year, or both. In addition, the violator may be guilty of creating or contributing to an open dump as defined in section two, article fifteen, chapter twenty-two of this code and subject to the enforcement provisions of section fifteen of said article.
(f) Any person convicted of a second or subsequent violation of this section is subject to double the authorized range of fines and community service for the subsection violated.
(g) The sentence of litter cleanup shall be verified by ~~conservation officers~~ natural resources police officers from the Division of Natural Resources or environmental inspectors from the ~~division~~ Department of Environmental Protection. Any defendant receiving the sentence of litter cleanup shall provide within a time to be set by the court written acknowledgment from a ~~conservation officer~~ natural resources police officer or environmental inspector that the sentence has been completed and the litter has been disposed of lawfully.
(h) Any person who has been found by the court to have willfully failed to comply with the terms of a litter cleanup sentence imposed by the court pursuant to this section is subject to, at the discretion of the court, double the amount of the original fines and community service penalties.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.

ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF CERTIFICATES OF TITLE.

|17A-3-23. Registration plates to state, county, municipal and other governmental vehicles; use for undercover activities.

(a) Any motor vehicle designed to carry passengers, owned or leased by the State of West Virginia, or any of its departments, bureaus, commissions or institutions, except vehicles used by the Governor, Treasurer, three vehicles per elected office of the board of Public Works, vehicles operated by the State Police, not to exceed five vehicles operated by the office of the Secretary of Military Affairs and Public Safety, not to exceed five vehicles operated by the Division of Homeland Security and Emergency Management, vehicles operated by ~~conservation officers~~ natural resources police officers of the Division of Natural Resources, not to exceed ten vehicles operated by the arson investigators of the office of State Fire Marshal, not to exceed two vehicles operated by the Division of Protective Services, not to exceed sixteen vehicles operated by inspectors of the office of the Alcohol Beverage Control Commissioner and vehicles operated by probation officers employed under the Supreme Court of Appeals may not be operated or driven by any person unless it has displayed and attached to the front thereof, in the same manner as regular motor vehicle registration plates are attached, a plate of the same size as the regular registration plate, with white lettering on a green background bearing the words 'West Virginia' in one line and the words 'State Car' in another line and the lettering for the words 'State Car' shall be of sufficient size to be plainly readable from a distance of one hundred feet during daylight.
The vehicle shall also have attached to the rear a plate bearing a number and any other words and figures as the Commissioner of Motor Vehicles shall prescribe. The rear plate shall also be green with the number in white.
(b) On registration plates issued to vehicles owned by counties, the color shall be white on red with the word 'County' on top of the plate and the words 'West Virginia' on the bottom. On any registration plates issued to a city or municipality, the color shall be white on blue with the word 'City' on top and the words 'West Virginia' on the bottom: Provided, That after the thirty-first day of December, two thousand six, registration plates issued to a city or municipality law-enforcement department shall include blue lettering on a white background with the word 'West Virginia' on top of the plate and shall be further designed by the commissioner to include a law-enforcement shield together with other insignia or lettering sufficient to identify the motor vehicle as a municipal law- enforcement department motor vehicle. The colors may not be reversed and shall be of reflectorized material. The registration plates issued to counties, municipalities and other governmental agencies authorized to receive colored plates hereunder shall be affixed to both the front and rear of the vehicles. Every municipality shall provide the commissioner with a list of law-enforcement vehicles operated by the law-enforcement department of the municipality, unless otherwise provided in this section, and a fee of ten dollars for each vehicle submitted by the first day of July, two thousand six.
(c) Registration plates issued to vehicles operated by county sheriffs shall be designed by the commissioner in cooperation with the sheriffs' association with the word 'Sheriff' on top of the plate and the words 'West Virginia' on the bottom. The plate shall contain a gold shield representing the sheriff's star and a number assigned to that plate by the commissioner. Every county sheriff shall provide the commissioner with a list of vehicles operated by the sheriff, unless otherwise provided in this section, and a fee of ten dollars for each vehicle submitted by the first day of July, two thousand two.
(d) The commissioner is authorized to designate the colors and design of any other registration plates that are issued without charge to any other agency in accordance with the motor vehicle laws.
(e) Upon application, the commissioner is authorized to issue a maximum of five Class A license plates per applicant to be used by county sheriffs and municipalities on law-enforcement vehicles while engaged in undercover investigations.
(f) The commissioner is authorized to issue an unlimited number of license plates per applicant to authorized drug and violent crime task forces in the State of West Virginia when the chairperson of the control group of a drug and violent crime task force signs a written affidavit stating that the vehicle or vehicles for which the plates are being requested will be used only for official undercover work conducted by a drug and violent crime task force.
(g) The commissioner is authorized to issue twenty Class A license plates to the Criminal Investigation Division of the Department of Revenue for use by its investigators.
(h) The commissioner may issue a maximum of ten Class A license plates to the Division of Natural Resources for use by ~~conservation officer~~s natural resources police officers. The commissioner shall designate the color and design of the registration plates to be displayed on the front and the rear of all other state-owned vehicles owned by the Division of Natural Resources and operated by ~~conservation officer~~s natural resources police officers.
(i) The commissioner is authorized to issue an unlimited number of Class A license plates to the Commission on Special Investigations for state-owned vehicles used for official undercover work conducted by the Commission on Special Investigations. The commissioner is authorized to issue a maximum of two Class A plates to the Division of Protective Services for state-owned vehicles used by the Division of Protective Services in fulfilling its mission.
(j) No other registration plate may be issued for, or attached to, any state-owned vehicle.
(k) The Commissioner of Motor Vehicles shall have a sufficient number of both front and rear plates produced to attach to all state-owned cars. The numbered registration plates for the vehicles shall start with the number 'five hundred' and the commissioner shall issue consecutive numbers for all state-owned cars.
(l) It is the duty of each office, department, bureau, commission or institution furnished any vehicle to have plates as described herein affixed thereto prior to the operation of the vehicle by any official or employee.
(m) The commissioner may issue special registration plates for motor vehicles titled in the name of the Division of Public Transit or in the name of a public transit authority as defined in this subsection and operated by a public transit authority or a public transit provider to transport persons in the public interest. For purposes of this subsection, 'public transit authority' means an urban mass transportation authority created pursuant to the provisions of article twenty-seven, chapter eight of this code or a nonprofit entity exempt from federal and state income taxes under the Internal Revenue Code and whose purpose is to provide mass transportation to the public at large. The special registration plate shall be designed by the commissioner and shall display the words 'public transit' or words or letters of similar effect to indicate the public purpose of the use of the vehicle. The special registration plate shall be issued without charge.
(n) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than one hundred dollars. Magistrates have concurrent jurisdiction with circuit courts for the enforcement of this section.

CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 4. ACCIDENTS.

§17C-4-16. Accidents involving state and municipal property; reports to be provided.

Whenever a report of a motor vehicle accident prepared by a member of the West Virginia State Police, ~~conservation officer~~ natural resources police officer of the Division of Natural Resources, a member of a county sheriff's department or a municipal police officer, in the regular course of their duties, indicates that as a result of ~~such~~ the accident damage has occurred to any bridge, sign, guardrail or other property, exclusive of licensed motor vehicles, a copy of ~~such~~ the report shall, in the case of ~~such~~ property belonging to the Division of Highways, be provided to the Commissioner of the Division of Highways, and, in the case of ~~such~~ property belonging to a municipality, be provided to the mayor of that municipality. The copies of ~~such~~ the reports shall be provided to the commissioner or mayor, as applicable, without cost to them.

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.

(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 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.
(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 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) 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, 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.
(f) 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 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 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) 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) 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) 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~~ 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.
(j) 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.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-7. Tuition and fee waivers for children and spouses of officers, firefighters, National Guard personnel, reserve personnel and active military duty personnel killed in the line of duty.

(a) Each state institution of higher education shall waive tuition and fees for any person who is the child or spouse of an individual who:
(1) Was employed or serving as:
(A) A law-enforcement officer as defined in section one, article twenty-nine, chapter thirty of this code;
(B) A correctional officer at a state penal institution;
(C) A parole officer;
(D) A probation officer;
(E) A ~~conservation officer~~ natural resources police officer; or
(F) A registered firefighter; and
(2) Was killed in the line of duty while:
(A) Employed by the state or any political subdivision of the state; or
(B) A member of a volunteer fire department serving a political subdivision of this state.
(b) Each state institution of higher education shall waive tuition and fees for any person who is the child or spouse of:
(1) A National Guard member or a member of a reserve component of the armed forces of the United States who is a resident of this state and is killed in the line of duty. The member is considered to have been killed in the line of duty if death resulted from performing a duty required by his or her orders or commander while in an official duty status, other than on federal active duty, authorized under federal or state law; or
(2) A person on federal or state active military duty who is a resident of this state and is killed in the line of duty. The person is considered to have been killed in the line of duty if death resulted from performance of a duty required by his or her orders or commander while in an official duty status.
(c) Any waiver granted pursuant to this section is subject to the following:
(1) The recipient may attend any undergraduate course if classroom space is available;
(2) The recipient has applied and been admitted to the institution;
(3) The recipient has applied for and submitted the Free Application for Federal Student Aid;
(4) The recipient has exhausted all other sources of student financial assistance dedicated solely to tuition and fees that exceed other grant assistance that are available to him or her, excluding student loans;
(5) Waiver renewal is contingent upon the recipient continuing to meet the academic progress standards established by the institution.
(d) The state institution of higher education may require the person to pay:
(1) Special fees, including any laboratory fees, if the fees are required of all other students taking a single course or that particular course; and
(2) Parking fees.
(e) The governing boards may promulgate rules:
(1) For determining the availability of classroom space;
(2) As each considers necessary to implement this section; and
(3) Regarding requirements for attendance, which may not exceed the requirements for other students.
(f) The governing boards may extend to persons attending courses and classes under this section any rights, privileges or benefits extended to other students which it considers appropriate.
CHAPTER 19. AGRICULTURE.

ARTICLE 20A. VACCINATION OF DOGS AND CATS FOR RABIES.

§19-20A-7. Enforcement of article.

The enforcement of the provisions of this article shall be in the hands of the sheriff of each county, any of his deputies, constables, ~~conservation commission officers, commonly known as game wardens~~ natural resources police officers, and, if deemed necessary, there shall be a special officer to be appointed by the county commission, who is authorized, empowered, and directed to inspect rabies, pick up dogs and cats and dispose of dogs which are not taxable or not vaccinated according to this article. The sheriff of each county can have one or more sittings, if deemed necessary, in each district of the county, at which he shall be present or have present one of his deputies or the special officer above provided for, to take charge of all delinquent dogs and cats and homeless dogs and cats that are not vaccinated. The assessor of each county, or one of his deputies, shall accompany the veterinarian, doctor, or the one who administers the vaccine in these sittings for the purpose of collecting taxes on dogs. All dogs which are not vaccinated and for which taxes are unpaid shall become the responsibility of the sheriff to catch and dispose of as is provided by law.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 1. ORGANIZATION AND ADMINISTRATION.

20-1-13. Law enforcement and legal services.
The director shall select and designate a competent and qualified person to be ~~department law-enforcement officer~~ the chief natural resources police officer, who shall have the title of ~~chief conservation officer~~ colonel and ~~who shall~~ be responsible for the prompt, orderly and effective enforcement of all of the provisions of this chapter. Under the supervision of the director and subject to personnel qualifications and requirements otherwise prescribed in this chapter, the ~~chief conservation officer~~ chief natural resources police officer shall be responsible for the selection, training, assignment, distribution and discipline of ~~conservation officers~~ natural resources police officers and the effective discharge of their duties in carrying out the law-enforcement policies, practices and programs of the ~~department~~ division in compliance with the provisions of article seven of this chapter and other controlling laws. Except as otherwise provided in this chapter, ~~he or she and his or her conservation officers~~ natural resources police officers are hereby authorized to enter into and upon private lands and waters to investigate complaints and reports of conditions, conduct, practices and activities considered to be adverse to and violative of the provisions of this chapter and to execute writs and warrants and make arrests thereupon.
The attorney general and his or her assistants and the prosecuting attorneys of the several counties shall render to the director, without additional compensation, ~~such~~ the legal services as the director may require of them in the discharge of his or her duties and the execution of his or her powers under and his or her enforcement of the provisions of this chapter. The director, in an emergency and with prior approval of the attorney general, may employ an attorney to act in proceedings wherein criminal charges are brought against personnel of the department because of action in line of duty. For ~~such~~ the attorney services, a reasonable sum, not exceeding two thousand five hundred dollars, may be expended by the director in any one case.
The director, if he or she deems the action necessary, may request the attorney general to appoint an assistant attorney general, who shall perform, under the supervision and direction of the attorney general, the duties as may be required of him or her by the director. The attorney general, in pursuance of the request, may select and appoint an assistant attorney general to serve at the will and pleasure of the attorney general, and the assistant shall receive a salary to be paid out of any funds made available for that purpose by the Legislature to the department.

ARTICLE 2. WILDLIFE RESOURCES.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.

Except as authorized by the director, it is unlawful at any time for any person to:
(1) Shoot at or to shoot any wild bird or animal unless it is plainly visible to him or her;
(2) Dig out, cut out or smoke out, or in any manner take or attempt to take, any live wild animal or wild bird out of its den or place of refuge except as may be authorized by rules promulgated by the director or by law;
(3) Make use of, or take advantage of, any artificial light in hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal, or to attempt to do so, while having in his or her possession or subject to his or her control, or for any person accompanying him or her to have in his or her possession or subject to his or her control, any firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or animal: Provided, That it is lawful to hunt or take raccoon, opossum or skunk by the use of artificial light subject to the restrictions set forth in this subdivision: Provided, however, That it is lawful to hunt or take coyotes by the use of amber- or red-colored artificial light subject to the restrictions set forth in this subdivision. No person is guilty of a violation of this subdivision merely because he or she looks for, looks at, attracts or makes motionless a wild bird or wild animal with or by the use of an artificial light, unless at the time he or she has in his or her possession a firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or wild animal, or unless the artificial light (other than the head lamps of an automobile or other land conveyance) is attached to, a part of or used from within or upon an automobile or other land conveyance.
Any person violating the provisions of this subdivision is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than five hundred dollars and shall be imprisoned in jail for not less than ten days nor more than one hundred days;
(4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane, or other airborne conveyance, an automobile, or other land conveyance, or from a motor-driven water conveyance, except as authorized by rules promulgated by the director;
(5) Take any beaver or muskrat by any means other than by trap;
(6) Catch, capture, take or kill by seine, net, bait, trap or snare or like device of any kind any wild turkey, ruffed grouse, pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the nest or eggs of any wild bird or have in his or her possession the nest or eggs unless authorized to do so under rules promulgated by or under a permit issued by the director;
(8) Except as provided in section six of this article, carry an uncased or loaded gun in any of the woods of this state except during the open firearms hunting season for wild animals and nonmigratory wild birds within any county of the state unless he or she has in his or her possession a permit in writing issued to him or her by the director: Provided, That this section shall not prohibit hunting or taking of unprotected species of wild animals and wild birds and migratory wild birds, during the open season, in the open fields, open water and open marshes of the state;
(9) Have in his or her possession a crossbow with a nocked bolt, a loaded firearm or a firearm from the magazine of which all shells and cartridges have not been removed, in or on any vehicle or conveyance, or its attachments, within the state, except as may otherwise be provided by law or regulation. Except as hereinafter provided, between five o'clock postmeridian of one day and seven o'clock antemeridian, eastern standard time of the day following, any unloaded firearm or crossbow, being lawfully carried in accordance with the foregoing provisions, shall be so carried only when in a case or taken apart and securely wrapped. During the period from the first day of July to the thirtieth day of September, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms are permissible only from eight-thirty o'clock postmeridian to five o'clock antemeridian, eastern standard time: Provided, That the time periods for carrying unloaded and uncased firearms are extended for one hour after the postmeridian times and one hour before the antemeridian times established above if a hunter is preparing to or in the process of transporting or transferring the firearms to or from a hunting site, campsite, home or other place of abode;
(10) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday on private land without the written consent of the landowner any wild animals or wild birds except when a big game season opens on a Monday, the Sunday prior to that opening day will be closed for any taking of wild animals or birds after five o'clock antemeridian on that Sunday: Provided, That traps previously and legally set may be tended after the hour of five o'clock antemeridian on Sunday and the person so doing may carry only a twenty-two caliber firearm for the purpose of humanely dispatching trapped animals. Any person violating the provisions of this subdivision is guilty of a misdemeanor and, upon conviction thereof, in addition to any fines that may be imposed by this or other sections of this code, shall be subject to a one hundred dollar fine;
(11) Hunt with firearms or long bow while under the influence of intoxicating liquor;
(12) Hunt, catch, take, kill, injure or pursue a wild animal or bird with the use of a ferret;
(13) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(14) Catch, take, kill or attempt to catch, take or kill any fish at any time by any means other than by rod, line and hooks with natural or artificial lures unless otherwise authorized by law or rules issued by the Director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be lawful;
(15) Employ or hire, or induce or persuade, by the use of money or other things of value, or by any means, any person to hunt, take, catch or kill any wild animal or wild bird except those species on which there is no closed season, or to fish for, catch, take or kill any fish, amphibian or aquatic life which is protected by the provisions of this chapter or rules of the director or the sale of which is prohibited;
(16) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States for the protection of migratory birds and wild mammals concluded, respectively, the sixteenth day of August, one thousand nine hundred sixteen, and the seventh day of February, one thousand nine hundred thirty-six, except during the time and in the manner and numbers prescribed by the federal Migratory Bird Treaty Act, 16 U.S.C. §703, et seq., and regulations made thereunder;
(17) Kill, take, catch or have in his or her possession, living or dead, any wild bird other than a game bird; or expose for sale or transport within or without the state any bird except as aforesaid. No part of the plumage, skin or body of any protected bird shall be sold or had in possession for sale except mounted or stuffed plumage, skin, bodies or heads of the birds legally taken and stuffed or mounted, irrespective of whether the bird was captured within or without this state, except the English or European sparrow (passer domesticus), starling (sturnus vulgaris) and cowbird (molothrus ater), which may not be protected and the killing thereof at any time is lawful;
(18) Use dynamite or any like explosive or poisonous mixture placed in any waters of the state for the purpose of killing or taking fish. Any person violating the provisions of this subdivision is guilty of a felony and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned for not less than six months nor more than three years, or both fined and imprisoned;
(19) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;
(20) Have a crossbow in the woods or fields or use a crossbow to hunt for, take or attempt to take any wildlife, unless the person possesses a Class Y permit;
(21) Take or attempt to take turkey, bear, elk or deer with any arrow unless the arrow is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;
(22) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow or an arrow which would affect wildlife by any chemical action;
(23) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;
(24) Permit any dog owned by him or her or under his or her control to chase, pursue or follow upon the track of any wild animal or wild bird, either day or night, between the first day of May and the fifteenth day of August next following: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner or by his or her bona fide tenant or tenants or upon the grounds or lands of another person with his or her written permission or on public lands at any time: Provided, however, That nonresidents may not train dogs in this state at any time except during the legal small game hunting season: Provided, further, That the person training said dogs does not have firearms or other implements in his or her possession during the closed season on wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;
(25) Conduct or participate in a field trial, shoot-to-retrieve field trial, water race or wild hunt hereafter referred to as trial: Provided, That any person, group of persons, club or organization may hold the trial at any time of the year upon obtaining a permit as is provided in section fifty-six of this article. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in said trial and make same readily available for inspection by any ~~conservation officer~~ natural resources police officer upon request;
(26) Except as provided in section four of this article, hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the open season established by rule of the director as authorized by subdivision (6), section seven, article one of this chapter;
(27) Hunting on public lands on Sunday after five o'clock antemeridian is prohibited; and
(28) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement which wildlife can be taken, on private lands on Sunday after the hour of five o'clock antemeridian: Provided, That the provisions of this subdivision do not apply in any county until the county commission of the county holds an election on the question of whether the provisions of this subdivision prohibiting hunting on Sunday shall apply within the county and the voters approve the allowance of hunting on Sunday in the county. The election is determined by a vote of the resident voters of the county in which the hunting on Sunday is proposed to be authorized. The county commission of the county in which Sunday hunting is proposed shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication shall be the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.
On the local option election ballot shall be printed the following:
Shall hunting on Sunday be authorized in ________ County?
[ ] Yes[ ] No
(Place a cross mark in the square opposite your choice.)
Any local option election to approve or disapprove of the proposed authorization of Sunday hunting within a county shall be in accordance with procedures adopted by the commission. The local option election may be held in conjunction with a primary or general election or at a special election. Approval shall be by a majority of the voters casting votes on the question of approval or disapproval of Sunday hunting at the election.
If a majority votes against allowing Sunday hunting, no election on the issue may be held for a period of one hundred four weeks. If a majority votes 'yes', no election reconsidering the action may be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which Sunday hunting is authorized. The petition may be in any number of counterparts. The election shall take place at the next primary or general election scheduled more than ninety days following receipt by the county commission of the petition required by this subsection: Provided, That the issue may not be placed on the ballot until all statutory notice requirements have been met. No local law or regulation providing any penalty, disability, restriction, regulation or prohibition of Sunday hunting may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this subdivision.
(29) Hunt or conduct hunts for a fee where the hunter is not physically present in the same location as the wildlife being hunted within West Virginia.
§20-2-7. Hunting, trapping or fishing on lands of another; damages and compensation.

(a) It is unlawful for any person to shoot, hunt, fish or trap upon the fenced, enclosed or posted lands of another person; or to peel trees or timber, build fires or do any other act in connection with shooting, hunting, fishing or trapping on ~~such~~ the lands without written permission in his or her possession from the owner, tenant or agent of the owner.
(b) Any person who hunts, traps or fishes on land without the permission of the owner, tenant or agent of the owner is guilty of a misdemeanor and liable to the owner or person suffering damage for all costs and damages for: (1) Killing or injuring any domestic animal or fowl; (2) cutting, destroying or damaging any bars, gates or fence or any part of the property; or (3) leaving open any bars or gates resulting in damage to the property.
(c) The owner, tenant or agent of the owner may arrest a person violating this section and immediately take him or her before a magistrate. The owner, tenant or agent of the owner is vested with the powers and rights of a ~~conservation officer~~ natural resources police officer for these purposes. The officers charged with the enforcement of the provisions of this chapter shall enforce the provisions of this section if requested to do so by the owner, tenant or agent of the owner, but not otherwise.
(d) The provisions of subsections (b) and (c) of this section related to criminal penalties and being subject to arrest are inapplicable to a person whose dog, without the person's direction or encouragement, travels onto the fenced, enclosed or posted land of another in pursuit of an animal or wild bird: Provided, That the pursuit does not result in the taking of game from the fenced, enclosed or posted land and does not result in the killing of domestic animals or fowl or other damage to or on the fenced, enclosed or posted land.

§20-2-15. Permit to kill deer or other wildlife causing damage to cultivated crops, trees, commercial nurseries, homeowners' shrubbery and vegetable gardens; weapon restrictions.

(a) Whenever it shall be found that deer or other wildlife are causing damage to cultivated crops, fruit trees, commercial nurseries, homeowners' trees, shrubbery or vegetable gardens, the owner or lessee of the lands on which ~~such~~ damage is done may report ~~such~~ the finding to the ~~conservation officer~~ natural resources police officer or biologist of the county in which ~~such~~ the lands are located or to the director. The director shall then investigate the reported damage and if found substantial, shall issue a permit to the owner or lessee to kill one or more deer or other wildlife in the manner prescribed by the director.
(b) In addition to the foregoing, the director shall establish procedures for the issuance of permits or other authorization necessary to control deer or other wildlife causing property damage.
(c) All persons attempting to kill deer or other wildlife pursuant to this section are subject to the same minimum caliber restrictions and other firearm restrictions and the same minimum bow poundage and other bow and arrow restrictions that apply when hunting the same animal species during the regular hunting seasons.

§20-2-16. Dogs chasing deer.

No person shall permit his dog to hunt or chase deer. A ~~conservation officer~~ natural resources police officer shall take into possession any dog known to have hunted or chased deer and the director shall advertise that ~~such~~ the dog is in his or her possession, giving a description of the dog and stating the circumstances under which it was taken. ~~Such~~ The notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty- nine of this code, and the publication area for ~~such~~ the publication shall be the county. He shall hold the dog for a period of ten days after the date of the publication. If, within ten days, the owner does not claim the dog, the director shall destroy it. In this event the cost of keeping and advertising shall be paid by the director. If, within ten days, the owner claims the dog, he may repossess it on the payment of costs of advertising and the cost of keep, not exceeding fifty cents per day. A ~~conservation officer~~ natural resources police officer, or any officer or employee of the director authorized to enforce the provisions of this section, after a bona fide but unsuccessful effort to capture dogs detected chasing or pursuing deer, may kill ~~such~~ the dogs.

§20-2-22. Tagging, removing, transporting and reporting bear, bobcat, deer, wild boar and wild turkey.

(a) Each person killing a bear, bobcat, deer, wild boar or wild turkey found in a wild state shall either attach a completed game tag to the animal or remain with the animal and have upon his or her person a completed game tag before removing the carcass in any manner from where it was killed.
(b) While transporting the carcass of a bear, bobcat, deer, wild boar or wild turkey from where it was killed, each person shall either attach a completed game tag to the animal or have upon his or her person a completed game tag.
(c) Upon arriving at a residence, camp, hunting lodge, vehicle or vessel each person shall attach a game tag to the killed bear, bobcat, deer, wild boar or wild turkey. The game tag shall remain on the carcass until it is retagged by a ~~conservation officer~~ natural resources police officer or an official checking station.
(d) If a person who does not possess a game tag kills a bear, bobcat, deer, wild boar or wild turkey, he or she shall make a tag. The tag shall bear the name, address and, if applicable, the license number of the hunter and the time, date and county of killing.
(e) The carcass of a wild turkey shall be delivered to a ~~conservation officer~~ natural resources police officer or an official checking station for checking and retagging before it is either skinned or transported beyond the boundaries of the county adjacent to that in which the kill was made.
(f) The fresh skin and head or carcass of the deer shall be delivered to a ~~conservation officer~~ natural resources police officer or an official checking station for checking and retagging before it is transported beyond the boundaries of the county adjacent to that in which the kill was made.
(g) A person who kills a bear shall treat the carcass and remains in accordance with the provisions of section twenty-two-a of this article.
(h) For each violation of this section a person is subject to the penalties provided in this article.

§20-2-22a. Hunting, tagging and reporting bear; procedures applicable to property destruction by bear; penalties.

(a) A person in any county of this state may not hunt, capture, or kill any bear, or have in his or her possession any bear or bear parts, except during the hunting season for bear and in the manner designated by rules promulgated by the Division of Natural Resources and as provided in this section. For the purposes of this section, bear parts include, but are not limited to, the pelt, gallbladder, skull and claws of bear.
(b) A person who kills a bear shall, within twenty-four hours after the killing, deliver the bear or fresh skin to a ~~conservation officer~~ natural resources police officer or checking station for tagging. A Division of Natural Resources tag shall be affixed to it before any part of the bear may be transported more than seventy-five miles from the point of kill. The Division of Natural Resources tag shall remain on the skin until it is tanned or mounted. Any bear or bear parts not properly tagged shall be forfeited to the state for disposal to a charitable institution, school or as otherwise designated by the Division of Natural Resources.
(c) It is unlawful:
(1) To hunt bear without a bear damage stamp as prescribed in section forty-four-b of this article, in addition to a hunting license as prescribed in this article;
(2) To hunt a bear with:
(A) A shotgun using ammunition loaded with more than one solid ball;
(B) a rifle of less than twenty-five caliber using rimfire ammunition; or,
(C) a crossbow;
(3) To kill or attempt to kill any bear through the use of poison, explosives, snares, steel traps or deadfalls other than as authorized in this section;
(4) To shoot at or kill:
(A) A bear weighing less than seventy-five pounds live weight or fifty pounds field dressed weight, after removal of all internal organs;
(B) Any bear accompanied by a cub; or,
(C) Any bear cub so accompanied, regardless of its weight;
(5) To possess any part of a bear not tagged in accordance with the provisions of this section;
(6) To enter a state game refuge with firearms for the purpose of pursuing or killing a bear except under the direct supervision of division personnel;
(7) To hunt bear with dogs or to cause dogs to chase bear during seasons other than those designated by the Division of Natural Resources for the hunting of bear;
(8) To pursue a bear with a pack of dogs other than the pack used at the beginning of the hunt once the bear is spotted and the chase has begun;
(9) To possess, harvest, sell or purchase bear parts obtained from bear killed in violation of this section;
(10) To organize for commercial purposes or to professionally outfit a bear hunt or to give or receive any consideration whatsoever or any donation in money, goods or services in connection with a bear hunt notwithstanding the provisions of sections twenty-three and twenty-four of this article; or
(11) For any person who is not a resident of this state to hunt bear with dogs or to use dogs in any fashion for the purpose of hunting bear in this state except in legally authorized hunts.
(d) The following provisions apply to bear destroying property:
(1) (A) Any property owner or lessee who has suffered damage to real or personal property, including loss occasioned by the death or injury of livestock or the unborn issue of livestock, caused by an act of a bear may complain to any ~~conservation officer~~ natural resources police officer of the Division of Natural Resources for protection against the bear.
(B) Upon receipt of the complaint, the officer shall immediately investigate the circumstances of the complaint. If the officer is unable to personally investigate the complaint, he or she shall designate a wildlife biologist to investigate on his or her behalf.
(C) If the complaint is found to be justified, the officer or designated person may, together with the owner and other residents, proceed to hunt, destroy or capture the bear that caused the property damage: Provided, That only the ~~conservation officer~~ natural resources police officer or the wildlife biologist shall determine whether to destroy or capture the bear and whether to use dogs to capture or destroy the bear: Provided, however, That, if out-of-state dogs are used in the hunt, the owners of the dogs are the only nonresidents permitted to participate in hunting the bear.
(2) (A) When a property owner has suffered damage to real or personal property as the result of an act by a bear, the owner shall file a report with the Director of the Division of Natural Resources. The report shall state whether or not the bear was hunted and destroyed and, if so, the sex, weight and estimated age of the bear. The report shall also include an appraisal of the property damage occasioned by the bear duly signed by three competent appraisers fixing the value of the property lost.
(B) The report shall be ruled upon and the alleged damages examined by a commission comprised of the complaining property owner, an officer of the division and a person to be jointly selected by the officer and the complaining property owner.
(C) The division shall establish the procedures to be followed in presenting and deciding claims under this section in accordance with article three, chapter twenty-nine-a of this code.
(D) All claims shall be paid in the first instance from the Bear Damage Fund provided in section forty-four-b of this article. In the event the fund is insufficient to pay all claims determined by the commission to be just and proper, the remainder due to owners of lost or destroyed property shall be paid from the special revenue account of the Division of Natural Resources.
(3) In all cases where the act of the bear complained of by the property owner is the killing of livestock, the value to be established is the fair market value of the livestock at the date of death. In cases where the livestock killed is pregnant, the total value shall be the sum of the values of the mother and the unborn issue, with the value of the unborn issue to be determined on the basis of the fair market value of the issue had it been born.
(e) Criminal penalties. -- (1) Any person who commits a violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000, which fine is not subject to suspension by the court, confined in jail not less than thirty nor more than one hundred days, or both fined and confined. Further, the person's hunting and fishing licenses shall be suspended for two years.
(2) Any person who commits a second violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,000 nor more than $7,500, which fine is not subject to suspension by the court, confined in jail not less than thirty days nor more than one year, or both fined and confined. The person's hunting and fishing licenses shall be suspended for life.
(3) Any person who commits a third or subsequent violation of the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000, which fine is not subject to suspension by the court, imprisoned in a correctional facility not less than one year nor more than five years, or both fined and imprisoned.
§20-2-56a. Bird dog training permit.
The director may issue a permit to train bird dogs on wild birds or game birds, provided:
(1) The fee for the permit is ten dollars.
(2) The training shall be on private land containing a minimum of five acres in a single tract. The permittee must own the land, lease the land or have written permission of landowner for the training.
(3) The birds permitted to be used for the training of dogs are quail and pigeons. The quail must be purchased from a licensed commercial game farm. Pigeons may be purchased from a licensed commercial game farm or trapped within the state at any time as long as the person conducting the trapping is legally licensed to do so and also holds the appropriate permit. Each trap must be identified by a waterproof tag attached to the trap that bears the name, address and telephone number of the trapper.
(4) The permittee must retain the receipt for two years of all birds purchased from a commercial game farm licensee.
(5) The location where the birds are held and all records pertaining to the purchase and dates of training may be inspected by a ~~conservation officer~~ natural resources police officer.
(6) No more than thirty birds may be held by the permittee at any given time. All birds must have a uniquely numbered leg band attached. The leg band must remain with the birds until consumption or until the birds are legally disposed.
(7) Birds held under this permit shall be housed and cared for in accordance with the requirements of applicable rules.
(8) The use of the birds held under this permit shall include the release, recapture and/or the shooting of the birds in conjunction with the training of bird dogs.
(9) The person holding birds in captivity under the authority of this permit and the person training his or her bird dog must possess a bird dog training permit.
(10) All other laws and rules governing hunting, trapping, shooting and training apply.
(11) The director may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to further restrict bird dog training.
(12) Any person violating any provision of this law is subject to the penalties prescribed in section nine, article seven, chapter twenty of this code.

§20-2-57a. Negligent shooting, wounding or killing of another person while hunting; duty to render aid; criminal violations; suspension of hunting and fishing license; criminal penalties; administrative penalties.

(a) It is unlawful for any person, while engaged in the act of hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill another person.
(b) Anyone who negligently shoots, wounds or injures another person while hunting, not resulting in serious bodily injury or death, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1000 or confined in jail not more than six months, or both fined and confined.
(c) Anyone who negligently shoots and injures another person while hunting, resulting in serious bodily injury or death, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2500 or confined in jail for not more than one year, or both fined and confined.
(d) For purposes of this section, serious bodily injury means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.
(e) (1) Any person who, while hunting, discharges a firearm or arrow and knows or has reason to know that the discharge has caused bodily harm to another person shall:
(A) Immediately investigate the extent of the person's injuries; and
(B) Render immediate reasonable assistance to the injured person.
(2) As used in this subsection, 'reasonable assistance' means aid appropriate to the circumstances, including by not limited to obtaining or attempting to obtain assistance from a ~~conservation or~~ natural resources police officer, law enforcement officer, 911 dispatchers, emergency medical providers and medical personnel.
(f) Any person who fails to render aid and assistance to an injured person as required by subsection (e), to an injured party who has not sustained a serious bodily injury is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 and confined in jail for not more than one year, or both fined and confined.
(g) Any person who fails to render aid as required by subsection (e) to an injured party who has sustained a serious bodily injury or dies as a result of their injuries is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a correctional facility for not less than one year nor more than five years, or both fined and imprisoned.
(h) Any person found guilty of committing a misdemeanor under this section shall have their hunting and fishing licenses suspended for a period of five years from the date of conviction or the date of release from confinement, whichever is later.
(i) Any person found guilty of committing a felony offense under this section shall have their hunting and fishing licenses suspended for a period of ten years from the date of conviction or the date of release from incarceration, whichever is later.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
Part I. Law Enforcement, Procedures and Penalties.

§20-7-1. Chief natural resources police officer; natural resources police officers; special and emergency natural resources police officers; subsistence allowance; expenses.

(a) The division's law-enforcement policies, practices and programs shall be under the immediate supervision and direction of the division law-enforcement officer selected by the director and designated as chief ~~conservation officer~~ natural resources police officer as provided in section thirteen, article one of this chapter.
(b) Under the supervision of the director, the chief ~~conservation officer~~ natural resources police officer shall organize, develop and maintain law-enforcement practices, means and methods geared, timed and adjustable to seasonal, emergency and other needs and requirements of the division's comprehensive natural resources program. All division personnel detailed and assigned to law-enforcement duties and services under this section shall be known and designated as ~~conservation officers~~ natural resources police officers and shall be under the immediate supervision and direction of the chief ~~conservation officer~~ natural resources police officer. All ~~conservation officers~~ natural resources police officers shall be trained, equipped and conditioned for duty and services wherever and whenever required by division law-enforcement needs.
(c) The chief ~~conservation officer~~ natural resources police officer, acting under supervision of the director, is authorized to select and appoint emergency ~~conservation officers~~ natural resources police officers for a limited period of time for effective enforcement of the provisions of this chapter when considered necessary because of emergency or other unusual circumstances. The emergency ~~conservation officers~~ natural resources police officers shall be selected from qualified civil service personnel of the division, except in emergency situations and circumstances when the director may designate officers, without regard to civil service requirements and qualifications, to meet law- enforcement needs. Emergency ~~conservation officers~~ natural resources police officers shall exercise all powers and duties prescribed in section four of this article for full-time salaried ~~conservation officers~~ natural resources police officers except the provisions of subdivision (8) of said section.
(d) The chief ~~conservation officer~~ natural resources police officer, acting under supervision of the director, is also authorized to select and appoint as special ~~conservation officers~~ natural resources police officers any full-time civil service employee who is assigned to, and has direct responsibility for management of, an area owned, leased or under the control of the division and who has satisfactorily completed a course of training established and administered by the chief ~~conservation officer~~ natural resources police officer, when ~~such~~ the action is considered necessary because of law-enforcement needs. The powers and duties of a special ~~conservation officer~~ natural resources police officer, appointed under this provision, is the same within his or her assigned area as prescribed for full-time salaried ~~conservation officers~~ natural resources police officers. The jurisdiction of the person appointed as a special ~~conservation officer~~ natural resources police officer, under this provision, shall be limited to the division area or areas to which he or she is assigned and directly manages.
(e) The chief ~~conservation officer~~ natural resources police officer, acting under supervision of the director, is also authorized to appoint as special ~~conservation officers~~ natural resources police officers any full-time civil service forest fire control personnel who have satisfactorily completed a course of training established and administered by the chief ~~conservation officer~~ natural resources police officer. The jurisdiction of forest fire control personnel appointed as special ~~conservation officers~~ natural resources police officers is limited to the enforcement of the provisions of article three of this chapter.
(f) The chief ~~conservation officer~~ natural resources police officer, with the approval of the director, has the power and authority to revoke any appointment of an emergency ~~conservation officer~~ natural resources police officer or of a special ~~conservation officer~~ natural resources police officer at any time.
(g) ~~Conservation officers~~ natural resources police officers are subject to seasonal or other assignment and detail to duty whenever and wherever required by the functions, services and needs of the division.
(h) The chief ~~conservation officer~~ natural resources police officer shall designate the area of primary residence of each ~~conservation officer~~ natural resources police officer, including himself or herself. Since the area of business activity of the division is actually anywhere within the territorial confines of the State of West Virginia, actual expenses incurred shall be paid whenever the duties are performed outside the area of primary assignment and still within the state.
(i) ~~Conservation officers~~ Natural resources police officers shall receive, in addition to their base pay salary, a minimum monthly subsistence allowance for their required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment in the amount of $130 each month. This subsistence allowance does not apply to special or emergency ~~conservation officers~~ natural resources police officers appointed under this section.
(j) After June 30, 2010, all those full time law-enforcement officers employed by the Division of Natural Resources as conservation officers shall be titled and known as natural resources police officers. Wherever in this code the term 'conservation officer,' or its plural, it means 'natural resources police officer,' or its plural, respectively.

§20-7-1a. Natural resources police officer salary increase based on length of service.

(a) Effective the first day of July, two thousand two, each ~~conservation officer~~ natural resources police officer shall receive and be entitled to an increase in salary based on length of service, including that heretofore and hereafter served as a ~~conservation officer~~ natural resources police officer as follows: For five years of service with the division, a ~~conservation officer~~ natural resources police officer shall receive a salary increase of six hundred dollars per year payable during his or her next three years of service and a like increase at three-year intervals thereafter, with these increases to be cumulative. A salary increase shall be based upon years of service as of the first day of July of each year and may not be recalculated until the first day of July of the following year.
Conservation officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid ~~such~~ salaries as the same length of service will entitle them to receive under the provisions hereof.
(b) This section does not apply to special or emergency ~~conservation officers~~ natural resources police officers appointed under the authority of section one of this article.

§20-7-1b. Designation of certain federal law-enforcement officers as special natural resources police officers.

The Legislature finds that it is in the mutual interest of the department and certain land management agencies of the United States to cooperate in the enforcement of state statutes and regulations within and adjacent to units of the National Park System, National Forests and U.S. Army Corps of Engineers projects located within the state of West Virginia.
Accordingly, the director of the department of natural resources may enter into a written agreement with a federal agency providing for the appointment of employees of the federal agency as special ~~conservation officers~~ natural resources police officers and setting forth the terms and conditions within which ~~such~~ the federal employees may exercise the powers and duties of special ~~conservation officers~~ natural resources police officers. The terms and conditions in the agreement shall grant a special ~~conservation officer~~ natural resources police officer appointed pursuant to the agreement the same powers and duties as prescribed for a full-time salaried ~~conservation officer~~ natural resources police officer of the department, but shall limit a special ~~conservation officer~~ natural resources police officer in the exercise of his or her powers and duties to areas within the boundaries of the federal units to which ~~such~~ the officer is assigned in his or her federal employment and to situations outside the boundaries of ~~such~~ the federal units where ~~such~~ the exercise is for the mutual aid of ~~conservation officers~~ natural resources police officers as set forth in the agreement.
Any federal employee whose duties involve the enforcement of the criminal laws of the United States and who possesses a valid law-enforcement certification issued by a federal land management agency which certifies the meeting of requirements at least equivalent to the law- enforcement officer training requirements promulgated pursuant to article twenty-nine, chapter thirty of this code, may be certified under the provisions of said article twenty-nine and appointed as a special ~~conservation officer~~ natural resources police officer under the provisions of this section. Any special ~~conservation officer~~ natural resources police officer so appointed may not receive compensation or benefits from the state or any political subdivisions thereof for the performance of his or her duties as a special ~~conservation officer~~ natural resources police officer.

§20-7-1c. Natural resources police officer, ranks, salary schedule, base pay, exceptions.

(a) Notwithstanding any provision of this code to the contrary, the ranks within the law-enforcement section of the division of natural resources are colonel, lieutenant colonel, major, captain, lieutenant, sergeant, corporal, ~~conservation officer~~ natural resources police officer first class, senior ~~conservation officer~~ natural resources police officer, ~~conservation officer~~ natural resources police officer and ~~conservation officer-in-training~~ natural resources police officer-in-training. Each officer while in uniform shall wear the insignia of rank as provided by the chief ~~conservation officer~~ natural resources police officer.
(b) Beginning on the first day of July, two thousand two, and continuing thereafter, ~~conservation officers~~ natural resources police officers shall be paid the minimum annual salaries based on the following schedule:
ANNUAL SALARY SCHEDULE (BASE PAY)
SUPERVISORY AND NONSUPERVISORY RANKS
~~Conservation Officer-In-Training~~ Natural Resources
Police Officer In Training (first year until end
of probation)$26,337
~~Conservation Officer~~ Natural Resources Police Officer
(second year)$29,768
~~Conservation Officer~~ Natural Resources Police
Officer (third year)$30,140
Senior ~~Conservation Officer~~ Natural Resources
Police Officer (fourth and fifth year)$30,440
Senior ~~Conservation Officer~~ Natural Resources
Police Officer First Class (after fifth year)$32,528
Senior ~~Conservation Officer~~ Natural Resources
Police Officer (after tenth year)$33,104
Senior ~~Conservation Officer~~ Natural Resources
Police Officer (after fifteenth year)$33,528
Corporal (after sixteenth year)$36,704
Sergeant$40,880
First Sergeant$42,968
Lieutenant$47,144
Captain$49,232
Major$51,320
Lieutenant Colonel$53,408
Colonel
~~Conservation officers~~ Natural resources police officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid salaries as the same length of service will entitle them to receive under the provisions of this section.
(c) This section does not apply to special or emergency ~~conservation officers~~ natural resources police officers appointed under the authority of section one of this article.
(d) Nothing in this section prohibits other pay increases as provided for under section two, article five, chapter five of this code: Provided, That any across-the-board pay increase granted by the Legislature or the governor will be added to, and reflected in, the minimum salaries set forth in this section; and that any merit increases granted to an officer over and above the annual salary schedule listed in subsection (b) of this section are retained by an officer when he or she advances from one rank to another.

§20-7-1d. Awarding service revolver upon retirement; disposal of service weapon when replaced due to routine wear; and furnishing uniform for burial.

(a) Upon the retirement of any full-time salaried ~~conservation officer~~ natural resources police officer, the chief ~~conservation officer~~ natural resources police officer shall award to the retiring ~~conservation officer~~ natural resources police officer his or her service revolver, without charge, upon determining:
(1) That the ~~conservation officer~~ natural resources police officer is retiring honorably with at least twenty-five years of recognized law-enforcement service as determined by the chief ~~conservation officer~~ natural resources police officer; or
(2) That ~~such conservation officer~~ the natural resources police officer is retiring with less than twenty-five years of service based upon a determination that he or she is totally physically disabled as a result of service with the division.
(b) Notwithstanding the provisions of subsection (a) of this section, the chief ~~conservation officer~~ natural resources police officer shall not award a service revolver to any ~~conservation officer~~ natural resources police officer who has been declared mentally incompetent by a licensed physician or any court of law, or who, in the opinion of the chief ~~conservation officer~~ natural resources police officer, constitutes a danger to any person or the community.
(c) The disposal of law-enforcement service weapons, when replaced due to routine wear, shall not fall under the jurisdiction of the agency for surplus property, within the Purchasing Division of the Department of Administration. The chief ~~conservation officer~~ natural resources police officer may offer these surplus weapons for sale to any active or retired Division of Natural Resources law- enforcement officer, at fair market value, with the proceeds from any sales used to offset the cost of the new weapons.
(d) Upon the death of any current or honorably retired ~~conservation officer~~ natural resources police officer, the chief ~~conservation officer~~ natural resources police officer shall, upon request of the deceased officer's family, furnish a full uniform for burial of the deceased officer.
§20-7-1e. Natural resources police officer performing duties for private persons; penalty; providing extraordinary law enforcement or security services by contract.

(a) Any ~~conservation officer~~ natural resources police officer who hires himself or herself to any person, firm or corporation to guard private property, or who demands or receives from any person, firm or corporation any money or other thing of value as a consideration for the performance of, or the failure to perform, his or her duties under the regulations of the chief ~~conservation officer~~ natural resources police officer and the provisions of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than two hundred dollars, or confined in the county or regional jail for not more than four months, or both fined and confined.
(b) Notwithstanding any other provision of this section to the contrary, the chief ~~conservation officer~~ natural resources police officer may contract with the public, military or private entities to provide extraordinary law enforcement or security services by the Division of Natural Resources when it is determined by the chief ~~conservation officer~~ natural resources police officer to be in the public interest. The chief ~~conservation officer~~ natural resources police officer may assign personnel, equipment or facilities, and the division shall be reimbursed for the wages, overtime wages, benefits and costs of providing the contract services as negotiated between the parties. The compensation paid to ~~conservation officers~~ natural resources police officers by virtue of contracts provided in this section shall be paid from a special account and are excluded from any formulation used to calculate an employee's benefits. All requests for obtaining extraordinary law enforcement or security services shall be made to the chief ~~conservation officer~~ natural resources police officer in writing and shall explain the funding source and the authority for making the request. No officer of the division is required to accept any assignment made pursuant to this subsection. Every officer assigned to duty hereunder shall be paid according to the hours and overtime hours actually worked notwithstanding that officer's status as exempt personnel under the 'Federal Labor Standards Act' or applicable state statutes. Every contract entered into under this subsection shall contain the provision that in the event of public disaster or emergency where the reassignment to official duty of the officer is required, neither the division nor any of its officers or other personnel are liable for any damages incurred as the result of the reassignment. Further, any entity contracting with the Division of Natural Resources under this section shall also agree as part of that contract to hold harmless and indemnify the state, Division of Natural Resources and its personnel from any liability arising out of employment under that contract.
The director is authorized to propose legislative rules, subject to approval by the Legislature, in accordance with chapter twenty-nine-a of this code relating to the implementation of contracts entered into pursuant to this subsection: Provided, That the rules expressly prohibit private employment of officers in circumstances involving labor disputes.

§20-7-1f. Awarding service revolver to special natural resources police officers upon retirement; furnishing uniform for burial.

(a) Upon the retirement of any special ~~conservation officer~~ natural resources police officer selected and appointed pursuant to section one of this article, the chief of the officer's section shall award to the retiring special ~~conservation officer~~ natural resources police officer his or her service revolver, without charge, upon determining:
(1) That the special ~~conservation officer~~ natural resources police officer is retiring honorably with at least twenty-five years of recognized special law-enforcement service as determined by the chief ~~conservation officer~~ natural resources police officer; or
(2) That ~~such~~ special ~~conservation officer~~ natural resources police officer is retiring with less than twenty-five years of service based upon a determination that he or she is totally physically disabled as a result of service with the division.
(b) Notwithstanding the provisions of subsection (a) of this section, the section chief shall not award a service revolver to any special ~~conservation officer~~ natural resources police officer who has been declared mentally incompetent by a licensed physician or any court of law, or who, in the opinion of the chief ~~conservation officer~~ natural resources police officer constitutes a danger to any person or the community.
(c) Upon the death of any current or honorably retired special ~~conservation officer~~ natural resources police officer, the respective chief shall, upon request of the deceased officer's family, furnish a full uniform for burial of the deceased officer.

§20-7-2. Qualifications of natural resources police officers; right of retired officer to receive complete standard uniform; right of retired officer to acquire uniform; and right of retired officer to acquire badge.

In addition to civil service qualifications and requirements, persons selected as ~~conservation officers~~ natural resources police officers shall have reached their eighteenth birthday at the time of appointment, be in good physical condition and of good moral character, temperate in habits and shall not have been convicted of a felony. Whenever possible and practicable, preference in selection of ~~conservation officers~~ natural resources police officers shall be given honorably discharged United States military personnel. Each ~~conservation officer~~ natural resources police officer, before entering upon the discharge of his duties, shall take and subscribe to the oath of office prescribed in article IV, section 5 of the Constitution of West Virginia, which executed oath shall be filed with the director.
The director shall prescribe the kind, style and material of uniforms to be worn by ~~conservation officers~~ natural resources police officers. Uniforms and other equipment furnished to the ~~conservation officer~~s natural resources police officers shall be and remain the property of the state, except as hereinafter provided in this section.
A ~~conservation officer~~ natural resources police officer, upon honorable retirement, shall be authorized to maintain at his or her own cost a complete standard uniform from the law-enforcement agency of which he or she was a member, and shall be issued an identification card indicating his or her honorable retirement from the law-enforcement agency. The uniform may be worn by the officer in retirement only on the following occasions: Police Officer's Memorial Day, Law Enforcement Appreciation Day, at the funeral of a law-enforcement officer or during any other police ceremony. The honorably retired officer is authorized to acquire a badge of the law-enforcement agency from which he or she is retired with the word 'retired' placed on it.

§20-7-3. Powers and duties of other law officers.

The sheriffs and constables of the several counties of the state, police officers of any city and members of the department of public safety shall be vested, within their respective jurisdictions, with all of the powers and authority of ~~conservation officers~~ natural resources police officers without requirement of any additional oath or bond. Immediately upon making any arrest or executing any process under provisions of this chapter, each ~~such~~ officer shall report thereon to the director.
§20-7-4. Powers and duties of natural resources police officers.
(a) ~~Conservation officers~~ Natural resources police officers and other persons authorized to enforce the provisions of this chapter are under the supervision and direction of the director in the performance of their duties.
(b) ~~Conservation officers~~ Natural resources police officers have statewide jurisdiction and have authority to:
(1) Arrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of the laws of this state, in the presence of the officer, but no arrest may be made where any form of administrative procedure is prescribed by this chapter for the enforcement of the provisions of this chapter;
(2) Carry ~~such~~ arms and weapons as may be prescribed by the director in the course and performance of their duties, but no license or other authorization shall be required for this privilege;
(3) Search and examine, in the manner provided by law, any boat, vehicle, automobile, conveyance, express or railroad car, fish box, fish bucket or creel, game bag or game coat or other place in which hunting and fishing paraphernalia, wild animals, wild birds, fish, amphibians or other forms of aquatic life could be concealed, packed or conveyed whenever they have reason to believe that they would thereby secure or discover evidence of the violation of the provisions of this chapter;
(4) Execute and serve a search warrant, notice or other process of law issued under the authority of this chapter or other law relating to wildlife, forests, and all other natural resources, by a magistrate or court having jurisdiction in the same manner, with the same authority and with the same legal effect as a sheriff;
(5) Require the operator of any motor vehicle or other conveyance on or about the public highways or roadways, or in or near the fields and streams of this state, to stop for the purpose of allowing the ~~conservation officer~~s natural resources police officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing warrants, notices or processes, in the same manner as sheriffs;
(7) Enter private lands or waters within the state while engaged in the performance of their official duties;
(8) Arrest on sight, without warrant or other court process, subject to the limitations set forth in subdivision (1) of this section, any person or persons committing a criminal offense in violation of any law of this state in the presence of the officer on any state-owned lands and waters and lands and waters under lease by the Division of Natural Resources and all national forest lands, waters and parks and U.S. Corps of Army Engineers' properties within the boundaries of the State of West Virginia and, in addition to the authority conferred in other subdivisions of this section, execute all arrest warrants on these state and national lands, waters and parks and U.S. Corps of Army Engineers' properties, consistent with the provisions of article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away, or cause to be cut, damaged or carried away, any timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant. Any person convicted of cutting, damaging or carrying away or causing to be cut, damaged or carried away any timber, trees, logs, posts, fruits, nuts, growing plants or products of growing plants is liable to the owner in the amount of three times the value of the timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant, in addition to and notwithstanding any other penalties by law provided by section thirteen, article three, chapter sixty-one of this code;
(10) Make a complaint in writing before any court or officer having jurisdiction, and procure and execute the warrant, when the officer knows or has reason to believe that a person has violated a law of this state. The actions of the ~~conservation officer~~ natural resources police officer have the same force and effect as if made by a sheriff;
(11) Serve and execute warrants for the arrest of any person and warrants for the search of any premises, buildings, properties or conveyances issued by a properly constituted authority in the same manner, with the same authority, and with the same legal effect, as a sheriff; and
(12) Do all things necessary to carry into effect the provisions of this chapter.
§20-7-12b. Boating safety education certificate.
(a) Except as otherwise provided in subsection (c) of this section, beginning on the first day of January, two thousand one, no person born on or after the thirty-first day of December, one thousand nine hundred eighty-six, may operate a motorboat or personal watercraft on any waters of this state without first having obtained a certificate of boating safety education from this or any other state, which certificate was obtained by satisfactorily completing a course of instruction in boating safety education administered by the United States coast guard auxiliary; the United States power squadron; the West Virginia Division of Natural Resources; any person certified to teach the course administered by West Virginia natural resources boating safety education section personnel; or any person authorized to teach the course prescribed by the national association of state boating law administrators in this or any other state.
(b) Any person who is subject to subdivision (a) of this section shall possess the certificate of boating safety education when operating a motorboat or personal watercraft on the waters of this state and shall show the certificate on demand of any West Virginia ~~conservation officer~~ natural resources police officers or other law-enforcement officer authorized to enforce the provisions of this chapter.
(c) The following persons are exempt from the requirements of subsection (a) of this section:
(1) A person who is a nonresident of this state and who is visiting the state for sixty days or less in a motorboat or personal watercraft from another state if that person:
(A) Is fifteen years of age or older; and
(B) Has been issued a boating safety education certificate by his or her state of residence in accordance with the criteria recommended by the national association of state boating law administration.
(2) A person who is visiting the state for ninety days or less in a motorboat or personal watercraft from a country other than the United States;
(3) A person who is operating a motorboat or personal watercraft in connection with commercial purposes; and
(4) A person who is operating a motorboat or personal watercraft which was purchased by the person within the previous forty-five-day period and who has not been previously charged with a violation of any provision of this chapter involving the use or registration of a motorboat or personal watercraft.
(d) The division shall issue a certificate of boating safety education to a person who:
(1) Passes any course prescribed in subsection (a) of this section; or
(2) Passes a boating safety equivalency examination administered by persons authorized to administer a boating safety education course as outlined in subsection (a) of this section. Upon request, the division shall provide, without charge, boating safety education materials to persons who plan to take the boating safety equivalency examination.
(e) No person who owns a motorboat or personal watercraft or who has charge over a motorboat or personal watercraft may authorize or knowingly permit it to be operated in violation of subsection (a) of this section.
(f) The provisions of subsection (a) of this section may only be enforced as a secondary action when the officer detains an operator of a motorboat or personal watercraft upon probable cause of a violation of another provision of this code or rules adopted in accordance with the code. A person may not be taken immediately to a court or detention facility solely for a violation of subsection (a) of this section.
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL ACTION PLAN.

§22-15A-19. Recycling assessment fee; regulated motor carriers; dedication of proceeds; criminal penalties.

(a) Imposition. -- A recycling assessment fee is hereby levied and imposed upon the disposal of solid waste at all solid waste disposal facilities in this state, to be collected at the rate of two dollars per ton or part of a ton of solid waste. The fee imposed by this section is in addition to all other fees levied by law.
(b) Collection, return, payment and records. -- The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not that person owns the solid waste, and the fee shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner:
(1) The fee imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility;
(2) The operator shall remit the fee imposed by this section to the Tax Commissioner on or before the fifteenth day of the month next succeeding the month in which the fee accrued. Upon remittance of the fee, the operator shall file returns on forms and in the manner as prescribed by the Tax Commissioner;
(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until they are remitted to the Tax Commissioner;
(4) If any operator fails to collect the fee imposed by this section, he or she is personally liable for the amount that he or she failed to collect, plus applicable additions to tax, penalties and interest imposed by article ten, chapter eleven of this code;
(5) Whenever any operator fails to collect, truthfully account for, remit the fee or file returns with the fee as required in this section, the Tax Commissioner may serve written notice requiring the operator to collect the fees which become collectible after service of the notice, to deposit the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of the fees in the account until remitted to the Tax Commissioner. The notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner;
(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section;
(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers of the association or corporation are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fee and any additions to tax, penalties and interest imposed by article ten, chapter eleven of this code may be enforced against them and against the association or corporation which they represent; and
(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in the form required by the Tax Commissioner in accordance with the rules of the Tax Commissioner.
(c) Regulated motor carriers. -- The fee imposed by this section is a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under chapter twenty-four-a of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within fourteen days, reflect the cost of the fee in the motor carrier's rates for solid waste removal service. In calculating the amount of the fee to the motor carrier, the Commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.
(d) Definition. -- For purposes of this section, 'Solid waste Disposal Facility' means any approved solid waste facility or open dump in this state and includes a transfer station when the solid waste collected at the transfer station is not finally disposed of at a solid waste facility within this state that collects the fee imposed by this section.
Nothing in this section authorizes in any way the creation or operation of or contribution to an open dump.
(e) Exemptions. -- The following transactions are exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the person who owns, operates or leases the solid waste disposal facility if it is used exclusively to dispose of waste originally produced by that person in his or her regular business or personal activities or by persons utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on the days and times designated by the Secretary by rule as exempt from the fee imposed pursuant to section eleven, article fifteen, chapter twenty-two of this code.
(f) Procedure and administration. -- Notwithstanding section three, article ten, chapter eleven of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code applies to the fee imposed by this section with like effect as if the act were applicable only to the fee imposed by this section and were set forth in extenso in this section.
(g) Criminal penalties. -- Notwithstanding section two, article nine, chapter eleven of this code, sections three through seventeen, article nine, chapter eleven of this code apply to the fee imposed by this section with like effect as if the sections were the only fee imposed by this section and were set forth in extenso in this section.
(h) Dedication of proceeds. -- The proceeds of the fee collected pursuant to this section shall be deposited by the Tax Commissioner, at least monthly, in a special revenue account designated as the Recycling Assistance Fund which is hereby continued and transferred to the Department of Environmental Protection. The Secretary shall allocate the proceeds of the fund as follows:
(1) Fifty percent of the total proceeds shall be provided in grants to assist municipalities, counties and other interested parties in the planning and implementation of recycling programs, public education programs and recycling market procurement efforts, established pursuant to this article. The Secretary shall promulgate rules, in accordance with chapter twenty-nine-a of this code, containing application procedures, guidelines for eligibility, reporting requirements and other matters considered appropriate: Provided, That persons responsible for collecting, hauling or disposing of solid waste who do not participate in the collection and payment of the solid waste assessment fee imposed by this section in addition to all other fees and taxes levied by law for solid waste generated in this state which is destined for disposal, shall not be eligible to receive grants under the provisions of this article;
(2) Twelve and one-half percent of the total proceeds shall be expended for personal services and benefit expenses of full-time salaried ~~conservation officers~~ natural resources police officers;
(3) Twelve and one-half percent of the total proceeds shall be directly allocated to the solid waste planning fund;
(4) Twelve and one-half percent of the total proceeds shall be transferred to the solid waste reclamation and environmental response fund, established pursuant to section eleven, article fifteen, chapter twenty-two of this code, to be expended by the Department of Environmental Protection to assist in the funding of the pollution prevention and open dumps program (PPOD) which encourages recycling, reuse, waste reduction and clean-up activities; and
(5) Twelve and one-half percent of the total proceeds shall be deposited in the hazardous waste emergency response fund established in article nineteen of this chapter.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 2A. STATE AERONAUTICS COMMISSION.

§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 shall be deemed 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 ~~such~~ 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 ~~such~~ the blood test, then the law-enforcement officer making ~~such~~ 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 Division of Public Safety of this state; (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 ~~conservation officer~~ 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 ~~such~~ the sheriff or any municipal law-enforcement officer of another municipality within the county wherein the arrest is made may, upon the request of ~~such~~ the arresting law-enforcement officer and in his or her presence, conduct ~~such~~ a secondary test and the results of ~~such~~ the test may be used in evidence to the same extent and in the same manner as if ~~such~~ the test had been conducted by ~~such~~ the arresting law-enforcement officer. Only the person actually administering or conducting ~~such~~ the test shall be competent to testify as to the results and the veracity of ~~such~~ the test.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-12. Powers and duties of state fire marshal.
(a) Enforcement of laws. -- The state fire marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to enforce all laws of the state having to do with:
(1) Prevention of fire;
(2) The storage, sale and use of any explosive, combustible or other dangerous article or articles in solid, flammable liquid or gas form;
(3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
(4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;
(5) The suppression of arson; and
(6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
(b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, ~~conservation officer~~ natural resources police officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
(c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
(d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the state fire code.
(e) Right of entry. -- The state fire marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.
(f) Investigations. -- The state fire marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of ~~such~~ the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
(g) Testimony. -- The state fire marshal, in making an inspection or investigation when in his or her judgment ~~such~~ the proceedings are necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of ~~such~~ the statements or testimony so taken to the prosecuting attorney for the county wherein the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give any ~~such~~ statement under this subsection.
(h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full- time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article is hereby authorized and empowered and any person deputized pursuant to subsection (j) of this section may be authorized and empowered by the state fire marshal:
(1) To arrest any person anywhere within the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
(2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over ~~such~~ the violation.
(3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over ~~such~~ the violation.
(i) Witnesses and oaths. -- The state fire marshal is empowered and authorized to issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her ~~such~~ papers as he or she may require in making ~~such~~ the examination. The state fire marshal is hereby authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in any matter or proceeding aforesaid shall be considered perjury and shall be punishable as ~~such~~ perjury.
(j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and ~~such~~ the investigations as may be directed by the state fire marshal, and the carrying out of ~~such~~ orders as may be prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief thereof or his or her single designated assistant may be so deputized.
(k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
(l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any ~~such~~ information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall report in writing to the owner or insurer the result of the examination regarding the property.
(m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
(n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are hereby authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the state fire marshal in ~~such~~ the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of authority by the person is inappropriate.
Violations for which citations may be issued include, but are not limited to:
(1) Overcrowding places of public assembly;
(2) Locked or blocked exits in public areas;
(3) Failure to abate a fire hazard;
(4) Blocking of fire lanes or fire department connections; and
(5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise fire-fighting equipment, fire detection equipment and fire alarm systems.
(o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of ~~such~~ the person has been provided, in the case of a paid municipal fire department by the municipality wherein the fire department is located, or in the case of a volunteer fire department, by the county commission of the county wherein the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
(p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the county or regional jail not more than ninety days, or both fined and imprisoned.
Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 29. LAW-ENFORCEMENT TRAINING AND CERTIFICATION.
§30-29-1. Definitions.
For the purposes of this article, unless a different meaning clearly appears in the context:
'Approved law-enforcement training academy' means any training facility which is approved and authorized to conduct law-enforcement training as provided in this article;
'Chief executive' means the Superintendent of the State Police; the chief ~~conservation officer~~ natural resources police officer of the Division of Natural Resources; the sheriff of any West Virginia county; any administrative deputy appointed by the chief ~~conservation officer~~ natural resources police officer of the Division of Natural Resources; or the chief of any West Virginia municipal law-enforcement agency;
'County' means the fifty-five major political subdivisions of the state;
'Exempt rank' means any noncommissioned or commissioned rank of sergeant or above;
'Governor's committee on crime, delinquency and correction' or 'Governor's committee' means the Governor's committee on crime, delinquency and correction established as a state planning agency pursuant to section one, article nine, chapter fifteen of this code;
'Law-enforcement officer' means any duly authorized member of a law-enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality thereof, other than parking ordinances, and includes those persons employed as campus police officers at state institutions of higher education in accordance with the provisions of section five, article four, chapter eighteen-b of this code, and persons employed by the Public Service Commission as motor carrier inspectors and weight enforcement officers charged with enforcing commercial motor vehicle safety and weight restriction laws although those institutions and agencies may not be considered law-enforcement agencies. The term also includes those persons employed as rangers by the Hatfield-McCoy regional recreation authority in accordance with the provisions of section six, article fourteen, chapter twenty of this code, although the authority may not be considered a law-enforcement agency: Provided, That the subject rangers shall pay the tuition and costs of training. As used in this article, the term 'law-enforcement officer' does not apply to the chief executive of any West Virginia law-enforcement agency or any watchman or special ~~conservation officer~~ natural resources police officer;
'Law-enforcement official' means the duly appointed chief administrator of a designated law-enforcement agency or a duly authorized designee;
'Municipality' means any incorporated town or city whose boundaries lie within the geographic boundaries of the state;
'Subcommittee' or 'law-enforcement training subcommittee' means the subcommittee of the Governor's committee on crime, delinquency and correction created by section two of this article; and
'West Virginia law-enforcement agency' means any duly authorized state, county or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof: Provided, That neither the Hatfield-McCoy regional recreation authority, the Public Service Commission nor any state institution of higher education may be deemed a law-enforcement agency.
CHAPTER 36. ESTATES AND PROPERTY.
ARTICLE 8A. UNCLAIMED STOLEN PROPERTY HELD BY LAW-ENFORCEMENT AGENCIES.
§36-8A-1. Definitions.
For purposes of this article, unless a different meaning clearly appears in the context:
(a) 'Chief executive' means the superintendent of the state police; the chief ~~conservation officer~~ natural resources police officer of the Division of Natural Resources; the sheriff of any West Virginia county; or the chief of any West Virginia municipal law-enforcement agency.
(b) 'Item' means any item of unclaimed stolen property or any group of similar items considered together for purposes of reporting, donation, sale or destruction under this article.
(c) 'Law-enforcement agency' means any duly authorized state, county or municipal organization of the state of West Virginia employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality thereof: Provided, That neither the Hatfield-McCoy regional recreation authority nor any state institution of higher education may be deemed a law-enforcement agency.
(d) 'Nonprofit organization' means: (i) Any nonprofit charitable organization; or (ii) any agency of the state of West Virginia the purpose of which is to provide health, recreational or educational services to citizens of the state of West Virginia.
(e) 'Stolen property' means any tangible personal property, including cash and coins, which is confiscated by or otherwise comes into the custody of a law-enforcement agency during the course of a criminal investigation or the performance of any other authorized law-enforcement activity, whether or not the property was or can be proven to have been stolen.
(f) 'Treasurer' means the state treasurer or his or her authorized designee for purposes of the administration of this article.
(g) 'Unclaimed stolen property' is stolen property:
(1) Which has been held by a law-enforcement agency for at least six months, during which time the rightful owner has not claimed it;
(2) For which the chief executive determines that there is no reasonable likelihood of its being returned to its rightful owner; and
(3) Which the chief executive determines to have no evidentiary value."
And by amending the title of the bill to read as follows:
H. B. 3110 - "A Bill to amend and reenact §15-2-12, §15-10-3, §15-10A-2, §17-24A-1, §17- 24A-2, §17A-3-23, §17C-4-16, §17C-5-4, §18B-10-7, §19-20A-7, §20-1-13, §20-2-5, §20-2-7, §20- 2-15, §20-2-16, §20-2-22, §20-2-22a, §20-2-56a, §20-2-57a, §20-7-1, §20-7-1a, §20-7-1b, §20-7-1c, §20-7-1d, §20-7-1e, §20-7-1f, §20-7-2, §20-7-3, §20-7-4, §20-7-12b, §22-15A-19, §29-2A-11a, §29- 3-12, §30-29-1 and §36-8A-1 of the Code of West Virginia, 1931, all relating to renaming conservation officers to be natural resources police officers."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 262), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Hutchins, J. Miller and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3110) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4176, Relating to credentialing of health care practitioners,
.On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page eighteen, section nine, line five, by striking out the word "not".
On page eighteen, section nine, line five, by striking out "January 1, 2012" and inserting in lieu thereof "June 1, 2011".
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4176 - "A Bill to amend and reenact §16-1A-1, §16-1A-2, §16-1A-3, §16-1A-4 and §16-1A-5 of the Code of West Virginia, 1931, as amended, and to amend said code by adding thereto five new sections, designated §16-1A-6, §16-1A-7, §16-1A-8, §16-1A-9 and §16-1A-10, all relating to providing for uniform credentialing for health care practitioners; establishing a single statewide credentialing verification organization and a uniform recredentialing calendar; setting forth legislative findings, defining terms; increasing the membership of the advisory committee; authorizing the Secretary and Insurance Commissioner to, no later than July 1, 2015, select and contract with a qualified credentialing verification organization that will be the sole source for primary source verification for all credentialing entities; reviewing operations of the statewide credentialing verification organization; setting forth qualifications for a credentialing verification organization; giving preference to a credentialing verification organization organized within this state; suspending mandatory use of statewide credentialing verification organization by credentialing entities by the Secretary and Insurance Commissioner for certain failures of the statewide credentialing verification organization; setting forth an application process; providing for the confidentiality of information and exceptions; setting forth legislative rulemaking authority; providing for the establishment by rule of penalties; and granting immunity to credentialing entity for reliance upon information provided by the statewide credentialing verification organization."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 263), and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, McGeehan, Schoen and Shook.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4176) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4352, Authorizing the West Virginia Supreme Court of Appeals to create a Business Court Division within certain circuit court districts.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section fifteen, line twelve, by striking out the word "The" and inserting in lieu thereof the words "Upon the determination to designate business court divisions, the".
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 264), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4352) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates, as follows:
Com. Sub. for H. B. 4425, Developing a pilot program for unlicensed personnel to administer medication in a nursing home.
On motion of Delegate Boggs, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§30-7-20. Pilot program.
The board shall develop a pilot program for unlicensed personnel to administer medication in a nursing home including the development of a training program in cooperation with the West Virginia Board of Practical Nurses and the West Virginia Health Care Association. Prior to implementation of the pilot program, the board shall submit its plans for approval to the Legislative Oversight Commission for Health and Human Resources Accountability for its consideration prior to the 2011 Legislative session. The Board of Nursing shall propose rules for legislative approval in accordance with the provisions of article three, chapter, twenty-nine-a of this code effectuate the provisions of this section."
And by amending the title of the bill to read as follows:
Com. Sub. for H. B. 4425 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-7-20, relating to the development of a pilot program for unlicensed persons to administer medications in a nursing home by the Board of Registered Professional Nurses; requiring approval by the Legislative Oversight Commission on Health and Human Resources Accountability prior to implementation of the pilot; and granting rulemaking authority to the Board of Registered Professional Nurses to effectuate the provisions of the pilot project."
On motion of Delegate Boggs, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 265), and there were--yeas 92, nays 5, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Cowles, Ellem, Ireland, Lane and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4425) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Special Calendar
Third Reading
Com. Sub. for S. B. 337, Requiring Racetrack Video Lottery Fund be used for certain payments; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
On motion of Delegate Louisos the bill was amended on page two, line eleven by inserting the following:
"CHAPTER 9. HUMAN SERVICES.
ARTICLE 4F. SUPPLEMENTAL PERSONAL NEEDS ALLOWANCE FUND.
§9-4F-1. Supplemental Personal Needs Allowance Fund created.
There is created the 'Supplemental Personal Needs Allowance Fund' for the purpose of increasing the monthly personal needs allowance granted to Medicaid recipients who are residents of nursing homes or personal care homes. The fund consists of fifty percent of the funds collected pursuant to legislative rules adopted pursuant to subsection (e), section two, article three, chapter thirty-one-a of this code. The fund shall be in the custody of the State Treasurer and disbursements of the fund shall be made upon requisition signed by the Secretary of the Department of Health and Human Resources to those persons entitled to participate in the fund and in the amounts to each participant that are provided in section three of this article.
§9-4F-2. To whom benefits paid.
To participate in the Supplemental Personal Needs Allowance Fund, an individual must be a recipient of Medicaid and be a resident of a nursing home or personal care home.
§9-4F-3. Computation of benefits.
(a) No later than July 1, 2011, the secretary shall propose a legislative rule that increases the monthly personal needs allowance paid to Medicaid recipients who are residents of nursing homes or personal care homes to $75, including the monthly allowance received from Medicaid on the effective date of this act.
(b) Each individual entitled to participate in the Supplemental Personal Needs Allowance Fund is entitled to receive monthly benefits from the fund in accordance with legislative rules promulgated pursuant to subsection (a) of this section.
§9-4F-4. Supplemental Personal Needs Allowance Fund; how funded.
For the purpose of carrying out the provisions of this article, each quarter the Racing Commission shall transfer funds collected according to the section thirteen, article twenty-three chapter nineteen of this code to the Secretary of the Department of Health and Human Resources, an amount estimated by the secretary to be necessary to carry out the provisions of this article for one year. The money shall be deposited by the secretary into the Supplemental Personal Needs Allowance Fund, as required by this article."
And,
On page fourteen, section thirteen, line two, by striking out the entirety of section thirteen and inserting in lieu thereof:

"Disposition of funds for payment of outstanding and unredeemed pari-mutuel tickets; publication of notice; irredeemable tickets; payment of past obligations.

(a) All moneys held by any licensee for the payment of outstanding and unredeemed pari- mutuel tickets, if not claimed within ninety days after the close of a horse or dog race meeting or the televised racing day, as the case may be, in connection with which the tickets were issued, shall be turned over by the licensee to the racing commission within fifteen days after the expiration of the ninety-day period, and the licensee shall give any information required by the racing commission concerning the outstanding and unredeemed tickets. The moneys shall be deposited by the racing commission in a banking institution of its choice in a special account to be known as 'West Virginia Racing Commission Special Account - Unredeemed Pari-Mutuel Tickets.' Notice of the amount, date and place of each deposit shall be given by the racing commission, in writing, to the state treasurer. The racing commission shall then cause to be published a notice to the holders of the outstanding and unredeemed pari-mutuel tickets, notifying them to present their unredeemed tickets for payment at the principal office of the racing commission within ninety days from the date of the publication of the notice. The notice shall be published within fifteen days following the receipt of the outstanding and unredeemed pari-mutuel ticket moneys by the commission from the licensee as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the horse or dog race meeting was held and the county in which the televised racing day wagering was conducted in this state.
(b) Any outstanding and unredeemed pari-mutuel tickets that are not presented for payment within ninety days from the date of the publication of the notice are thereafter irredeemable, and the moneys theretofore held for the redemption of the pari-mutuel tickets shall become the property of the racing commission and shall be expended as provided in ~~this subsection~~ subsections (c) and (d) of this section. The racing commission shall maintain separate accounts for each licensee and shall record in each separate account the moneys turned over by the licensee and the amount expended at the licensee's track for the purposes set forth in this subsection. ~~The moneys in the West Virginia racing commission special account - unredeemed pari-mutuel tickets shall be expended as follows:~~ (c) In the fiscal year beginning on July 1, 2010, the racing commission shall keep separate the unredeemed pari-mutuel tickets received from each of the two licensee horse racetracks.
(1) The unredeemed pari-mutuel tickets attributable to each licensee horse racetrack together with funds distributed pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code shall be used for the Supplemental Personal Needs Allowance Fund provide for in article four-f, chapter nine of this code: Provided, That the first distribution after the effective date of amendments to this section made during the 2010 regular legislative session shall not occur until February 2011 and then each calendar quarter thereafter.
~~To the owner of the winning horse in any horse race at a horse race meeting held or conducted by any licensee:~~ ~~Provided, That the owner of the horse is at the time of the horse race a bona fide resident of this state, a sum equal to ten percent of the purse won by the horse at that race:~~ ~~Provided, however~~, That in the event there are more than ten races in any performance, the award to the resident owner of the winning horse will be that fractional share of the purse with a numerator of one and a denominator representing the number of races on the day of the performance. The commission may require proof that the owner was, at the time of the race, a bona fide resident of this state. Upon proof by the owner that he or she filed a personal income tax return in this state for the previous two years and that he or she owned real or personal property in this state and paid taxes in this state on real or personal property for the previous two years, he or she shall be presumed to be a bona fide resident of this state; and
~~(2)~~ ~~(B)~~ ~~To the breeder (that is, the owner of the mare) of the winning horse in any horse race at a horse race meeting held or conducted by any licensee:~~ ~~Provided, That the mare foaled in this state, a sum equal to ten percent of the purse won by the horse:~~ ~~Provided, however~~, That in the event there are more than ten races in any performance, the award to the breeder will be that fractional share of the purse with a numerator of one and a denominator representing the number of races on the day of the performance; and
~~(3)~~ ~~(C)~~ ~~To the owner of the stallion which sired the winning horse in any horse race at a horse race meeting held or conducted by any licensee:~~ ~~Provided, That the mare which foaled the winning horse was served by a stallion standing and registered in this state, a sum equal to ten percent of the purse won by the horse:~~ ~~Provided, however~~, That in the event there are more than ten races in any performance, the award to the owner of the stallion will be percentage of the purse based upon the fractional share represented by the number of races on the day of the performance; and
(4) To those horse racing licensees not participating in the thoroughbred development fund authorized in section thirteen-b of this article, the unexpended balance of the licensee's account not expended as provided in subdivisions (1), (2) and (3) of this subsection: ~~Provided, That all moneys distributed under this subdivision shall be expended solely for capital improvements at the licensee's track:~~ ~~Provided, however, That the capital improvements must be approved, in writing, by the West Virginia racing commission before funds are expended by the licensee for that capital improvement; and~~
(d) Any unredeemed pari-mutuel tickets received from licensee dog racetracks shall be combined into a single balance and distributed quarterly to the West Virginia racing commission. The deposit made pursuant to this subsection does not create a continuing obligation of payment except to the extent that there are unredeemed pari-mutuel tickets from the licensee dog racetracks.
(e) The amendments to this section made during the 2010 regular legislative session shall become effective July 1, 2010.
(5) When the moneys in the special account, known as the West Virginia racing commission special account -unredeemed pari-mutuel tickets will more than satisfy the requirements of subdivisions (1), (2), (3) and (4) of this subsection, the West Virginia racing commission shall have the authority to expend the excess moneys from unredeemed horse racing pari-mutuel tickets as purse money in any race conditioned exclusively for West Virginia bred or sired horses, and to expend the excess moneys from unredeemed dog racing pari-mutuel tickets in supplementing purses and establishing stake races and dog racing handicaps at the dog tracks: ~~Provided, That subject to the availability of funds, the commission shall, after the requirements of subdivisions (1), (2), (3) and (4) of this subsection have been satisfied:~~
~~(A) Transfer annually two hundred thousand dollars to the West Virginia racing commission special account - West Virginia greyhound breeding development fund;~~
~~(B) Transfer annually two hundred thousand dollars into a separate account to be used for stakes races for West Virginia bred greyhounds at dog racetracks; and~~
(C) Transfer annually two hundred thousand dollars to a trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to a legislative rule proposed for promulgation by the commission and authorized by the Legislature, as the representative of the majority of the active jockeys in West Virginia, for the purpose of providing health and disability benefits to eligible active or disabled West Virginia jockeys and their dependents in accordance with eligibility criteria established by said organization. For purposes of this section in determining health benefits, an eligible active jockey is one who rides at least one hundred mounts per calendar year of which fifty-one must be in the state of West Virginia: ~~Provided,~~ ~~That a jockey is not eligible for health benefits if he or she receives health benefits from any other state; and~~
(D) After all payments to satisfy the requirements of (A), (B) and (C) of this proviso have been satisfied, the commission shall have authority to transfer one hundred fifty thousand dollars left from all uncashed pari-mutuel tickets to the trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to legislative rule proposed for promulgation by the commission and authorized by the Legislature as the representative of the majority of the active jockeys in West Virginia.
(f) The Racing Commission shall satisfy obligations of the prior enactment of this section for all claims received on purses won on or before June 30, 2010. Claimants must submit all claims on or before July 15, 2010 for verification by the Racing Commission. Claims received after July 15, 2010 are not valid.
(1) A transfer of $2.5 million from the State Excess Lottery Revenue Fund available on the last day of the fiscal year which began July 1, 2009 shall be made to the nonappropriated fund with the State Treasurer known as the Unredeemed Pari-Mutuel Tickets Fund. The Racing Commission shall also transfer to the account with the State Treasurer monies from the racing commission special accounts - unredeemed pari-mutuel tickets for deposits received in each of those accounts that have been credited with unredeemed pari-mutuel tickets for races completed at any licensee racetrack as of June 30, 2010, and any other monies appropriated by the legislature. Unredeemed pari-mutuel tickets for races completed after June 30, 2010 must remain in the special accounts - unredeemed pari-mutuel tickets to satisfy future payments pursuant to this section.
(2) The Racing Commission is authorized to pay claims received for races completed on or before June 30, 2010 without regard to date of deposit or date of claim. Claims shall be paid in date order, with the oldest claims being paid first, until all claims have been satisfied. All payments made pursuant to this subsection for claims received on purses won on or before June 30, 2010 shall extinguish any further obligation by the state with respect to those claims.
(g) The commission shall submit to the legislative auditor a quarterly report and accounting of the income, and expenditures ~~and unobligated balance~~ in the special account created by this section known as the West Virginia racing commission special account - unredeemed pari-mutuel tickets.
~~(d)~~ (h) Nothing contained in this article shall prohibit one person from qualifying for all or more than one of the aforesaid awards or for awards under section thirteen-b of this article.
~~(e)~~ (i) The cost of publication of the notice provided for in this section shall be paid from the funds in the hands of the state treasurer collected from the pari-mutuel pools' tax provided for in section ten of this article, when not otherwise provided in the budget; but no such costs shall be paid unless an itemized account thereof, under oath, be first filed with the state auditor.
~~(f)~~ (j) The racing commission is authorized to promulgate emergency rules, prior to ~~the first day of July, two thousand four~~ September 1, 2010, to incorporate the revisions to this article enacted during the ~~two thousand four~~ 2010 regular legislative session."
Delegate Louisos then asked and obtained unanimous consent that the amendment be withdrawn.
There being no further amendments, the bill was then read a third time.
Delegate Lawrence requested to be excused from voting on the passage of Com. Sub. for S. B. 337 under the provisions of House Rule 49.
The Speaker replied that Delegate was a member of a class of persons possibly to be affected by the passage of the bill but exhibited no direct personal or pecuniary interest therein, and refused to excuse the Lady from voting.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 266), and there were--yeas 86, nays 11, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Border, Carmichael, Lane, Louisos, Shott, Sobonya, Sumner and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 337) passed.
On motion of Delegate White, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 337 - "A Bill to amend and reenact §19-23-10, §19-23-13 and §19-23- 13b of the Code of West Virginia, 1931, as amended; to amend and reenact §29-22-18a of said code; and to amend and reenact §29-22C-27 of said code, all relating to receipts and expenditures of moneys in the conduct of the racing industry in the state generally; providing as an additional purpose for which certain moneys may be used the purpose of greyhound adoption programs to include spaying and neutering; modifying the distribution of funds derived from horse racetrack unredeemed pari-mutuel tickets and other sources to owners, breeders and owners of sires of certain winning horses; providing for the deposit of surplus funds held for those purposes into horse racetrack regular purse funds; removing provisions requiring that certain unexpended balances be paid to certain horse racetrack licensees and expended for certain purposes; combining and distributing funds derived from dog racetrack unredeemed pari-mutuel tickets into the greyhound breeding development fund; removing authority for racing commission to expend certain excess moneys as purse money, to supplement purses and to establish stakes races and racing handicaps; removing requirements that certain moneys from unredeemed pari-mutuel tickets be allocated and paid by the racing commission into the greyhound breeding development fund, into a special account to be used for certain stakes races, into a trust to provide health and disability benefits to eligible active or disabled West Virginia jockeys, and into an unspecified trust administered by an organization representative of jockeys; providing for the payment of claims received on purses won on or before June 30, 2010; transferring a specified amount of funds from the state excess lottery revenue fund and additional amounts from certain special accounts to pay for those claims; extinguishing obligation of the state for payments made on certain claims; removing the requirement that a certain racing commission report to the legislative auditor include certain information; authorizing the racing commission to promulgate emergency rules; specifying which racing secretary is to be a member of a certain committee; removing expired requirements for the submission of a report; providing for the contingent distribution of an annual amount from the state excess lottery revenue fund into a certain thoroughbred racetrack purse fund, into certain thoroughbred racetrack unredeemed pari-mutuel tickets accounts, and into a certain greyhound breeding development fund; and changing the allocation of a certain distribution from the lottery racetrack table games fund to the purse funds of the thoroughbred racetracks from an equal allocation among the tracks to a pro rata distribution."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Reordering of the Calendar
Delegate Boggs announced that the Committee on Rules had transferred Com. Sub. for S. B. 462, S. B. 511, S. B. 512, S. B. 519, S. B. 574, Com. Sub. for S. B. 624, S. B. 627 and S. B. 633, on third reading, Special Calendar, to the House Calendar.
Third Reading
Com. Sub. for S. B. 362, Prohibiting providing false information to obtain controlled substances prescription; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 267), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 362) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 362 - "A Bill to amend and reenact §60A-4-410 of the Code of West Virginia, 1931, as amended, relating to unlawfully withholding information from a medical practitioner in order to obtain a prescription for a controlled substance; clarifying language; and increasing penalties."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 376, Relating to residential mortgage foreclosure data; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 268), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 376) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 376 - "A Bill to amend and reenact §31A-2-4c of the Code of West Virginia, 1931, as amended; to amend and reenact §38-1-8a of said code; to amend and reenact §44- 13-4a of said code; and to amend and reenact §59-1-10 of said code, all relating to gathering, compilation and publication of residential mortgage foreclosure data; expanding the powers and duties of the West Virginia Housing Development Fund to include the receipt, compilation and publication of mortgage foreclosure data and reports contained in reports of sale filed by trustees with county clerks; providing the West Virginia Housing Development Fund with the authority to require additional information to be filed with the reports of sale; transferring the jurisdiction, powers and duties relative to the receiving, compiling into an electronic data base and making the data available from the Commissioner of Banking to the West Virginia Housing Development Fund; providing that mortgage financial data and reports received by the Commissioner on Banking under the code provisions prior to the effective date be supplied to the West Virginia Housing Development Fund; providing that the portion of the fee paid for recording the trustee's report of sale that is paid by county clerks to the Division of Banking be paid to the West Virginia Housing Development Fund; and establishing an effective date of July 1, 2010."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken (Roll No. 269), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Boggs, J. Miller and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 376) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 396, Updating commercial driver's license requirements; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 270), and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Armstead, Lane, Louisos, McGeehan, Porter, Schoen, Shott and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 396) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 398, Prohibiting landfill disposal of certain electronic devices; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 271), and there were--yeas 81, nays 16, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Carmichael, Craig, Ennis, Ireland, Lane, Louisos, McGeehan, Porter, Schadler, Shaver, Shott and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 398) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 398 - "A Bill to amend and reenact §22-15A-2 and §22-15A-22 of the Code of West Virginia, 1931, as amended, relating to prohibiting disposal of certain items in landfills; prohibiting the disposal of covered electronic devices; requiring the Solid Waste Management Board to create a program for the proper handling of certain items; and requiring the secretary to promulgate a rule to implement and enforce the disposal program."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 457, Repealing certain outdated code sections and eliminating penalties for displaying certain flags; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 272), and there were--yeas 89, nays 7, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Armstead, Ireland, Moye, Sobonya, Sumner, D. Walker and Walters.
Absent And Not Voting: Argento, J. Miller, Romine and Ross.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 457) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 471, Increasing circuit clerks' copying charge; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 273), and there were--yeas 85, nays 12, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Armstead, Ashley, Carmichael, Cowles, Lane, McGeehan, Overington, Porter, Shaver, Shott and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 471) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 471 - "A Bill to amend and reenact §59-1-11 of the Code of West Virginia, 1931, as amended, relating to increasing the amount circuit clerks may charge for copies."
Delegate Boggs moved that the bill take effect July 1, 2010.
On this question, the yeas and nays were taken (Roll No. 274), and there were--yeas 89, nays 8, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Ellem, Lane, Louisos, McGeehan, Porter, Shott, Sumner and Walters.
Absent And Not Voting: Argento, J. Miller and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 471) takes effect July 1, 2010.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 480, Relating to public higher education personnel; on third reading, coming up in regular order, with an amendment pending, was, on motion of Delegate Boggs, laid over.
Com. Sub. for S. B. 490, Relating to domestic violence; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 275), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Argento, Doyle, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 490) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 490 - "A Bill to amend and reenact §48-27-202, §48-27-503, §48-27- 505, §48-27-901 and §48-27-903 of the Code of West Virginia, 1931, as amended, all relating to prevention and treatment of domestic violence; authorizing family court judges to issue protective orders that contain certain provisions related to animals; providing that family court judges may make protective orders with a one year duration upon a finding of aggravating circumstances; authorizing family court judges to extend protective orders with a one year duration; establishing criteria for granting lengthier periods of protection; requiring secured bonds to prevent future domestic violence; amending current penalties for violations of protective orders; and creating a new misdemeanor offense of third and subsequent offenses for violations of a protective order."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 498, Updating language relating to adult social services; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 276), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 498) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 499, Changing names of certain community and technical colleges; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 277), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 499) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 499 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-3C-7a; and to amend and reenact §18B-3C-8 of said code, all relating to community and technical colleges; name changes for certain community and technical colleges; and modifying the location requirement for certain community and technical college headquarters."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 278), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Argento, J. Miller and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 499) takes effect from it passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 526, Finding and declaring certain claims against state; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 279), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 526) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 280), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 526) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 533, Revising statutory language regarding child abuse; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 281), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 533) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S. B. 533 - "A Bill to amend and reenact §61-8D-5 of the Code of West Virginia, 1931, as amended, relating to sex crimes involving a child; making it unlawful for a parent, guardian, custodian or other person in a position of trust in relation to a child to knowingly procure, authorize, or induce another person to engage in or attempt to engage in prohibited sexual conduct."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 547, Correcting inconsistency in school board levies' code; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 282), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 547) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S, B, 547 - "A Bill to amend and reenact §11-8-12 and §11-8-12a of the Code of West Virginia, 1931, as amended, all relating to the dates of certain meetings of county boards of education related to levies."
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 283), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 547) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 577, Clarifying definition of "raffle"; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 284), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 577) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 583, Updating references to Information Services and Communications Division; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 285), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 583) passed.

An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 583 - "A Bill to amend and reenact §5A-6-4 of the Code of West Virginia, 1931, as amended, and to amend and reenact §12-3-10e, all relating to changing references from the Information Services and Communications Division to the Office of Technology."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 635, Requiring State Fire Commission approve certain county and municipal fire ordinances and regulations; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 286), and there were--yeas 94, nays 4, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Carmichael, Ellem, Ireland and Louisos.
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 635) passed.
On motion of Delegate Miley, the title of the bill was amended to read as follows:
S. B. 635 - "A Bill to amend and reenact §29-3-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-3-5 of said code, relating to the State Fire Code; clarifying the State Fire Commission's process for updating the State Fire Code upon adoption of revised codes or standards by the National Fire Protection Association; requiring review and approval of county and municipal fire ordinances and agency regulations which impose more stringent standards than those required by the State Fire Code by the West Virginia State Fire Commission; and effective date."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 648, Repealing outdated and obsolete sections of education code; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 287), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 648) passed.
An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 648 - "A Bill to repeal §18-2F-1, §18-2F-2, §18-2F-3, §18-2F-4, §18-2F-5, §18-2F-6, §18-2F-7, §18-2F-8 and §18-2F-9 of the Code of West Virginia, 1931, as amended; and to repeal §18-7A-5, §18-7A-6, §18-7A-7, §18-7A-8, §18-7A-9 and §18-7A-10 of said code, all relating to repealing outdated and obsolete sections regarding education."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 651, Providing state bid preference for certain current license or permit holders; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 288), and there were--yeas 95, nays 3, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Cowles, Louisos and McGeehan.
Absent And Not Voting: Argento and Romine.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 651) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4668, Making a supplementary appropriation to the Crime Victims Compensation Fund, the Department of Education and the Arts - Division of Culture and History, and to the Department of Environmental Protection; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 289), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes and J. Miller.
Absent And Not Voting: Argento and Romine.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4668) passed.
Delegate Boggs moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 290), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Andes and J. Miller.
Absent And Not Voting: Argento and Romine.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4668) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading
Unanimous consent having been obtained, the following bills were each read a second time, ordered to third reading with amendment pending, and the rule was suspended to permit the offering and consideration of amendments on that reading:
S. B. 41, Relating to community enhancement districts,
Com. Sub. for S. B. 70, Relating to municipalities and counties issuing bonds,
S. B. 169, Relating to Economic Development Authority loans' criteria,
Com. Sub. for S. B. 213, Budget Bill,
Com. Sub. for S. B. 230, Relating to Board of Optometry,
S. B. 237, Authorizing issuance of revenue bonds for public projects,
Com. Sub. for S. B. 328, Relating to professional licensing boards posting fee increase proposals,
Com. Sub. for S. B. 352, Creating WV Community Empowerment Transportation Act ,
S. B. 372, Updating language in WV Medical Practice Act,
Com. Sub. for S. B. 394, Authorizing DMV use certain program to identify uninsured vehicles,
Com. Sub. for S. B. 422, Limiting liability for nonhealth care provider defibrillator users,
Com. Sub. for S. B. 427, Renaming and reorganizing Parkways, Economic Development and Tourism Authority,
Com. Sub. for S. B. 435, Relating to speed-detecting device use law,
Com. Sub. for S. B. 483, Authorizing HMOs offer point of service option,
Com. Sub. for S. B. 494, Providing fiduciary commissioner oversight,
Com. Sub. for S. B. 496, Allowing Environmental Protection Council certain rule-making authority,
Com. Sub. for S. B. 515, Relating to firearms' purchases and licensing,
Com. Sub. for S. B. 518, Creating Governor's Commission to Seize Future of Energy for America,
Com. Sub. for S. B. 557, Clarifying legislative vacancy procedures,
S. B. 573, Allowing audits published electronically with notice to proper authorities ,
Com. Sub. for S. B. 597, Requiring women seeking abortion opportunity to see fetus ultrasound image,
S. B. 612, Authorizing Governor certify certain capital improvement projects' lists,
Com. Sub. for S. B. 649, Establishing motor vehicle search criteria,
S. B. 664, Relating to duties of protected person's guardian,
Com. Sub. for S. B. 669, Allowing municipalities to operate teen courts,
S. B. 698, Relating to mini-trucks' registration and certificate of title requirements,
And,
Com. Sub. for H. B. 4025, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution.
Com. Sub. for S. B. 51, Relating to child custody plans for National Guard or military reserve parents; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 183, Creating Diesel-Powered Motor Vehicle Idling Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page eight, section three, on line sixty-six by striking out the words "students with special needs who are transported by a school bus" and inserting in lieu thereof "bus passengers", followed by a period,
And,
On page ten, section three, line one hundred nine, immediately following the end of the paragraph ending in the word "standard", by inserting as a new subdivision seventeen, which provides as follows:
"(17) When a diesel-powered motor vehicle is powered by clean diesel technology or bio- diesel fuels."
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 186, Creating DOT administrative law judge office; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"That §17C-5-2 and §17C-5-7 of the Code of West Virginia, 1931, as amended be amended and reenacted; that said code be amended by adding thereto a new section, designated §17C-5-2b; that §17C-5A-1a, §17C-5A-2, §17C-5A-3, and §17C-5A-3a of said code be amended and reenacted; that said code be amended by adding thereto four sections, designated §17C-5C-1, §17C-5C-2, §17C-5C-3 and §17C-5C-4; and that §61-11-22 and §61-11-25 of said code be amended and reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.

(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is 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 eight hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two years nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is 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 eight hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is 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 eight hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, except as provided in section two-b of this article, shall be confined in jail for up to six months and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of fifteen hundredths of one percent or more, by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(f) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(i) Any person under the age of twenty-one years who drives a vehicle in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four hours and shall be fined not less than one hundred dollars nor more than five hundred dollars. A person who is charged with a first offense under the provisions of this subsection may move for a continuance of the proceedings, from time to time, to allow the person to participate in the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of this subsection or subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is 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 eight hundredths of one percent or more, by weight; and
(2) The person while driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their sixteenth birthday is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than twelve months, which jail term is to include actual confinement of not less than forty-eight hours and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than six months nor more than one year and the court may, in its discretion, impose a fine of not less than one thousand dollars nor more than three thousand dollars.
(l) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(m) For purposes of subsections (k) and (l) of this section relating to second, third and subsequent offenses, the following ~~types of convictions~~ events shall be regarded as ~~convictions~~ offenses under this section:
(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of this section or under a prior enactment of this section for an offense which occurred within the ten-year period immediately preceding the date of arrest in the current proceeding;
(2) Any conviction under a municipal ordinance of this state or any other 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 subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.; and,
(3) Any period of conditional probation imposed pursuant section two-b of this article for violation of subsection (d) of this article, which violation occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.

(n) 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 period for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that 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, or the person has previously had a period of conditional probation imposed pursuant to section two-b of this article.
(o) The fact that any person charged with a violation of subsection (a), (b), (c), (d), (e) or (f) of this section, or any person permitted to drive as described under subsection (g) or (h) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section.
(p) For purposes of this section, the term 'controlled substance' has the meaning ascribed to it in chapter sixty-a of this code.
(q) The sentences provided in this section upon conviction for a violation of this article are mandatory and are not subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less for a first offense under this section.: Provided further, That the court may impose a term of conditional probation pursuant to section two-b of this article to persons adjudicated thereunder. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense: Provided, however, That for any period of home incarceration ordered for a person convicted of second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of section five, article eleven-b, chapter sixty-two of this code: Provided further, That for any period of home incarceration ordered for a person convicted of a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding section five, article eleven-b, chapter sixty-two of this code.

§17C-5-2b. Deferral of further proceedings for certain first offenses upon condition of participation in motor vehicle alcohol test and lock program; procedure on charge of violation of conditions.

(a) Except as provided in subsections (g) of this section, whenever any person who has not previously been convicted of any offense under this article or under any statute of the United States or of any state relating to driving under the influence alcohol, any controlled substance or any other drug, pleads guilty to or is found guilty of driving under the influence of alcohol under subsection (d), section two of this article, the court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the contrary, place him or her on probation, which conditions shall include, that he or she successfully completes the Motor Vehicle Alcohol Test and Lock Program as provided in section three-a, article five-a of this chapter. Participation therein shall be for a period of at least one hundred and sixty five days after he or she has served the fifteen days of license suspension imposed pursuant to section two, article five-a of this chapter.
(b) A defendant's election to participate in deferral under this section shall constitute a waiver of his or her right to an administrative hearing as provided in section two, article five-a, of this chapter.
(c) (1) If the prosecuting attorney files a motion alleging that the defendant during the period of the Motor Vehicle Alcohol Test and Lock program has been removed therefrom by the Division of Motor Vehicles, or has failed to successfully complete the program before making a motion for dismissal pursuant to subsection (d) of this section, the court may issue such process as is necessary to bring the defendant before the court.
(2) A motion alleging such violation filed pursuant to subdivision (1) must be filed during the period of the Motor Vehicle Alcohol Test and Lock Program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed.
(3) When the defendant is brought before the court, the court shall afford the defendant an opportunity to be heard. If the court finds that the defendant has been rightfully removed from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor Vehicles, the court may order, when appropriate, that the deferral be terminated, and thereupon enter an adjudication of guilt and proceed as otherwise provided.
(4) Should the defendant fail to complete or be removed from the Motor Vehicle Alcohol Test and Lock Program, the defendant waives the appropriate statute of limitations and the defendant's right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.
(d) When the defendant shall have completed satisfactorily the Motor Vehicle Alcohol Test and Lock Program and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the Division of Motor Vehicles that the defendant has successfully completed the Motor Vehicle Alcohol Test and Lock Program. A copy of the motion shall be served on the prosecuting attorney who shall within 30 days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant's attorney. If there are no objections filed within the 30-day period, the court shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the court shall proceed as set forth in subsection (c) of this section.
(e) Except as provided herein, unless a defendant adjudicated pursuant to this subsection be convicted of a subsequent violation of this article, discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime except for those provided in article five-a of this chapter. Except as provided in subsection (k) (l) and (m), section two of this article regarding subsequent offenses, the effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial. No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose other than any inquiry made in connection with any subsequent offense as that term is defined in subsection (m), section two of this article.
(f) There may be only one discharge and dismissal under this section with respect to any person.
(g) No person shall be eligible for dismissal and discharge under this section: (1) in any prosecution in which any violation of any other provision of this article has been charged;(2)if the person holds a commercial driver's license or operates commercial motor vehicle(s), or (3)the person has previously had his or her driver's license revoked under section two-a of this article or under any statute of the United States or of any state relating to driving under the influence alcohol, any controlled substance or any other drug.
(h) (1) After a period of not less than one year which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this section, the person may apply to the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant to this section except for those maintained by the Division of Motor Vehicles: Provided, That any person who has previously been convicted of a felony may not make a motion for expungement pursuant to this section.
( 2) If the prosecuting attorney objects to the expungement, the objections shall be filed with the court within 30 days after service of a motion for expungement and copies of the objections shall be served on the defendant or the defendant's attorney.
(3) If the objections are filed, the court shall hold a hearing on the objections, affording all parties an opportunity to be heard. If the court determines after a hearing that the person during the period of his or her probation and during the period of time prior to his or her application to the court under this subsection has not been guilty of any serious or repeated violation of the conditions of his or her probation, it shall order the expungement.
(i) Notwithstanding any provision of this code to the contrary, any person prosecuted for a violation of subsection(d), section two, article five of this chapter whose case is disposed of pursuant to the provisions of this section shall be liable for any court costs assessable against a person convicted of a violation of subsection (j), section two, article five of this chapter. Payment of such costs may be made a condition of probation. The costs assessed pursuant to this subsection, whether as a term of probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty, section four, article two-a, chapter fourteen, section four, article twenty-nine, chapter thirty and sections two, seven and ten, article five, chapter sixty-two of this code.

§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, That prior to the refusal, the person is given an oral warning and a written statement advising him or her that his or her refusal to submit to the secondary test finally designated will 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; and that after fifteen minutes following the warnings the refusal is considered final. The arresting officer after that period of time expires has no further duty to provide the person with an opportunity to take the secondary test. The officer shall, within forty-eight hours of the 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 the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) the 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) the person refused to submit to the secondary chemical test finally designated in the manner provided in section four of this article; and (4) the 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 forty-five days 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 constitutes an oath or affirmation by the person signing the statement that the statements contained in the statement are true and that any copy filed is a true copy. The 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 the 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 the person's license to operate a motor vehicle in this state for a period of one year or forty-five days, with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a, article five-a of this chapter: Provided, That a person revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Test and Lock Program. The application for participation in the Motor Vehicle Alcohol Test and Lock Program shall be considered to be a waiver of the hearing provided in section two of said article. If the ~~commissioner~~ person's license has previously been 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 the person's license to operate a motor vehicle in this state for a period of ten years: Provided, however, 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~~ person's license has previously been 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 the person's license to operate a motor vehicle in this state for a period of life. A copy of each order shall be forwarded to the 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. A revocation shall not become effective until ten days after receipt of the copy of the order. Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of refusal shall be considered 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 the 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 under this section 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 June 10, 1983; 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 June 10, 1983.
(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.
ARTICLE 5A. Administrative Procedures for Suspension and Revocation of Licenses for Driving under the Influence of Alcohol, Controlled Substances or Drugs.

§17C-5A-1a. Revocation upon conviction for driving under the influence of alcohol, controlled substances or drugs.

(a) If a person has a term of conditional probation imposed pursuant to section two-b, article five of this chapter, or is convicted for an offense defined in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section because the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, and if the person does not act to appeal the conviction within the time periods described in subsection (b) of this section, the person's license to operate a motor vehicle in this state shall be revoked or suspended in accordance with the provisions of this section.
(b) The clerk of the court in which a person has had a term of conditional probation imposed pursuant to section two-b, article five of this chapter, or is convicted for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall forward to the commissioner a transcript of the judgment of conviction. If the conviction is the judgment of a magistrate court, the magistrate court clerk shall forward the transcript when the person convicted has not requested an appeal within twenty days of the sentencing for such conviction. If the term of conditional probation is the act of a magistrate court, the magistrate court clerk shall forward the transcript when the order imposing the term of conditional probation is entered. If the conviction is the judgment of a mayor or police court judge or municipal court judge, the clerk or recorder shall forward the transcript when the person convicted has not perfected an appeal within ten days from and after the date upon which the sentence is imposed. If the conviction is the judgment of a circuit court, the circuit clerk shall forward the transcript when the person convicted has not filed a notice of intent to file a petition for appeal or writ of error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of conviction, or imposition of a term of conditional probation pursuant to section two-b, article five of this chapter, the commissioner ~~shall determine~~ determines that the person was convicted for an offense described in section two, article five of this chapter or had a period of conditional probation imposed pursuant to section two- b, article five of this chapter, or for an offense described in a municipal ordinance which has the same elements as an offense described in said section because the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state. If the commissioner determines that the person was convicted of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make and enter an order suspending the person's license to operate a motor vehicle in this state. The order shall contain the reasons for the revocation or suspension and the revocation or suspension periods provided for in section two of this article. Further, the order shall give the procedures for requesting a hearing which is to be held in accordance with the provisions of said section. The person shall be advised in the order that because of the receipt of a transcript of the judgment of conviction by the commissioner a presumption exists that the person named in the transcript of the judgment of conviction is the person named in the commissioner's order and such constitutes sufficient evidence to support revocation or suspension and that the sole purpose for the hearing held under this section is for the person requesting the hearing to present evidence that he or she is not the person named in the transcript of the judgment of conviction. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested. No revocation or suspension shall become effective until ten days after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order reinstating the operator's license of the person has been entered by the commissioner prior to the receipt of the transcript of the judgment of conviction.
(e) For the purposes of this section, a person is convicted when the person enters a plea of guilty or is found guilty by a court or jury. A plea of no contest does not constitute a conviction for purposes of this section except where the person holds a commercial drivers' license or operates a commercial vehicle.
§17C-5A-2. Hearing; revocation; review.
(a) ~~Upon the written request of a person whose license to operate a motor vehicle in this state has been revoked or suspended~~ Written objections to an order of revocation or suspension under the provisions of section one of this article or section seven, article five of this chapter shall be filed with the Office of Administrative Hearings. Upon the receipt of an objection, the Office of Administrative Hearings shall notify the Commissioner of the Division of Motor Vehicles, who shall stay the imposition of the period of revocation or suspension and afford the person an opportunity to be heard by the Office of Administrative Hearings. The written ~~request~~ objection must be filed with ~~the commissioner~~ Office of Administrative Hearings in person or by registered or certified mail, return receipt requested, within thirty calendar days after receipt of a copy of the order of revocation or suspension or no hearing will be granted. The hearing shall be before ~~the commissioner or~~ a hearing examiner ~~retained by the commissioner~~ employed by the Office of Administrative Hearings who shall rule on evidentiary issues ~~and~~. Upon consideration of the designated record, the hearing examiner shall, based on the determination of the facts of the case and applicable law, render a decision affirming, reversing or modifying the action protested. The decision shall contain findings of fact and conclusions of law and shall be provided to all parties by registered or certified mail, return receipt requested. submit proposed findings of fact and conclusions of law for the consideration of the commissioner and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The commissioner may reject or modify the hearing examiner's proposed findings of fact and conclusions of law, in writing, and only if:
~~(1) There is an error of law;~~
~~(2) They are clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or~~
~~(3) They are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.~~
(b) The hearing shall be held at an office of the Division of Motor Vehicles located in or near the county in which the arrest was made in this state or at some other suitable place in the county in which the arrest was made if an office of the division is not available.
(c) (1) Any hearing shall be held within one hundred eighty days after the date upon which the ~~commissioner~~ Office of Administrative Hearings received the timely written ~~request~~ objection unless there is a postponement or continuance.
(2) The ~~commissioner~~ Office of Administrative Hearings may postpone or continue any hearing on ~~the commissioner's~~ its own motion or upon application ~~for each person~~ by the party whose license is at issue in that hearing or by the commissioner for good cause shown. ~~The commissioner shall adopt and implement by a procedural rule written policies governing the postponement or continuance of any hearing on the commissioner's~~ ~~its~~ own motion or for the benefit of any law-enforcement officer or any person requesting the hearing and the policies shall be enforced and applied to all parties equally. For the purpose of conducting the hearing, the commissioner may issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code: ~~Provided,~~ ~~That the~~
(3) A notice of hearing to the appropriate law-enforcement officers by registered or certified mail, return receipt requested, constitutes a subpoena to appear at the hearing without the necessity of payment of fees by the Division of Motor Vehicles.
(d) (1) Any investigating officer who submits a statement pursuant to section one of this article that results in a hearing pursuant to this section shall not attend the hearing on the subject of that affidavit unless requested to do so by the party whose license is at issue in that hearing or by the commissioner or by the Office of Administrative Hearings. ~~The hearing request form shall~~
(2) Upon receipt of an objection pursuant to subsection (a) of this section, the Office of Administrative Hearings shall send the party whose license is at issue and the commissioner, a notice which shall clearly and concisely inform ~~a person seeking a hearing~~ that person of the fact that the investigating officer will only attend the hearing if requested to do so and provide for a box to be checked requesting the investigating officer's attendance. The language shall appear prominently on the ~~hearing request~~ form sent by the Office of Administrative Hearings.
(3) The Office of Administrative Hearings shall be responsible for transmitting the request to the officer. ~~The Division of Motor Vehicles is solely responsible for causing the attendance of the investigating officers.~~
(4) Law-enforcement officers shall be compensated for the time expended in their travel and appearance before the ~~commissioner~~ Office of Administrative Hearings by the law-enforcement agency by whom they are employed at their regular rate if they are scheduled to be on duty during said time or at their regular overtime rate if they are scheduled to be off duty during said time.
~~If the party whose license is at issue does not request the investigating officer to attend the hearing, the commissioner~~ ~~shall consider the written statement, test results and any other information submitted by the investigating officer pursuant to section one of this article in that officer's absence.~~ (e) The principal question at the hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did refuse to submit to the designated secondary chemical test, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight.
The commissioner may propose a legislative rule in compliance with the provisions of article three, chapter twenty-nine-a of this code which may provide that if a person accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, intends to challenge the results of any secondary chemical test of blood, breath or urine under section seven, article five of this chapter or intends to cross-examine the individual or individuals who administered the test or performed the chemical analysis, the person shall, within an appropriate period of time prior to the hearing, notify the Commissioner in writing of his or her intention. The rule may provide that when there is a Failure to comply with the notice requirement, the results of the secondary test, if any, shall be admissible as though the person and the commissioner ~~had stipulated the admissibility of the evidence: Any rule shall provide~~ ~~Provided, That the rule shall not be invoked in the case of a person who is not represented by counsel unless the communication from the commissioner~~ to the person establishing a time and place for the hearing also informed the person of the consequences of the person's failure to timely notify the Commissioner and of the person's intention to challenge the results of the secondary chemical test or cross-examine the individual or individuals who administered the test or performed the chemical analysis.
(f) In the case of a hearing in which a person is accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused of driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the ~~commissioner~~ Office of Administrative Hearings shall make specific findings as to: (1) Whether the investigating law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol, controlled substances or drugs, or while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or to have been driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test: Provided, That this element shall be waived in cases where no arrest occurred due to driver incapacitation; ~~(2)~~ (3) whether the person committed an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test; and ~~(3)~~ (4) whether the tests, if any, were administered in accordance with the provisions of this article and article five of this chapter.
(g) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person and was committed in reckless disregard of the safety of others and if the ~~commissioner~~ Office of Administrative Hearings further finds that the influence of alcohol, controlled substances or drugs or the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of ten years: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(h) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, the commissioner shall revoke the person's license for a period of five years: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(i) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, the commissioner shall revoke the person's license for a period of two years: Provided, That if the ~~commissioner~~ license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(j) If the ~~commissioner~~ Office of Administrative Hearings finds by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent or more, by weight, or finds that the person knowingly permitted the person's vehicle to be driven by another person who was under the influence of alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by another person who had an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight the commissioner shall revoke the person's license for a period of six months or a period of fifteen days with an additional one hundred and twenty days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of section three-a of this article: Provided, That any period of participation in the Motor Vehicle Alcohol Test and Lock Program that has been imposed by a court pursuant to section two-b, article five of this chapter shall be credited against any period of participation imposed by the commissioner: Provided further, That a person whose license is revoked for driving while under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided further, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substance or drugs, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person did drive a motor vehicle while having an alcohol concentration in the person's blood of fifteen hundredths of one percent or more, by weight, the commissioner shall revoke the person's license for a period of forty-five days with an additional two hundred and seventy days of participation in the Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions of article three-a, article five-a, chapter seventeen-c of this code: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(2) If a person whose license is revoked pursuant to subdivision (1) of this subsection proves by clear and convincing evidence that they do not own a motor vehicle upon which the alcohol test and lock device may be installed or is otherwise incapable of participating in the Motor Vehicle Alcohol Test and Lock Program, the period of revocation shall be one hundred eighty days: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(l) If, in addition to a finding that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, and if the ~~commissioner~~ Office of Administrative Hearings further finds that the alcohol concentration in the blood was a contributing cause to the death, the commissioner shall revoke the person's license for a period of five years: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(m) If, in addition to a finding that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, and if the ~~commissioner~~ Office of Administrative Hearings further finds that the alcohol concentration in the blood was a contributing cause to the bodily injury, the commissioner shall revoke the person's license for a period of two years: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(n) If the ~~commissioner~~ Office of Administrative Hearings finds by a preponderance of the evidence that the person did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall suspend the person's license for a period of sixty days: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article, the period of revocation shall be for one year, or until the person's twenty- first birthday, whichever period is longer.
(o) If, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the ~~commissioner~~ Office of Administrative Hearings also finds by a preponderance of the evidence that the person when driving did have on or within the motor vehicle another person who has not reached his or her sixteenth birthday, the commissioner shall revoke the person's license for a period of one year: Provided, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the ~~commissioner~~ person's license has previously been suspended or revoked ~~the person's license~~ more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(p) For purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of criminal convictions or administrative suspensions or revocations shall also be regarded as suspensions or revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the prior enactment of this section for conduct which occurred within the ten years immediately preceding the date of arrest;
(2) 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, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven, article five of this chapter for conduct which occurred within the ten years immediately preceding the date of arrest.
(q) In the case of a hearing in which a person is accused of refusing to submit to a designated secondary test, the ~~commissioner~~ Office of Administrative Hearings shall make specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test: Provided, That this element shall be waived in cases where no arrest occurred due to driver incapacitation; ~~(2)~~ (3) whether the person committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; ~~(3)~~ (4) whether the person refused to submit to the secondary test finally designated in the manner provided in section four, article five of this chapter; and ~~(4)~~ (5) whether the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for at least forty-five days and up to life if the person refused to submit to the test finally designated in the manner provided in said section.
(r) If the ~~commissioner~~ Office of Administrative Hearings finds by a preponderance of the evidence that: (1) The investigating officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test: Provided, That this element shall be waived in cases where no arrest occurred due to driver incapacitation; ~~(2)~~ (3) the person committed an offense relating to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; ~~(3)~~ (4) the person refused to submit to the secondary test finally designated in the manner provided in section four, article five of this chapter; and ~~(4)~~ (5) the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for at least forty-five days and up to life if the person refused to submit to the test finally designated, the commissioner shall revoke the person's license to operate a motor vehicle in this state for the periods specified in section seven, article five of this chapter. The revocation period prescribed in this subsection shall run concurrently with any other revocation period ordered under this section or section one of this article arising out of the same occurrence. The revocation period prescribed in this subsection shall run concurrently with any other revocation period ordered under this section or section one of this article arising out of the same occurrence.
(s) If the ~~commissioner~~ Office of Administrative Hearings finds to the contrary with respect to the above issues the commissioner shall rescind his or her earlier order of revocation or shall reduce the order of revocation to the appropriate period of revocation under this section or section seven, article five of this chapter. A copy of the ~~commissioner's~~ Office of Administrative Hearings' ~~order~~ findings of fact and conclusions of law made and entered following the hearing shall be served upon the person whose license is at issue and the commissioner by registered or certified mail, return receipt requested. During the pendency of any hearing, the revocation of the person's license to operate a motor vehicle in this state shall be stayed.
~~If the commissioner~~ ~~shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the~~ A person whose license is at issue and the commissioner shall be entitled to judicial review as set forth in chapter twenty-nine-a of this code. ~~The~~ Neither the Commissioner nor the Office of Administrative Hearings may ~~not~~ stay enforcement of the order. The court may grant a stay or supersede as of the order only upon motion and hearing, and a finding by the court upon the evidence presented, that there is a substantial probability that the appellant shall prevail upon the merits and the appellant will suffer irreparable harm if the order is not stayed: Provided, That in no event shall the stay or supersede as of the order exceed one hundred fifty days. Notwithstanding the provisions of section four, article five of said chapter, the ~~commissioner~~ Office of Administrative Hearings may not be compelled to transmit a certified copy of the file or the transcript of the hearing to the circuit court in less than sixty days.
(t) In any revocation or suspension pursuant to this section, if the driver whose license is revoked or suspended had not reached the driver's eighteenth birthday at the time of the conduct for which the license is revoked or suspended, the driver's license shall be revoked or suspended until the driver's eighteenth birthday or the applicable statutory period of revocation or suspension prescribed by this section, whichever is longer.
(u) Funds for this section's hearing and appeal process may be provided from the Drunk Driving Prevention Fund, as created by section forty-one, article two, chapter fifteen of this code, upon application for the funds to the Commission on Drunk Driving Prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall ~~propose a legislative rule or rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code establishing a~~ administer a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article or section seven, article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code and shall also establish the minimum qualifications for mental health facilities, day report centers, community correction centers or other public agencies or private entities conducting the safety and treatment program: Provided, That the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.
(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction and other programs designed to properly educate, train and rehabilitate the offender.
(c) ~~(1)~~ The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide for the preparation of an educational and treatment the program for each person whose license has been revoked under the provisions of this article or section seven , article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code which shall contain the following: (1) A listing and evaluation of the offender's prior traffic record; (2) the characteristics and history of alcohol or drug use, if any; (3) his or her amenability to rehabilitation through the alcohol safety program; and (4) a recommendation as to treatment or rehabilitation and the terms and conditions of the treatment or rehabilitation. The program shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment.
(d) There is hereby created a special revenue account within the State Treasury known as the Department of Health and Human Resources Safety and Treatment Fund. The account shall be administered by the Secretary of the Department of Health and Human Resources for the purpose of administering the comprehensive safety and treatment program established by subsection (a) of this section. The account may be invested, and all earnings and interest accruing shall be retained in the account. The Auditor shall conduct an audit of the fund at least every three fiscal years.
Effective July 1, 2010, the State Treasurer shall make a one-time transfer of $250,000 from the Motor Vehicle Fees Fund into the Department of Health and Human Resources Safety and Treatment Fund.
(2) The Department of Health and Human Resources shall establish a fee by legislative rule, proposed pursuant to article three, chapter twenty-nine-a of this code, to be collected from each offender enrolled in the safety and treatment program;
(e) (1) The program provider shall collect the established fee from each participant upon enrollment unless the department has determined that the participant is an indigent based upon criteria established pursuant to legislative rule authorized in this section. ~~subdivision (3) of this subsection.~~
(2) If the department determined that a participant is an indigent based upon criteria established pursuant to the legislative rule authorized by this section, the department shall provide the applicant with proof of its determination regarding indigency, which proof the applicant shall present to the interlock provider as part of the application process provided in section three-a of this article and/or the rules promulgated pursuant thereto.
(3) Program providers shall remit to the Department of Health and Human Resources a portion of the fee collected, which shall be deposited by the Secretary of the Department of Health and Human Resources into the Department of Health and Human Resources Safety and Treatment Fund . The Department of Health and Human Resources shall reimburse enrollment fees to program providers for each eligible indigent offender.
(3) The Department of Health and Human Resources shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-a of this code, criteria to determine the eligibility for the payment of safety and treatment services for indigent offenders. The rule shall include, but is not limited to, the development of a criteria for determining eligibility; promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment for safety and training services for eligible offenders.
~~(4)~~ (f) On or before January 15 of each year, the Secretary of the Department of Health and Human Resources shall report to the Legislature on:
~~(A)~~ (1) The total number of offenders participating in the safety and treatment program during the prior year;
~~(B)~~ (2) The total number of indigent offenders participating in the safety and treatment program during the prior year;
~~(C)~~ (3) The total number of program providers during the prior year; and
~~(D)~~ (4) The total amount of reimbursements paid to program provider during the prior year.
~~(5)~~ (g) The ~~commissioner~~ Commissioner of the Division of Motor Vehicles, after giving due consideration to the program developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article or section seven, article five of this chapter or subsection (6), section five, article three, chapter seventeen-b of this code which shall include successful completion of the educational, treatment or rehabilitation program, subject to the following:
~~(A)~~ (1) When the period of revocation is six months, the license to operate a motor vehicle in this State ~~shall~~ may not be reissued until: ~~(i)~~(A) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; ~~(ii)~~(B) the offender has successfully completed the program; ~~(iii)~~(C) all costs of the program and administration have been paid; and ~~(iv)~~(D) all costs assessed as a result of a revocation hearing have been paid.
~~(B)~~ (2) When the period of revocation is for a period of one year or for more than a year, the license to operate a motor vehicle in this state ~~shall~~ may not be reissued until: ~~(i)~~ (A) At least one- half of the time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; ~~(ii)~~ (B) the offender has successfully completed the program; ~~(iii)~~ (C) all costs of the program and administration have been paid; and ~~(iv)~~ (D) all costs assessed as a result of a revocation hearing have been paid. Notwithstanding any provision in this code, a person whose license is revoked for refusing to take a chemical test as required by section seven, article five of this chapter for a first offense is not eligible to reduce the revocation period by completing the safety and treatment program.
~~(C)~~ (3) When the period of revocation is for life, the license to operate a motor vehicle in this State ~~shall~~ may not be reissued until: ~~(i)~~ (A) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; ~~(ii)~~ (B) the offender has successfully completed the program; ~~(iii)~~ (C) all costs of the program and administration have been paid; and ~~(iv)~~ (D) all costs assessed as a result of a revocation hearing have been paid.
~~(D)~~ (4) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program shall only have to certify that the person has successfully completed the program.
~~(d)~~ (h) (1) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide for the preparation of an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection (n), section two, article five-a of this chapter. The educational program shall consist of not less than twelve nor more than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered, the license to operate a motor vehicle ~~shall~~ may not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.
~~(e)~~ (i) A required component of the ~~rehabilitation~~ treatment program provided in subsection (b) of this section and the education program provided for in subsection (c) of this section shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug-related offenses and offenders to share first-hand experiences on the impact of alcohol and drug-related offenses in their lives. The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall propose and implement a plan for victim impact panels where appropriate numbers of victims are available and willing to participate and shall establish guidelines for other innovative programs which may be substituted where the victims are not available to assist persons whose licenses have been suspended or revoked for alcohol and drug- related offenses to gain a full understanding of the severity of their offenses in terms of the impact of the offenses on victims and offenders. The plan shall require, at a minimum, discussion and consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships of victims or offenders; and
(E) Other information relating to the impact of alcohol and drug-related offenses upon victims or offenders.
The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.
(j)(1) The Secretary of the Department of Health and Human Resources shall promulgate a rule for legislative approval in accordance with article three, chapter twenty-nine-a of this code to administer the provisions of this section and establish a fee to be collected from each offender enrolled in the safety and treatment program. The rule shall include: (A) A reimbursement mechanism to program providers of required fees for the safety and treatment program for indigent offenders, criteria for determining eligibility of indigent offenders, and any necessary application forms; and (B) program standards that encompass provider criteria including minimum professional training requirements for providers, curriculum approval, minimum course length requirements and other items that may be necessary to properly implement the provisions of this section.
(2) The Legislature finds that an emergency exists and, therefore, the Secretary shall file by July 1, 2010, an emergency rule to implement this section pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code.
(k) Nothing in this section may be construed to prohibit day report or community correction programs, authorized pursuant to article eleven-c, chapter sixty-two of this code, from administering a comprehensive safety and treatment program pursuant to this section.
§17C-5A-3a. Establishment of and participation in the Motor Vehicle Alcohol Test and Lock Program.
(a)(1) The Division of Motor Vehicles shall control and regulate a Motor Vehicle Alcohol Test and Lock Program for persons whose licenses have been revoked pursuant to this article or the provisions of article five of this chapter or have been convicted under section two, article five of this chapter, or who are serving a term of a conditional probation pursuant to section two-b, article five of this chapter.
(2) The program shall include the establishment of a users fee for persons participating in the program which shall be paid in advance and deposited into the Driver's Rehabilitation Fund: Provided, That on and after the first day of July, two thousand seven, any unexpended balance remaining in the Driver's Rehabilitation Fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of section twenty-one, article two, chapter seventeen-a of this code and all further fees collected shall be deposited in that fund.
(3) (A) Except where specified otherwise, the use of the term 'program' in this section refers to the Motor Vehicle Alcohol Test and Lock Program.
(B) The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section. The rules shall also prescribe those requirements which, in addition to the requirements specified by this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system.
(C) Nothing in this section may be construed to prohibit day report or community correction programs authorized pursuant to article eleven-c, chapter sixty-two of this code, or a home incarceration program authorized pursuant to article eleven-B, chapter sixty-two of this code, from being a provider of motor vehicle alcohol test and lock systems for eligible participants as authorized by this section.
(4) For purposes of this section, a 'motor vehicle alcohol test and lock system' means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system's assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, the person is determined to be under the influence of alcohol.
(5) The fee for installation and removal of ignition interlock devices shall be waived for persons determined to be indigent by the Department of Health and Human Resources pursuant to section three, article five-a, chapter seventeen-c of this code. The commissioner shall establish by legislative rule, proposed pursuant to article three, chapter twenty-nine-a of this code, procedures to be followed with regard to persons determined by the Department of Health and Human Resources to be indigent ~~criteria to determine the eligibility for the payment of the installation of ignition interlock devices in the vehicles of indigent offenders~~. The rule shall include, but is not limited to, ~~the development of a criteria for determining eligibility;~~ promulgation of application forms; establishment of procedures for the review of applications; and the establishment of a mechanism for the payment of installations for eligible offenders.
(6) On or before the fifteenth day of January, of each year, the commissioner of the division of motor vehicles shall report to the Legislature on:
(A) The total number of offenders participating in the program during the prior year;
(B) The total number of indigent offenders participating in the program during the prior year;
(C) The terms of any contracts with the providers of ignition interlock devices; and
(D) The total cost of the program to the state during the prior year.
(b)(1) Any person whose license is revoked for the first time pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program: Provided, That anyone whose license is revoked for the first time pursuant to subsection (k), section two of this article must participate in the program when the person's minimum revocation period as specified by subsection (c) of this section has expired and the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program.
(2) Any person whose license has been suspended pursuant to the provisions of subsection (n), section two of this article for driving a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect: Provided, That in the case of a person under the age of eighteen, the person is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person's eighteenth birthday, whichever is later. Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to comply with the following conditions:
(A) If not already enrolled, the person shall enroll in and complete the educational program provided in subsection (d), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(B) The person shall pay all costs of the educational program, any administrative costs and all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, a person eligible to participate in the program under this subsection may not operate a motor vehicle unless approved to do so by the commissioner.
(c) A person who participates in the program under subdivision (1), subsection (b) of this section is subject to a minimum revocation period and minimum period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (d) or (g), section two, article five of this chapter or pursuant to subsection (j), section two of this article, the minimum period of revocation for participation in the test and lock program is fifteen days and the minimum period for the use of the ignition interlock device is one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter, the minimum period of revocation for participation in the test and lock program is forty-five days and the minimum period for the use of the ignition interlock device is one year;
(3) For a person whose license has been revoked for a first offense pursuant to section one-a of this article for conviction of an offense defined in subsection (e), section two, article five of this chapter or pursuant to subsection (j), section two of this article, the minimum period of revocation for participation in the test and lock program is forty-five days and the minimum period for the use of the ignition interlock device is two hundred seventy days;
(4) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a), section two, article five of this chapter or pursuant to subsection (f), section two of this article, the minimum period of revocation before the person is eligible for participation in the test and lock program is twelve months and the minimum period for the use of the ignition interlock device is two years;
(5) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, the minimum period of revocation is six months and the minimum period for the use of the ignition interlock device is two years;
(6) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is one year;
(7) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (j), section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article or section seven, article five of this chapter and the person was previously either convicted or his or her license was revoked under any provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in the program under this subsection is one year and the minimum period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to participate because of a violation of subsection (n), section two of this article or subsection (i), section two, article five of this chapter is two months and the minimum period of participation is one year. The division shall add an additional two months to the minimum period for the use of the ignition interlock device if the offense was committed while a minor was in the vehicle. The division shall add an additional six months to the minimum period for the use of the ignition interlock device if a person other than the driver received injuries. The division shall add an additional two years to the minimum period for the use of the ignition interlock device if a person other than the driver is injured and the injuries result in that person's death. The division shall add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past ten years. Any person required to participate under this subsection must have an ignition interlock device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a person whose license is revoked for driving under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program.
(f) An applicant for the test and lock program may not have been convicted of any violation of section three, article four, chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the six-month period preceding the date of application for admission to the test and lock program unless such is necessary for employment purposes.
(g) Upon permitting an eligible person to participate in the program, the commissioner shall issue to the person, and the person is required to exhibit on demand, a driver's license which shall reflect that the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(h) The commissioner may extend the minimum period of revocation and the minimum period of participation in the program for a person who violates the terms and conditions of participation in the program as found in this section, or legislative rule, or any agreement or contract between the participant and the division or program service provider. If the commissioner finds that any person participating in the program pursuant to section two-b, article five of this chapter must be removed therefrom for violation(s) of the terms and conditions thereof, he shall notify the person, the court that imposed the term of participation in the program, and the prosecuting attorney in the county wherein the order imposing participation in the program was entered.
(i) A person whose license has been suspended pursuant to the provisions of subsection (n), section two of this article who has completed the educational program and who has not violated the terms required by the commissioner of the person's participation in the program is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that the records have been expunged and by securely sealing and filing the records. Expungement has the legal effect as if the suspension never occurred. The records may not be disclosed or made available for inspection and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of the information does not divulge the identity of the person.
(j) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during that person's participation in the Motor Vehicle Alcohol Test and Lock Program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars. Any person who attempts to bypass the alcohol test and lock system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars: Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site if the operation is a condition of his or her employment. For the purpose of this section, job site does not include any street or highway open to the use of the public for purposes of vehicular traffic.
ARTICLE 5C. OFFICE OF ADMINISTRATIVE HEARINGS.
§17C-5C-1. Office created; appointment of Chief Hearing Examiner.
(a) The Office of Administrative Hearings is created as a separate operating agency within the Department of Transportation. (b) The Governor, with the advice and consent of the senate, shall appoint a director of the office who shall serve as the administrative head of the office and as chief hearing examiner. (c) Prior to appointment, the Chief Hearing Examiner shall be a citizen of the United States and a resident of this state who is admitted to the practice of law in this state.
(d) The salary of the Chief Hearing Examiner shall be set by the Secretary of the Department of Transportation. The salary shall be within the salary range for comparable administrators as determined by the State Personnel Board created by section six, article six, chapter twenty-nine of this code.
(e) The Chief Hearing Examiner during his or her term shall:
(1) Devote his or her full time to the duties of the position;
(2) Not otherwise engage in the active practice of law or be associated with any group or entity which is itself engaged in the active practice of law: Provided, That nothing in this paragraph may be construed to prohibit the Chief Hearing Examiner from being a member of a national, state or local bar association or committee, or of any other similar group or organization, or to prohibit the Chief Hearing Examiner from engaging in the practice of law by representing himself, herself or his or her immediate family in their personal affairs in matters not subject to this article.
(3) Not engage directly or indirectly in any activity, occupation or business interfering or inconsistent with his or her duties as Chief Hearing Examiner;
(4) Not hold any other appointed public office or any elected public office or any other position of public trust; and
(5) Not be a candidate for any elected public office, or serve on or under any committee of any political party.
(f) The Governor may remove the Chief Hearing Examiner only for incompetence, neglect of duty, official misconduct or violation of subsection (e) of this section, and removal shall be in the same manner as that specified for removal of elected state officials in section six, article six, chapter six of this code.
(g) The term of the Chief Hearing Examiner shall be six years. A person holding the position of Chief Hearing Examiner may be reappointed to that position subject to the provisions of subsection (b).
§17C-5C-2. Organization of Office.
(a) The Chief Hearing Examiner is the chief administrator of the Office of Administrative Hearings and he or she may employ hearing examiners and other clerical personnel necessary for the proper administration of this article.
(1) The Chief Hearing Examiner may delegate administrative duties to other employees, but the Chief Hearing Examiner shall be responsible for all official delegated acts.
(2) All employees of the Office of Administrative Hearings, except the Chief Hearing Examiner, shall be in the classified service and shall be governed by the provisions of the statutes, rules and policies of the classified service in accordance with the provisions of article six, chapter twenty-nine of this code.
(3) Notwithstanding any provision of this code to the contrary, those persons serving as hearing examiners within the Division of Motor Vehicles on the effective date of this article as enacted during the Regular Session of the 2010 Legislature, shall be eligible and given first preference in hiring as hearing examiners pursuant to this article.
(b) The Chief Hearing Examiner shall:
(1) Direct and supervise the work of the office staff;
(2) Make hearing assignments;
(3) Maintain the records of the office;
(4) Review and approve decisions of hearing examiners as to legal accuracy, clarity and other requirements;
(5) Submit to the Legislature, on or before the fifteenth day of February, an annual report summarizing the office's activities since the end of the last report period, including a statement of the number and type of matters handled by the office during the preceding fiscal year and the number of matters pending at the end of the year; and
(6) Perform the other duties necessary and proper to carry out the purposes of this article.
(c) The administrative expenses of the office shall be included within the annual budget of the Department of Transportation.
§17C-5C-3. Jurisdiction of Office of Administrative Hearings.
The Office of Administrative Hearings jurisdiction to hear and determine all:
(1) Appeals from an order of the Commissioner of the Division of Motor Vehicles suspending a license pursuant to section eight, article two-B, chapter seventeen-B of this code;
(2) Appeals from decisions or orders of the Commissioner of the Division of Motor Vehicles suspending or revoking a license pursuant to sections three-c, six and twelve, article three, chapter seventeen-B of this code;
(3) Appeals from orders of the Commissioner of the Division of Motor Vehicles pursuant to section two, article five-A, of this chapter, revoking or suspending a license under the provisions of section one of this article or section seven, article five of chapter;
(4) Appeals from decisions or orders of the Commissioner of the Division of Motor Vehicles denying, suspending, revoking, refusing to renew any license or imposing any civil money penalty for violating the provisions of any licensing law contained in chapters seventeen-B and seventeen-c that are administered by the Commissioner of the Division of Motor Vehicles; and
(5) Other matters which may be conferred on the office by statute or legislatively approved rules.
§17C-5C-4. Hearing Procedures.
(a) A hearing before the office shall be heard de novo and conducted pursuant to the provisions of the contested case procedure set forth in article five, chapter twenty-nine-a of this code to the extent not inconsistent with the provisions of chapters seventeen-B and seventeen-c of this code. In case of conflict, the provisions of chapters seventeen-B and seventeen-c of this code shall govern.
(b) Notwithstanding any provision of this code to the contrary, the Commissioner of the Division of Motor Vehicles may be represented at hearings conducted by the Office and evidence submitted by the Commissioner may be considered in such hearings with or without such representation.
(c) The West Virginia Rules of Evidence governing proceedings in the courts of this state shall be given like effect in hearings held before a hearing examiner. All testimony shall be given under oath.
(d) Except as otherwise provided by this code or legislative rules, the Commissioner of Motor Vehicles has the burden of proof.
(e) The hearing examiner may request proposed findings of fact and conclusions of law from the parties prior to the issuance by the office of the decision in the matter.
(f) Hearings shall be exempt from the requirements of article one, chapter twenty-nine-b of this code.
§17C-5C-4. Transition from Division of Motor Vehicles to the Office of Administrative Hearings.
(a) In order to implement an orderly and efficient transition of the administrative hearing process from the Division of Motor Vehicles to the Office of Administrative Hearings:
(1) The Secretary of the Department of Transportation may establish interim policies and procedures for administrative hearings for appeals from decisions or orders of the Commissioner of the Division of Motor Vehicles denying, suspending, revoking, refusing to renew any license or imposing any civil money penalty for violating the provisions of any licensing law contained in chapters, seventeen-A, seventeen-B, seventeen-C, seventeen-D and seventeen-E of this code, currently administered by the Commissioner of the Division of Motor Vehicles.
(2) The Commissioner of the Division of Motor Vehicles and the Chief Hearing Examiner shall enter into a formal interagency transition agreement. The agreement shall define the financial responsibility of each agency, describe the transition of services between the agencies, and establish procedures for resolving disputes.
(b) On the effective date of this article, all equipment and records necessary to effectuate the purposes of this article shall be transferred from the Division of Motor Vehicle to the Office of Administrative Hearings: Provided, That in order to provide for a smooth transition, the Secretary of Transportation may, establish interim policies and procedures, determine the how equipment and records are to be transferred and provide that the transfers provided for in this subsection take effect no later than October 1, 2010.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug court programs.
(a) A prosecuting attorney of any county of this state or a person acting as a special prosecutor may enter into a pretrial diversion agreement with a person under investigation or charged with an offense against the state of West Virginia, when he or she considers it to be in the interests of justice. The agreement is to be in writing and is to be executed in the presence of the person's attorney, unless the person has executed a waiver of counsel.
(b) Any agreement entered into pursuant to the provisions of subsection (a) of this section may not exceed twenty-four months in duration. The duration of the agreement must be specified in the agreement. The terms of any agreement entered into pursuant to the provisions of this section may include conditions similar to those set forth in section nine, article twelve, chapter sixty-two of this code relating to conditions of probation. The agreement may require supervision by a probation officer of the circuit court, with the consent of the court. An agreement entered into pursuant to this section must include a provision that the applicable statute of limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial diversion with a prosecuting attorney and who has successfully complied with the terms of the agreement is not subject to prosecution for the offense or offenses described in the agreement or for the underlying conduct or transaction constituting the offense or offenses described in the agreement, unless the agreement includes a provision that upon compliance the person agrees to plead guilty or nolo contendere to a specific related offense, with or without a specific sentencing recommendation by the prosecuting attorney.
(d) No person charged with a violation of the provisions of section two, article five, chapter seventeen-c of this code may participate in a pretrial diversion program. : Provided, That a court may defer proceedings in accordance with section two-b, article five, chapter seventeen-c of this code. No person charged with a violation of the provisions of section twenty-eight, article two of this chapter may participate in a pretrial diversion program unless the program is part of a community corrections program approved pursuant to the provisions of article eleven-c, chapter sixty-two of this code. No person indicted for a felony crime of violence against the person where the alleged victim is a family or household member as defined in section two hundred three, article twenty-seven, chapter forty-eight of this code or indicted for a violation of the provisions of sections three, four or seven, article eight-b of this chapter is eligible to participate in a pretrial diversion program. No defendant charged with a violation of the provisions of section twenty-eight, article two of this chapter or subsections (b) or (c), section nine, article two of this chapter where the alleged victim is a family or household member is eligible for pretrial diversion programs if he or she has a prior conviction for the offense charged or if he or she has previously been granted a period of pretrial diversion pursuant to this section for the offense charged. Notwithstanding any provision of this code to the contrary, defendants charged with violations of the provisions of section twenty-eight, article two, chapter sixty-one of this code or the provisions of subsection (b) or (c), section nine, article two of said chapter where the alleged victim is a family or household member as defined by the provisions of section two hundred three, article twenty-seven, chapter forty-eight of this code are ineligible for participation in a pretrial diversion program before the July 1, 2002, and before the community corrections subcommittee of the Governor's Committee on Crime, Delinquency and Correction established pursuant to the provisions of section two, article eleven-c, chapter sixty-two of this code, in consultation with the working group of the subcommittee, has approved guidelines for a safe and effective program for diverting defendants charged with domestic violence.
(e) The provisions of section twenty-five of this article are inapplicable to defendants participating in pretrial diversion programs who are charged with a violation of the provisions of section twenty-eight, article two, chapter sixty-one of this code. The community corrections subcommittee of the Governor's Committee on Crime, Delinquency and Correction established pursuant to the provisions of section two, article eleven-c, chapter sixty-two of this code shall, upon approving any program of pretrial diversion for persons charged with violations of the provisions of section twenty-eight, article two, chapter sixty-one of this code, establish and maintain a central registry of the participants in the programs which may be accessed by judicial officers and court personnel.
§61-11-25. Expungement of criminal records for those found not guilty of crimes or against whom charges have been dismissed.

(a) Any person who has been charged with a criminal offense under the laws of this state and who has been found not guilty of the offense, or against whom charges have been dismissed, and not in exchange for a guilty plea to another offense, may make a motion in the circuit court in which the charges were filed to expunge all records relating to the arrest, charge or other matters arising out of the arrest or charge: Provided, That no record in the Division of Motor Vehicles may be expunged by virtue of any order of expungement entered pursuant to section two-b, article five, chapter seventeen-C of this code: Provided further, That any person who has previously been convicted of a felony may not make a motion for expungement pursuant to this section. The term records as used in this section includes, but is not limited to, arrest records, fingerprints, photographs, index references or other data whether in documentary or electronic form, relating to the arrest, charge or other matters arising out of the arrest or charge. Criminal investigation reports and all records relating to offenses subject to the provisions of article twelve, chapter fifteen of this code because the person was found not guilty by reason of mental illness, mental retardation or addiction are exempt from the provisions of this section.
(b) The expungement motion shall be filed not sooner than sixty days following the order of acquittal or dismissal by the court. Any court entering an order of acquittal or dismissal shall inform the person who has been found not guilty or against whom charges have been dismissed of his or her rights to make a motion for expungement pursuant to this section.
(c) Following the filing of the motion, the court may set a date for a hearing. If the court does so, it shall notify the prosecuting attorney and the arresting agency of the motion and provide an opportunity for a response to the expungement motion.
(d) If the court finds that there are no current charges or proceedings pending relating to the matter for which the expungement is sought, the court may grant the motion and order the sealing of all records in the custody of the court and expungement of any records in the custody of any other agency or official including law-enforcement records. Every agency with records relating to the arrest, charge or other matters arising out of the arrest or charge, that is ordered to expunge records, shall certify to the court within sixty days of the entry of the expungement order, that the required expungement has been completed. All orders enforcing the expungement procedure shall also be sealed.
(e) Upon expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall reply to any inquiry that no record exists on the matter. The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit or other type of application.
(f) Inspection of the sealed records in the court's possession may thereafter be permitted by the court only upon a motion by the person who is the subject of the records or upon a petition filed by a prosecuting attorney that inspection and possible use of the records in question are necessary to the investigation or prosecution of a crime in this state or another jurisdiction. If the court finds that the interests of justice will be served by granting the petition, it may be granted."
On motion of Delegate Miley, the Judiciary Committee amendment was amended on page
one, line six, after the code citation "§17C-5C-3", by striking out the word "and" and the code citation "§17C-5C-4" and inserting in lieu thereof, a comma and the following, "§17C-5C-4 and §17C-5C-5".
And,
On page sixty-four, line twenty-two, section four, by striking the section in its entirety and inserting in lieu thereof the following:
"§17C-5C-5. Transition from Division of Motor Vehicles to the Office of Administrative Hearings.
(a) In order to implement an orderly and efficient transition of the administrative hearing process from the Division of Motor Vehicles to the Office of Administrative Hearings, the Secretary of the Department of Transportation may establish interim policies and procedures for the transfer of administrative hearings for appeals from decisions or orders of the Commissioner of the Division of Motor Vehicles denying, suspending, revoking, refusing to renew any license or imposing any civil money penalty for violating the provisions of any licensing law contained in chapters, seventeen-A, seventeen-B, seventeen-C, seventeen-D and seventeen-E of this code, currently administered by the Commissioner of the Division of Motor Vehicles, no later than October 1, 2010.
(b) On the effective date of this article, all equipment and records necessary to effectuate the purposes of this article shall be transferred from the Division of Motor Vehicle to the Office of Administrative Hearings: Provided, That in order to provide for a smooth transition, the Secretary of Transportation may establish interim policies and procedures, determine the how equipment and records are to be transferred and provide that the transfers provided for in this subsection take effect no later than October 1, 2010."
The Judiciary Committee amendment, as amended, was then adopted.
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 229, Authorizing School Building Authority issue certain outstanding bonds; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 232, Transferring certain requirements for redeeming delinquent land sales from county clerks to State Auditor; on second reading, coming up in regular order, was read a second time.
Amendments, recommended by the Committee on Finance, were reported by the Clerk and adopted, amending the bill on page three, section five-a, line five, following the word "twenty-eight" and the comma, by inserting the word "twenty-nine" and a comma.
On page three, section five-b, line six, following the word "twenty-eight" and the comma, by inserting the word "twenty-nine" and a comma.
On page five, section five-b, line thirty-four, following the word "twenty-eight" and the comma, by inserting the word "twenty-nine" and a comma.
On page twelve, section fifteen, line eight, following the words "fee for", by inserting the words "an assignment of a".
On page fourteen, section nineteen, following line nine, by adding a new subdivision to read as follows:
"(2) When the real property subject to the tax lien is classified as Class II property, provide the State Auditor with the physical mailing address of the property that is subject to the tax lien or liens purchased" and a semi-colon and by renumbering the remaining subdivisions.
On page twenty-one, section twenty-two, following line thirty-four, by adding a new paragraph to read as follows:
"In addition to the other notice requirements set forth in this section, if the real property subject to the tax lien was classified as Class II property at the time of the assessment, at the same time the State Auditor issues the required notices by certified mail, the State Auditor shall forward a copy of the notice sent to the delinquent taxpayer by first class mail, addressed to 'Occupant', to the physical mailing address for the subject property. The physical mailing address for the subject property shall be supplied by the purchaser of the tax lien pursuant to the provisions of section nineteen of this article."
On page twenty-three, section twenty-three, line twenty-three, by striking out the words "and certifies".
On page twenty-five, section twenty-three, line seventy-five, following the words "lien and", by striking out the word "to".
On page twenty-seven, section twenty-four, beginning on line twenty-one, following the words "title performed", by striking out the words "and certified".
On page twenty-nine, section twenty-five, line thirty-six, by striking out the words "is $300" and inserting in lieu thereof the words "shall not exceed the amount actually incurred by the purchaser or $300, whichever is less".
On page thirty-one, section twenty-five, line eighty-two, following the words "received from the", by striking out the word "purchaser" and inserting in lieu thereof the words "person redeeming".
On page thirty-three, section twenty-seven, beginning on line two, by striking out the words "but in no event prior to" and inserting in lieu thereof the words "then from".
On page thirty-three, section twenty-seven, line four, following the word "sale", by striking out the comma.
And,
On page thirty-three, section twenty-seven, line five, by striking out the words "but prior to" and inserting in lieu thereof the word "until".

There being no further amendments, the bill was ordered to third reading.

Com. Sub. for S. B. 236, Creating Aquaculture Development Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page six, section five, line fourteen, by striking out the word "and".
On page six, section five, line fifteen, by adding a new subdivision (6) as follows:
"(6) A representative from the West Virginia State University Extension Service; and"
And,
By renumbering the remainder of the bill accordingly.
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 238, Relating to mineral rights' benefits; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page eight, section three, line one hundred twenty-four, at the

beginning of the sentence, by striking out the word "The" and inserting in lieu thereof the following: "Except as otherwise provided by law, when the corporation exercises its powers, the".

There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 397, Creating single dwelling residential housing index and multiplier; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 397) was advanced to third reading with an amendment pending.
Com. Sub. for S. B. 407, Authorizing Department of Revenue promulgate legislative rules; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page four, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:

"ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO PROMULGATE LEGISLATIVE RULES.

§64-7-1. State Tax Department.
(a) The legislative rule filed in the State Register on July 30, 2009, authorized under the authority of section nine, article thirteen-x, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 21, 2010, relating to the State Tax Department (Film Industry Investment Tax Credit, 110 CSR 13X), is authorized.
(b) The legislative rule filed in the State Register on June 23, 2009, authorized under the authority of section five, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 30, 2009, relating to the State Tax Department (Consumer Sales and Service Tax and Use Tax - Drugs, Durable Medical Goods, Mobility Enhancing Equipment and Prosthetic Devices Per Se Exemption; and Motor Vehicles Per Se Exemption, 110 CSR 15C), is authorized.
(c) The legislative rule filed in the State Register on July 30, 2009, authorized under the authority of section three, article thirteen-z, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on November 30, 2009, relating to the State Tax Department (Residential Solar Energy Tax Credit, 110 CSR 21D), is authorized with the following amendments:
On page two, beginning on line twenty, by striking out subdivision 2.2.d in its entirety and redesignating the remaining subdivisions accordingly;
On page five, subsection 4.2, line twenty-one, following the word "incentive", by changing the comma to a period and striking out the remainder of the sentence;
On page nine, subsection 9.1, line thirteen, following the words "until the" by striking out the following:
"earlier of the following:
9.1.a. Four taxable years have elapsed; or
9.1.b. The full";
And,
On page nine, line twenty-two, by striking out subsection 9.4 in its entirety.
(d) The legislative rule filed in the State Register on July 31, 2009, authorized under the authority of section five, article ten, chapter eleven of this code, modified by the State Tax Department to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 21, 2010, relating to the State Tax Department (Corporation Net Income Tax, 110 CSR 24), is authorized with the following amendments:
On page eight, 5.1.a.3, line eighteen, following the words "superseding state", by striking out the word "of" and inserting in lieu thereof the word "or";
On page sixteen, 7.5.c.1, line eleven, following the words "~~such the~~", by inserting the word "the";
On page eighteen, 7.6.c.1, line twenty-three, by striking out the word "employees" and inserting in lieu thereof the word "employees'";
On page twenty-nine, 7a.1.a, line thirty-one, following the words "apportionment method" by inserting the words "are subject to apportionment as described in the following paragraph";
On page thirty, 7a.1.a.1, line ten, following the words "special apportionment members" by striking out the comma;
On page thirty-one, 8.4.a, line twenty-three, following the words "which are determined" by striking out the comma;
On page thirty-two, 8.5.a.2, line ten, following the words "W. Va. Code §11-24-8(e)" by striking out the comma;
On page forty-one, 13a.1.a, line one, following the words "insurance company" by striking out the comma;
On page forty-one, 13a.1.a, line three, following the words "shall not be included" by inserting the word "in";
On page forty-two, 13a.2.b.2, line twelve, following the words "the stock of", by striking out the words "~~such~~ that" and inserting in lieu thereof the word "the";
On page forty-two, 13a.2.b.2, line fifteen, following the words "income of", by striking out the words "~~such~~ this" and inserting in lieu thereof the word "the";
On page forty-three, 13a.3.a.6, line thirty-four, following the words "~~below~~ in", by striking out the word "paragraph" and inserting in lieu thereof the word "subparagraph";
On page fifty-four, 13a.3.d.1, line fourteen, following the word "member" by striking out the comma;
On page seventy, 13d.4.a.2, line thirteen, by reinserting the word "see";
On page ninety-nine, 13e.2.a.3, beginning on line three, following the word "privileges", by reinserting the word "must" and striking out the word "shall";
On page ninety-nine, 13e.2.a.3, line four, following the words "and it", by reinserting the word "must" and striking out the word "shall";
On page one hundred, 13e.4.c, line seventeen, following the words "group return" by striking out the comma;
On page one hundred, 13e.4.e, line twenty-two, following the words "group return" by striking out the comma;
On page one hundred two, 13e.8, line twenty-two, following the word "corporation" and the comma, by striking out the word "then";
On page one hundred ten, 26.4, line nineteen, following the words "transactions include", by inserting a colon;
On page one hundred ten, 26.4, line twenty, following the word "property" and the semi-colon, by striking out the words "sales or transfers" and inserting in lieu thereof the words "the sale or transfer";
On page one hundred ten, 26.4, line twenty-one, by striking out the words "the owner or for consideration" and inserting in lieu thereof the words "the owner; or consideration";
And,
On page one hundred fifteen, 27.2.c.6, line five, following the word "annual", by striking out the word "of".
§64-7-2. Directors of the West Virginia Health Insurance Plan.
(a) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section seven-b, article forty-eight, chapter thirty-three of this code, modified by the Directors of the West Virginia Health Insurance Plan to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on January 25, 2010, relating to the Directors of the West Virginia Health Insurance Plan (Premium Subsidy, 113 CSR 1), is authorized.
(b) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Directors of the West Virginia Health Insurance Plan to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 26, 2010, relating to the Directors of the West Virginia Health Insurance Plan (Pre-existing Conditions Exclusion, 113 CSR 2), is authorized.
§64-7-3. Insurance Commissioner.
(a) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 26, 2010, relating to the Insurance Commissioner (Variable Life Insurance, 114 CSR 11D), is authorized.
(b) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 25, 2010, relating to the Insurance Commissioner (Annuity Disclosure, 114 CSR 11E), is authorized.
(c) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 26, 2010, relating to the Insurance Commissioner (Medicare Supplement Insurance, 114 CSR 24), is authorized.
(d) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (Coordination of Health Benefits, 114 CSR 28), is authorized with the following amendments:
On page one, subsection 1.1, after the word "after" by striking out the words "the effective date of this rule" and inserting in lieu thereof the words "January 21, 2011,";
And,
On page one, subsection 1.1, after the word "before" by striking out the words "the effective date of this rule" and inserting in lieu thereof the words "January 21, 2011,".
(e) The legislative rule filed in the State Register on July 31, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, relating to the Insurance Commissioner (West Virginia Life and Health Insurance Guaranty Association Act Notice Requirements, 114 CSR 36), is authorized.
(f) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 17, 2009, relating to the Insurance Commissioner (Mental Health Parity, 114 CSR 64), is authorized.
(g) The legislative rule filed in the State Register on July 24, 2009, authorized under the authority of section seventeen, article thirteen-c, chapter thirty-three of this code, relating to the Insurance Commissioner (Viatical Settlements, 114 CSR 80), is authorized with the following amendments:
On page two, subsection 2.6., after the word "viators" by striking out the words "by viatical settlement providers";
On page four, subsection 4.2., subdivision b., after the word "domicile" by striking out the words "and a West Virginia business license from the Secretary of State's Office";
On page five, by striking out subdivision 4.2.c. in its entirety;
And, by renumbering the remaining subdivisions;
On page five, subsection 4.2., subdivision f., by striking out the words "all information" and inserting in lieu thereof the word "informational";
On page five, subsection 4.2., subdivision f., after the word "viators" by inserting the words "describing the viatical settlement process";
On page five, subsection 4.3., subdivision b., after the word "five" by inserting the word "consecutive";
On page six, by striking out subsection 4.6. in its entirety;
And, by renumbering the remaining subsections;
On page six, subsection 4.8., after the word "license." by striking out the words "All viatical settlement broker licenses, as fixed by the Commissioner, shall expire at midnight on the thirty first day of May next following the date of issuance." and inserting in lieu thereof the words "The date upon which the viatical settlement broker license shall expire for individuals and entities shall be at the discretion of the Commissioner.";
On page six, subsection 4.10., subdivision a., after the word "directions" by striking out the word "posited" and inserting in lieu thereof the word "posted";
On page nine, subsection 6.2., after the word "broker" by inserting the words "and each insurance producer whose viatical settlement activities are incidental to their business activities";
On page twelve, section 9, after the word "A" by striking out the word "person" and inserting in lieu thereof the words "viatical settlement provider";
On page twelve, section 9, after the word "similar" by striking the word "ro" and inserting in lieu thereof the word "to";
And,
On page fourteen, subsection 12.1., subdivision b., after the words "case of" by striking the word "in" and inserting in lieu thereof the word "an".
(h) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 25, 2010, relating to the Insurance Commissioner (Preventive Care Pilot Program, 114 CSR 87), is authorized.
(i) The legislative rule filed in the State Register on July 17, 2009, authorized under the authority of section ten, article two, chapter thirty-three of this code, modified by the Insurance Commissioner to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 12, 2009, relating to the Insurance Commissioner (Use of Senior- Specific Certifications and Professional Designations in the Sale of Life Insurance and Annuities, 114 CSR 89), is authorized.
§64-7-4. Alcohol Beverage Control Commission.
The legislative rule filed in the State Register on July 16, 2009, authorized under the authority of section twenty-two-a, article sixteen, chapter eleven of this code, modified by the Alcohol Beverage Control Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 21, 2010, relating to the Alcohol Beverage Commission (Nonintoxicating Beer Licensing and Operations Procedures, 176 CSR 1), is authorized.
§64-7-5. Athletic Commission.
The legislative rule filed in the State Register on July 31, 2009, authorized under the authority of section twenty-four, article five-a, chapter twenty-nine of this code, modified by the Athletic Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register January 8, 2010, relating to the Athletic Commission (Administrative Rules of the West Virginia State Athletic Commission, 177 CSR 1), is authorized.
§64-7-6. Lottery Commission.
The legislative rule filed in the State Register on July 27, 2009, authorized under the authority of section five, article twenty-five, chapter twenty-nine of this code, modified by the Lottery Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on January 20, 2010, relating to the Lottery Commission (Limited Gaming Facility Rule, 179 CSR 4), is authorized with the following amendments:
On page fifty-one, line seven, following the word "through", by striking out the numeral "37" and inserting in lieu thereof the numeral "38";
On page fifty-one, beginning on line eight, by striking out section thirty-eight in its entirety;
On page eighty-one, 57.5.c, line thirty-four, following the word "section", by striking out the word "fifty-three" and inserting in lieu thereof the word "thirty-three";
On page eighty-four, 57.6.d, line six, following the word "~~fifteen~~", by striking out the word "thirty-three" and inserting in lieu thereof the word "sixteen";
On page one hundred twelve, 88.2.b, line thirteen, following the word "paragraphs", by striking out the numerals "88.l.i.2 to 88.l.i.4" and inserting in lieu thereof the numerals "88.l.g.2 to 88.l.g.4";
On page one hundred thirty-three, beginning on line seventeen, by striking out the following:
"~~115.5.c.2.~~ 115.5.b.1. Dice;
~~115.5.c.3.~~ 115.5.b.1. Tokens;
~~115.5.c.4.~~ 115.5.b.1. Playing cards; and
~~115.5.c.5.~~ 115.5.b.1. Positions on the roulette wheel."
and inserting in lieu thereof the following:
"~~115.5.c.2.~~ 115.5.b.2. Dice;
~~115.5.c.3.~~ 115.5.b.3. Tokens;
~~115.5.c.4.~~ 115.5.b.4. Playing cards; and
~~115.5.c.5.~~ 115.5.b.5. Positions on the roulette wheel.";
On page one hundred forty-one, line two, following the numeral "~~119.3.b.~~" by striking out the numeral "119.2.a." and inserting in lieu thereof the numeral "119.2.b.";
On page one hundred forty-one, line three, following the numeral "~~119.3.c.~~" by striking out the numeral "119.2.a." and inserting in lieu thereof the numeral "119.2.c.";
On page one hundred forty-three, line twenty, following the numeral "~~121.3.a.3.~~" by striking out the numeral "121.3.a.4." and inserting in lieu thereof the numeral "121.3.a.2.";
On page one hundred forty-three, line twenty-one, following the numeral "~~121.3.a.4.~~" by striking out the numeral "121.3.a.5." and inserting in lieu thereof the numeral "121.3.a.3.";
On page one hundred fifty-eight, 145.1, line thirty-one, by striking out the numeral "§25-25- 22a" and inserting in lieu the numeral "§29-25-22a";
And,
On page one hundred seventy, 173.1, line thirty-one, following the word "gambling", by inserting a comma."

There being no further amendments, the bill was ordered to third reading.
S. B. 442, Clarifying PEIA Finance Board may offset certain annual retiree premium increases; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 446, Clarifying deceased public employees' survivors participate in comprehensive group health insurance plans only; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 449, Relating to PEIA preexisting conditions limitations: on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 453, Providing State Register subscribers electronic format option; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That §29A-2-7 of the Code of West Virginia, 1931, as amended be amended and reenacted to read as follows:
ARTICLE 2. STATE REGISTER.
§29A-2-7. Publication of State Register.
(a) The Legislature intends that the Secretary of State offer to the public ~~convenient and efficient~~ access to copies of the State Register and Code of State Rules. ~~or parts thereof desired by the citizens. The provisions of this section are enacted in order to provide a means of doing so pending any other means provided by law or legislative rule.~~ The State Register, the Code of State Rules and other publications shall be available in electronic format. A person may request a printed copy of such from the Secretary of State for a fee.
(b) All materials filed in the State Register shall be indexed daily in chronological order of filing with a brief description of the item filed and a columnar cross index to:
(1) Agency; ~~and~~
(2) ~~Section, article and chapter of the~~ Code citation to which it relates and by which it is filed in the State Register; and
(3) ~~such~~ Other information in the description or cross index as the Secretary of State believes will aid a ~~citizen~~ person in using the ~~chronological~~ index.
(c) ~~To give~~ ~~users of the Code of State Rules a means to know whether the rule is being~~ superseded by a version of the rule that has become effective, but not yet been final-filed, prepared, proofed and distributed, or may be superseded by a rule which is being proposed and promulgated pursuant to article three but not yet become final, The Secretary of State shall provide with each update of the Code of State Rules, a copy of the rule monitor and its cross index which shows the rules that have become effective but not yet distributed and the rules which may be superseded by a rule which is being proposed. The copy of the rule monitor distributed with the updates of the Code of State Rules shall state plainly that this version of the rule monitor only shows the status of the promulgation of rules as of the date of distribution of the update of the Code of State Rules, and that to obtain the most recent status of the rules, the user should consult the rule monitor in the most recent publication of the State Register. With the first distribution to the loose leaf version of the Code of State Rules the Secretary of State shall also distribute a divider where the current rule monitor shall be maintained. With the first distribution, the Secretary of State shall also include instructions, with a copy for insertion in or on the front of each volume of the loose-leaf versions of the Code of State Rules, to users on how the rule monitor can be utilized to determine whether the version of the rule in the Code of State Rules is currently in effect and instructions to users on how to use the rule monitor determining the version of the rule in the Code of State Rules currently in effect. This subsection is not to be construed to require that subscribers to the updates of the Code of State Rules receive a subscription to the State Register.
(d) The Secretary of State shall ~~cause to be duplicated in such number as shall be required, on white paper with three punches suitable for fastening in three-ring binders or electronic media~~ produce in an electronic format the permanent biennial State Register, the chronological index and other materials filed in the register, or any part by agency or section, article or chapter for subscription at a cost including labor, paper and postage, sufficient in ~~his~~ the Secretary of State's judgment to defray the expense of such ~~duplication~~ publication. The Secretary of State shall also offer, at least at monthly intervals, supplements to the published materials listed above. Any subscription for monthly supplements shall be offered annually and shall include the chronological index and materials related to ~~such~~ an agency ~~or agencies,~~ or ~~section, article or chapter of the~~ code citation as a person may designate. A person may limit the request to notices only, to notices and rules, or to notices and proposed rules, or any combination thereof.
(e) Every two years, the Secretary of State shall offer for purchase succeeding biennial permanent state registers which shall consist of all rules effective on the date of publication selected by the Secretary of State, which date shall be at least two years from the last ~~such~~ publication date, and materials filed in the State Register relating ~~thereto~~ to the rule. The cost of the succeeding biennial permanent State Register and for the portion relating to any agency or any ~~section, article or chapter of the~~ code citation which may be designated by a person ~~purchasing the same~~ shall be fixed in the same manner specified in ~~section eleven of this article~~ subsection (d) of this section.
(f) The Secretary of State may omit from any duplication made pursuant to subsection (e) of this section any rules the ~~duplication~~ publication of which would be unduly cumbersome, expensive or otherwise inexpedient, if a copy of such rules is made available from the original filing of such rule, at a price not exceeding the cost of ~~duplication~~ publication, and if the volume from which such rule is omitted includes a notice in that portion of the publication in which the rule would have been located, stating:
(1) The general subject matter of the omitted rule;
(2) Each ~~section, article and chapter of this~~ code citation to which the omitted rule relates; and
(3) The means by which a copy of the omitted rule may be obtained.
(g) The Secretary of State may only propose changes to the procedures outlined in the ~~section~~ above subsection by proposing a legislative rule under the provisions of section nine, article three of this chapter. ~~but may promulgate no rules containing those changes unless authorized by the Legislature pursuant to article three of this chapter.~~
(h) The Secretary of State shall promulgate for legislative approval in accordance with the provisions of article three, of this chapter a fees schedule for publications described in this section.
~~(h)~~ (i) ~~Beginning the first day of July, two thousand one, one half of~~ The fees and amounts collected for the sale of the State Register, the Code of State Rules and other copies or data provided by the Secretary of State shall be deposited in the state General Revenue Fund and one half of the fees in the service fees and collections account established by in accordance with section two, article one, chapter fifty-nine of this code for the operations of the office of the Secretary of State. Any balance remaining on the thirtieth day of June, two thousand one, in the existing special revenue account entitled 'State Register' as established by chapter one hundred twenty-one, acts of the Legislature, regular session, one thousand nine hundred eighty-two, shall be transferred to the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article."
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 465, Relating to utility service disconnection; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Boggs, and by unanimous consent, the bill (Com. Sub. for S. B. 465) was advanced to third reading with an amendment pending.
Com. Sub. for S. B. 507, Creating WV Innovative Mine Safety Technology Tax Credit Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking the remainder of the bill in its entirety and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-13AA-1, §11-13AA-2, §11-13AA-3, §11-13AA-4, §11-13AA-5, §11-13AA-6, §11-13AA-7, §11-13AA-8, §11-13AA-9, §11-13AA-10, §11-13AA-11, §11-13AA-12, §11-13AA-13 and §11-13AA-14; that §22A-1-4 of said code be amended and reenacted; and that §22A-11-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 13AA. WEST VIRGINIA INNOVATIVE MINE SAFETY TECHNOLOGY TAX CREDIT ACT.

§11-13AA-1. Short title.
This article may be cited as the 'West Virginia Innovative Mine Safety Technology Tax Credit Act.'
§11-13AA-2. Legislative findings and purpose.
The Legislature finds that the encouragement of new investment in innovative coal mine safety technology in this state is in the public interest and promotes the general welfare of the people of this state.
§11-13AA-3. Definitions.
(a) Any term used in this article has the meaning ascribed by this section, unless a different meaning is clearly required by the context of its use or by definition in this article.
(b) For purposes of this article, the term:
(1) 'Certified eligible safety property' means eligible safety property in which an eligible taxpayer has made qualified investment for which credit has been certified under this article.
(2) 'Coal mining company' means:
(A) Any person subject to tax imposed on the severance of coal by section three, article thirteen-a of this chapter, or
(B) Any person working as a contract miner of coal, which mines coal in this state, under contract with a person subject to tax imposed on the severance of coal by section three, article thirteen-a of this chapter.
(3) 'Director' means the Director of the Office of Miners' Health, Safety and Training or West Virginia Office of Miners' Health, Safety and Training established under article one, chapter twenty two-a of this code.
(4) 'Eligible safety property' means safety technology equipment, that at the time of acquisition, is on the list of approved innovative mine safety technology.
(5) 'Eligible taxpayer' means a coal mining company which purchases eligible safety property.
(6) 'List of approved innovative mine safety technology' means the list required to be compiled and maintained by the Mine Safety Technology Task Force and approved and published by the director under this article.
(7) 'Office of Miners' Health, Safety and Training' or 'West Virginia Office of Miners' Health, Safety and Training' means the Office of Miners' Health, Safety and Training established under article one, chapter twenty two-a of this code.
(8) 'Person' includes any corporation, limited liability company, or partnership.
(9) 'Qualified investment' means the eligible taxpayer's investment in eligible safety property pursuant to a qualified purchase as qualified and limited by section six of this article.
(10) 'Qualified purchase' means and includes only acquisitions of eligible safety property for use in this state.
(A) A lease of eligible safety property may constitute a qualified purchase if the lease was entered into and became effective at a time when the equipment is on the list of approved innovative mine safety technology, and if the primary term of the lease for the eligible safety property is five years or more. Leases having a primary term of less than five years do not qualify.
(B) 'Qualified purchase' does not include:
(i) Purchases or leases of realty or any cost for, or related to, the construction of any building, facility or structure attached to realty;
(ii) Purchases or leases of any property not exclusively used in West Virginia;
(iii) Repair costs including materials used in the repair, unless for federal income tax purposes, the cost of the repair must be capitalized and not expensed;
(iv) Motor vehicles licensed by the Department of Motor Vehicles;
(v) Clothing;
(vi) Airplanes;
(vii) Off-premises transportation equipment;
(viii) Leases of tangible personal property having a primary term of less than five years shall not qualify;
(ix) Property that is used outside this state; and
(x) Property that is acquired incident to the purchase of the stock or assets of an industrial taxpayer, which property was or had been used by the seller in his or her industrial business in this state, or in which investment was previously the basis of a credit against tax taken under any other article of this chapter.
(C) Acquisitions, including leases, of eligible safety property may constitute qualified purchases for purposes of this article only if:
(i) The property is not acquired from a person whose relationship to the person acquiring it would result in the disallowance of deductions under section 267 or 707(b) of the United States Internal Revenue Code of 1986, as amended;
(ii) The property is not acquired from a related person or by one component member of a controlled group from another component member of the same controlled group. The Tax Commissioner may waive this requirement if the property was acquired from a related party for its then fair market value; and
(iii) The basis of the property for federal income tax purposes, in the hands of the person acquiring it, is not determined, in whole or in part, by reference to the federal adjusted basis of the property in the hands of the person from whom it was acquired; or under Section 1014(e) of the United States Internal Revenue Code of 1986, as amended.
(11) 'Safety technology' means depreciable tangible personal property and equipment, other than clothing, principally designed to directly minimize workplace injuries and fatalities in coal mines.
(12) 'Taxpayer' means any person subject to any of the taxes imposed by article thirteen-a, twenty-three or twenty-four of this chapter.
§11-13AA-4. List of approved innovative mine safety technology. (a) List of approved innovative mine safety technology. -- The Mine Safety Technology Task Force, established in section two, article eleven, chapter twenty-two-a of this code, shall annually compile a proposed list of approved innovative mine safety technologies as required by subsection (f), section three, article eleven, chapter twenty-two-a of this code. The list shall be transmitted to the director for approval. The director has thirty days to approve or amend the list. At the expiration of thirty days, the director shall publish the list of approved innovative mine safety technologies. The list shall describe and specifically identify safety equipment for use in West Virginia coal mines which, in the fiscal year when the equipment is added to the list, is not required by the Mine Safety and Health Administration of the United States Department of Labor or the West Virginia Office Of Miners' Health, Safety And Training or any other state or federal agency, to be used in a coal mine or on a mine site or on any other industrial site. Safety equipment shall remain on the list from year to year until the director removes it from the list. The Office of Miners' Health, Safety and Training may establish by legislative rule or interpretive rule a shorter time period for issuance of and updating of the list of approved innovative mine safety technologies.
(b) It is the intent of the Legislature that the list of approved innovative mine safety technologies include only safety equipment that is depreciable tangible personal property for federal income tax purposes, which is so new to the industry and so innovative in concept, design, operation or performance that, in the fiscal year when it is added to the list of approved innovative mine safety technologies, the equipment has not yet been adopted by the Federal Mine Safety and Health Administration or the West Virginia Office of Miners Health, Safety and Training or any other state or federal agency as required equipment to be used in a coal mine or on a mine site or on any other industrial site.
(c) Delisting. -- (1) If any item of equipment or any line of equipment or class of equipment is listed on the list of approved innovative mine safety technologies in any fiscal year, but then is subsequently adopted by the Federal Mine Safety and Health Administration or the West Virginia Office of Mine Safety or any other state or federal agency as required equipment to be used in a coal mine or on a mine site or on any other industrial site, the equipment shall be removed from the list of approved innovative mine safety technologies compiled and issued for the next succeeding periodic issuance thereafter of the list of approved innovative mine safety technologies.
(2) If it is determined by the director that any item of equipment or any line of equipment or class of equipment that is listed on the list of approved innovative mine safety technology has ceased to be innovative in concept, design, operation or performance, or is ineffective, or has failed to meet the expectations of the Mine Safety Technology Task Force, or has failed to prove its value in directly minimizing workplace injuries and fatalities in coal mines, the equipment shall be removed from the list of approved innovative mine safety technologies that is compiled and issued for the next succeeding periodic issuance of the list of approved innovative mine safety technologies after the determination has been reached.
(3) However, any eligible taxpayer who invested in the equipment as certified eligible safety property during the time the equipment was lawfully listed on the list of approved innovative mine safety technologies, shall not forfeit the credit authorized by this article as a result of the delisting of the equipment under either subdivision (1) or subdivision (2) of this subsection, so long as the requirements of this article are otherwise fulfilled by the taxpayer for entitlement to the credit.
§11-13AA-5. Amount of credit allowed.
(a)Credit allowed. -- For tax years beginning after December 31, 2010, there is allowed to eligible taxpayers a credit against the taxes imposed by articles twenty-three and twenty-four of this chapter. The amount of credit shall be determined as provided in this section.
(b) Amount of credit allowable. -- The amount of allowable credit under this article is equal to fifty percent of the qualified investment as determined in section six of this article, and shall reduce the business franchise tax imposed under article twenty-three of this chapter and the corporation net income tax imposed under article twenty-four of this chapter, in that order, subject to the following conditions and limitations:
(1) The amount of credit allowable is applied over a five-year period, at the rate of one-fifth thereof per taxable year, beginning with the taxable year in which the eligible safety property is first placed in service or use in this state.
(2) Business franchise tax. -- The credit is applied to reduce the business franchise tax imposed under article twenty-three of this chapter determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax. The amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty-three of this chapter, below fifty percent of the amount which would be imposed for the taxable year in the absence of this credit against tax.
(3) Corporation net income tax. -- After application of subdivision (2) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under article twenty- four of this chapter determined before application of any other allowable credits against tax. The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed for the taxable year in the absence of this credit against tax.
(4) Pass-through entities. -- (A) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit after application of subdivisions (2) and (3) of this subsection is allowed as a credit against the taxes imposed by article twenty-four of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty-four of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.
(B) The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes.
(5) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate any unused credit after application of subdivisions (2) and (3) of this subsection) among their members in the same manner as profits and losses are allocated for the taxable year; and
(6) No credit is allowed under this article against any tax imposed by article twenty-one of this chapter.
(c) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance. Any unused credit is forfeited.
(d) No tax credit is allowed or may be applied under this article until the taxpayer seeking to claim the tax credit has:
(1) Filed, with the Office of Miners' Health, Safety and Training, a written application for certification of the proposed tax credit; and
(2) Received, from the Office of Miners' Health, Safety and Training, certification of the amount of tax credit to be allocated to the eligible taxpayer.
(e) No more than $2 million of the tax credits allowed under this article shall be allocated by the Office of Miners' Health, Safety and Training during any fiscal year. The Office of Miners' Health, Safety and Training shall allocate the tax credits in the order the applications therefor are received.
(f) The total amount of tax credit that may be used in any taxable year by any eligible taxpayer in combination with the owners of the eligible taxpayer under this article may not exceed $100,000.
(g) Applications for certification of the proposed tax credit shall contain such information and be in such detail and in such form as required by the Office of Miners' Health, Safety and Training.
(h) The Tax Commissioner may prescribe the forms and schedules as necessary or appropriate for effective, efficient and lawful administration of this article.
(i) Notwithstanding the provisions of section five-d, article ten of this chapter, and notwithstanding any other provision of this code, the Tax Commissioner and Office of Miners' Health, Safety and Training may exchange tax information and other information as determined by the Tax Commissioner to be useful and necessary for the effective oversight and administration of the credit authorized pursuant to this article.
§11-13AA-6. Qualified investment.
(a) General. -- The qualified investment is one hundred percent of the cost for eligible safety property pursuant to a qualified purchase, which is placed in service or use in this state by the eligible taxpayer during the tax year.
(b) Placed in service or use.-- For purposes of the credit allowed by this article, property is considered placed in service or use in the earlier of the following taxable years:
(1) The taxable year in which, under the taxpayer's depreciation practice, the period for federal income tax depreciation with respect to the property begins; or
(2) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.
(c) Cost. -- For purposes of this article, the cost for eligible safety property pursuant to a qualified purchase is determined under the following rules:
(1) Trade-ins. -- Cost for eligible safety property will not include the value of property given in trade or exchange for eligible safety property pursuant to a qualified purchase;
(2) Damaged, destroyed or stolen property. -- If eligible safety property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost for replacement of the eligible safety property, will not include any insurance proceeds received in compensation for the loss;
(3) Rental property. -- The cost for eligible safety property acquired by lease for a term of at least five years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed ten years; and
(4) Property purchased for multiple use. -- Any cost of acquisition of property that is not principally and directly used to minimize workplace injuries and fatalities in a coal mine does not qualify as qualified investment for purposes of this article.
§11-13AA-7. Forfeiture of unused tax credits.
Disposition of property or cessation of use. -- If during any taxable year, property with respect to which a tax credit has been allowed under this article:
(1) Is disposed of prior to the end of the fourth tax year subsequent to the end of the tax year in which the property was placed in service or use; or
(2) Ceases to be used in a coal mine of the eligible taxpayer in this state prior to the end of the fourth tax year subsequent to the end of the tax year in which the property was placed in service or use, then the unused portion of the credit allowed for such property is forfeited for the tax year in which the disposition or cessation of use occurred and all ensuing years.
§11-13AA-8. Transfer of certified eligible safety property to successors.
(a) Mere change in form of business. -- Certified eligible safety property may not be treated as disposed of under section seven of this article, by reason of a mere change in the form of conducting the business as long as the certified eligible safety property is retained in a business in this state for use in a coal mine in West Virginia, and the taxpayer retains a controlling interest in the successor business. In this event, the successor business is allowed to claim the amount of credit still available with respect to the certified eligible safety property transferred, and the taxpayer (transferor) may not be required to forfeit the credit for the years remaining at the time of transfer in the original five year credit period.
(b) Transfer or sale to successor. -- Certified eligible safety property will not be treated as disposed of under section seven of this article by reason of any transfer or sale to a successor business which continues to use the certified eligible safety property in a coal mine in West Virginia. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article in the original five year credit period for each subsequent taxable year, and the transferor shall not be required to forfeit the credit for subsequent years. Upon transfer or sale, the successor shall acquire the amount of credit that remains available under this article for each taxable year subsequent to the taxable year of the transferor during which the transfer occurred and, for the year of transfer, an amount of annual credit for the year in the same proportion as the number of days remaining in the transferor's taxable year bears to the total number of days in the taxable year and the transferor shall not be required to redetermine the amount of credit allowed in earlier years.
§11-13AA-9. Identification of investment credit property.
Every taxpayer who claims credit under this article shall maintain sufficient records to establish the following facts for each item of certified eligible safety property:
(1) Its identity;
(2) Its actual or reasonably determined cost;
(3) Its straight-line depreciation life;
(4) The month and taxable year in which it was placed in service;
(5) The amount of credit taken; and
(6) The date it was disposed of or otherwise ceased to be actively and directly used in a coal mine in this state.
§11-13AA-10. Failure to keep records of certified eligible safety property.
A taxpayer who does not keep the records required for certified eligible safety property and the credit authorized under this article, is subject to the following rules:
(1) A taxpayer is treated as having disposed of, during the taxable year, any certified eligible safety property which the taxpayer cannot establish was still on hand and used in a coal mine in this state at the end of that year; and
(2) If a taxpayer cannot establish when certified eligible safety property reported for purposes of claiming this credit returned during the taxable year was placed in service, the taxpayer is treated as having placed it in service in the most recent prior year in which similar property was placed in service, unless the taxpayer can establish that the property placed in service in the most recent year is still on hand and used in a coal mine in this state at the end of that year. In that event, the taxpayer will be treated as having placed the returned property in service in the next most recent year.
§11-13AA-11. Tax credit review and accountability.
(a) Beginning on August 1, 2011, and August 1 of every year thereafter, the Tax Commissioner shall submit to the Governor, the President of the Senate and the Speaker of the House of Delegates a tax credit review and accountability report evaluating the cost of the credit allowed under this article during the most recent period for which information is available. The criteria to be evaluated includes, but is not limited to, for each year:
(1) The numbers of taxpayers claiming the credit; and
(2) The cost of the credit.
(b) Taxpayers claiming the credit shall provide whatever information the Tax Commissioner requires to prepare the report: Provided, That the information is subject to the confidentiality and disclosure provisions of sections five-d and five-s, article ten of this chapter. If, in any reporting period under this section, fewer than ten eligible taxpayers have taken or applied for the credit authorized under this article, then no report shall be filed for that reporting period under this section.
§11-13AA-12. Disclosure of tax credits.
Notwithstanding section five-d, article ten of this chapter or any other provision in this code to the contrary, the Tax Commissioner shall annually publish in the State Register the name and address of every eligible taxpayer and the amount of any tax credit asserted under this article.
§11-13AA-13. Rules.
The Tax Commissioner and the Office of Miners' Health, Safety and Training may each promulgate rules in accordance with article three, chapter twenty-nine-a of this code to carry out the policy and purposes of this article, to provide any necessary clarification of the provisions of this article and to efficiently provide for the general administration of this article.
§11-13AA-14. Termination.
The tax credit authorized in this article shall terminate December 31, 2013.
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.

ARTICLE 1. OFFICE OF MINERS' HEALTH, SAFETY AND TRAINING; ADMINISTRATION; ENFORCEMENT.

§22A-1-4. Powers and duties of the Director of the Office of Miners' Health, Safety and Training.

(a) The Director of the Office of Miners' Health, Safety and Training is hereby empowered and it is his or her duty to administer and enforce such provisions of this chapter relating to health and safety inspections and enforcement and training in surface and underground coal mines, underground clay mines, open pit mines, cement manufacturing plants and underground limestone and sandstone mines.
(b) The Director of the Office of Miners' Health, Safety and Training has full charge of the division. The director has the power and duty to:
(1) Supervise and direct the execution and enforcement of the provisions of this article.
(2) Employ such assistants, clerks, stenographers and other employees as may be necessary to fully and effectively carry out his or her responsibilities and fix their compensation, except as otherwise provided in this article.
(3) Assign mine inspectors to divisions or districts in accordance with the provisions of section eight of this article as may be necessary to fully and effectively carry out the provisions of this law, including the training of inspectors for the specialized requirements of surface mining, shaft and slope sinking and surface installations and to supervise and direct such mine inspectors in the performance of their duties.
(4) Suspend, for good cause, any such mine inspector without compensation for a period not exceeding thirty days in any calendar year.
(5) Prepare report forms to be used by mine inspectors in making their findings, orders and notices, upon inspections made in accordance with this article.
(6) Hear and determine applications made by mine operators for the annulment or revision of orders made by mine inspectors, and to make inspections of mines, in accordance with the provisions of this article.
(7) Cause a properly indexed permanent and public record to be kept of all inspections made by himself or herself or by mine inspectors.
(8) Make annually a full and complete written report of the administration of the office to the Governor and the Legislature of the state for the year ending June 30. The report shall include the number of visits and inspections of mines in the state by mine inspectors, the quantity of coal, coke and other minerals (excluding oil and gas) produced in the state, the number of individuals employed, number of mines in operation, statistics with regard to health and safety of persons working in the mines including the causes of injuries and deaths, improvements made, prosecutions, the total funds of the office from all sources identifying each source of such funds, the expenditures of the office, the surplus or deficit of the office at the beginning and end of the year, the amount of fines collected, the amount of fines imposed, the value of fines pending, the number and type of violations found, the amount of fines imposed, levied and turned over for collection, the total amount of fines levied but not paid during the prior year, the titles and salaries of all inspectors and other officials of the office, the number of inspections made by each inspector, the number and type of violations found by each inspector. ~~Provided,~~ ~~That~~ However, no inspector is may be identified by name in this report. ~~Such~~ The reports shall be filed with the Governor and the Legislature on or before December 31 of the same year for which it was made, and shall upon proper authority be printed and distributed to interested persons.
(9) Call or subpoena witnesses, for the purpose of conducting hearings into mine fires, mine explosions or any mine accident; to administer oaths and to require production of any books, papers, records or other documents relevant or material to any hearing, investigation or examination of any mine permitted by this chapter. Any witness so called or subpoenaed shall receive $40 per diem and shall receive mileage at the rate of $0.15 for each mile actually traveled, which shall be paid out of the State Treasury upon a requisition upon the State Auditor, properly certified by such witness.
(10) Institute civil actions for relief, including permanent or temporary injunctions, restraining orders, or any other appropriate action in the appropriate federal or state court whenever any operator or the operator's agent violates or fails or refuses to comply with any lawful order, notice or decision issued by the director or his or her representative.
(11) Perform all other duties which are expressly imposed upon him or her by the provisions of this chapter.
(12) Impose reasonable fees upon applicants taking tests administered pursuant to the requirements of this chapter.
(13) Impose reasonable fees for the issuance of certifications required under this chapter.
(14) Prepare study guides and other forms of publications relating to mine safety and charge a reasonable fee for the sale of the publications.
(15) Make all records of the office open for inspection of interested persons and the public.
(c) The Director of the Office of Miners' Health, Safety and Training, or his or her designee, upon receipt of the list of approved innovative mine safety technologies from the Mine Safety Technology Task force, has thirty days to approve or amend the list as provided in section four, article thirteen-aa, chapter eleven of this code. At the expiration of the time period, the director shall publish the list of approved innovative mine safety technologies as provided in section four, article thirteen-aa, chapter eleven of this code.
ARTICLE 11. MINE SAFETY TECHNOLOGY.
§22A-11-3. Task force powers and duties.
(a) The task force shall provide technical and other assistance to the office related to the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two, of this chapter, ~~as amended and reenacted during the regular session of the Legislature in 2006~~ and requirements for other mine safety technologies.
(b) The task force, working in conjunction with the director, shall continue to study issues regarding the commercial availability, the functional and operational capability and the implementation, compliance and enforcement of the following protective equipment:
(1) Self-contained self-rescue devices, as provided in subsection (f), section fifty-five, article two of this chapter;
(2) Wireless emergency communication devices, as provided in subsection (g), section fifty- five, article two of this chapter;
(3) Wireless emergency tracking devices, as provided in subsection (h), section fifty-five, article two of this chapter; and
(4) Any other protective equipment required by this chapter or rules promulgated in accordance with the law that the director determines would benefit from the expertise of the task force.
(c) The task force shall on a continuous basis study, monitor and evaluate:
(1) The potential for enhancing coal mine health and safety through the application of existing technologies and techniques;
(2) Opportunities for improving the integration of technologies and procedures to increase the performance and survivability of coal mine health and safety systems;
(3) Emerging technological advances in coal mine health and safety; and
(4) Market forces impacting the development of new technologies, including issues regarding the costs of research and development, regulatory certification and incentives designed to stimulate the marketplace.
(d) On or before July 1 of each year, the task force shall submit a report to the Governor and the Board of Coal Mine Health and Safety that shall include, but not be limited to:
(1) A comprehensive overview of issues regarding the implementation of the new technological requirements set forth in the provisions of section fifty-five, article two, of this chapter, or rules promulgated in accordance with the law;
(2) A summary of any emerging technological advances that would improve coal mine health and safety;
(3) Recommendations, if any, for the enactment, repeal or amendment of any statute which would enhance technological advancement in coal mine health and safety; and
(4) Any other information the task force considers appropriate.
(e) In performing its duties, the task force shall, where possible, consult with, among others, mine engineering and mine safety experts, radiocommunication and telemetry experts and relevant state and federal regulatory personnel.
(f) The task force shall annually compile a proposed list of approved innovative mine safety technologies and transmit the list to the Director of the Office of Miners' Health, Safety and Training as provided in section four, article thirteen-aa, chapter eleven of this code. The list shall be approved by a unanimous vote of the task force.
(g) Appropriations to the task force to effectuate the purposes of this article shall be made to one or more budget accounts established for that purpose."
There being no further amendments, the bill was ordered to third reading.
S. B. 510, Extending DNR license and stamp fees sunset provision; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 567, Creating Nonprofit Adventure and Recreational Responsibility Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY RESPONSIBILITY ACT.

§20-16-1. Short title.
This article may be cited as the Nonprofit Adventure and Recreational Activity Responsibility Act.
§20-16-2. Legislative purpose.
The Legislature finds that West Virginia is blessed by geography and natural features that make it ideal for a host of adventure and recreational activities attractive to nonprofit youth organizations interested in training and inspiring thousands of young people from other parts of the United States and throughout the world. The location by these organizations of facilities within the state will contribute significantly to the economy of West Virginia, and enhance the state's reputation as a place to visit and transact business. Because it is recognized that there are inherent risks in various adventure and recreational activities which should be understood by participants therein and which are essentially impossible for the organizations and their providers to eliminate, it is the purpose of this article to define those areas of responsibility and those affirmative acts for which these nonprofit organizations and their providers of adventure and recreational activities shall be liable for loss, damage or injury suffered by participants, and to further define those risks which the participants expressly assume and for which there can be no recovery.
§20-16-3. Definitions.
In this article, unless a different meaning plainly is required:
(1) 'Adventure or recreational activity' means any program or activity sponsored by a nonprofit youth organization and conducted by the organization or its provider that involves inherent risks, including, but not limited to:
(A) All-terrain vehicle activities and similar activities, including all activities within the ATV Responsibility Act in article fifteen of this chapter;
(B) Biking, mountain-biking and similar activities;
(C) Canopy activities, zip-lines and similar activities;
(D) Climbing and repelling and similar activities in improved and natural areas, including climbing walls,;
(E) Equestrian activities and similar activities, including all activities within the Equestrian Activities Responsibility Act in article four of this chapter;
(F) Firearms training and similar activities;
(G) Hiking, backpacking, camping and similar activities;
(H) Paintball and similar activities;
(I) Rope initiatives, cope and confidence courses, challenge courses, slacklines, challenge courses and similar activities;
(J) Skating, including ice skating, rollerblading, and similar activities;
(K) Snow activities, including snowshoeing, snow skiing, sledding, snowmobiling, and similar activities, including all activities within the Skiing Responsibility Act in article three-A of this chapter;
(L) Spelunking, caving, and similar activities;
(M) Water sports, including swimming, diving, canoeing, kayaking, boating, sailing, scuba diving, water skiing, and similar activities, including all activities within the Whitewater Responsibility Act in article three-B of this chapter;
(N) Windsurfing and similar activities.
(2) 'Employee' means an officer, agent, employee, servant, or volunteer, whether compensated or not, whether full time or not, who is authorized to act and is acting within the scope of his or her employment or duties with the nonprofit youth organization or provider.
(3) 'Nonprofit youth organization' means any nonprofit organization, including any subsidiary, affiliate or other related entity within its corporate or other business structure, that has been chartered by the United States Congress to train young people to do things for themselves and others, and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.
(4) 'Participant' means any person engaging in an adventure or recreational activity.
(5) 'Provider' means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, and any other legal entity which engages, with or without compensation, in organizing, promoting, presenting or providing or assisting in providing an adventure or recreational activity sponsored by a nonprofit youth organization, including one that allows the nonprofit youth organization the use of its land for the adventure or recreational activity.
§20-16-4. Duties of a nonprofit youth organization or provider.
Every nonprofit youth organization or provider shall:
(1) Make reasonable and prudent efforts to determine the ability of a participant to safely engage in the adventure or recreational activity;
(2) Make known to any participant any dangerous traits or characteristics or any physical impairments or conditions related to a particular adventure or recreational activity, of which the nonprofit youth organization or provider knows or through the exercise of due diligence could know;
(3) Make known to any participant any dangerous condition as to land or facilities under the lawful possession and control of the nonprofit youth organization or provider, of which the nonprofit youth organization or provider knows or through the exercise of due diligence could know, by advising the participant in writing or by conspicuously posting warning signs upon the premises;
(4) Assure that each participant has or is provided all equipment reasonably necessary for all activities covered by this article and, in providing equipment to a participant, make reasonable and prudent efforts to inspect such equipment to assure that it is in proper working condition and safe for use in the adventure or recreational activity;
(5) Prepare and present to each participant or prospective participant, for his or her inspection and signature, a statement which clearly and concisely explains the liability limitations, restrictions and responsibilities set forth in this article;
(6) Any minor under the age of sixteen will remain under the supervision of and within sight of an agent or employee of the nonprofit youth organization at all times.
§20-16-5. Duties of participants.
It is recognized that the adventure and recreational activities described in this article are hazardous to participants, regardless of all feasible safety measures which can be taken.
Each participant in an adventure or recreational activity expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an activity. Each participant shall have the sole individual responsibility for knowing the range of his or her own ability to participate in a particular adventure or recreational activity, and it shall be the duty of each participant to act within the limits of the participant's own ability, to heed all posted warnings, to act in accordance with the instructions of any employee of the non-profit youth organization or provider, to perform an adventure or recreational activity only in an area or facility designated by the nonprofit youth organization or provider and to refrain from acting in a manner which may cause or contribute to the injury of anyone. Any participant under the age of fourteen is presumed incapable of comparative negligence or assumption of the risk. Any participant over the age of fourteen will be subject to the common law presumptions as to their acts and or omissions.
A participant involved in an accident shall not depart from the area or facility where the adventure or recreational activity took place without leaving personal identification, including name and address, or without notifying the proper authorities, or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.
§20-16-6. Liability of nonprofit youth organization or provider.
(a) A nonprofit youth organization or provider shall be liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered. A nonprofit youth organization or provider shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the nonprofit youth organization or provider.
(b) A nonprofit youth organization or provider shall be liable for acts or omissions which constitute gross negligence or willful and wanton conduct which is the proximate cause of injury to a participant.
(c) A nonprofit youth organization or provider shall be liable for an intentional injury which he or she inflicts upon a participant.
(d) Every nonprofit youth organization and any provider for such non-profit youth organization shall carry public liability insurance in limits of no less than $500,000 per person, $1,000,000 per occurrence and $50,000 for property damage with coverage extending to any employee of the non-profit youth organization or provider in the course of their duties as an employee or volunteer. The failure to have in effect the insurance required by this section shall prevent the non- profit youth organization or provider from relying on the provisions of this article in any civil action brought by a participant.
§20-16-7. Liability of participants.
Any participant shall be liable for injury, loss or damage resulting from violations of the duties set forth in section five of this article: Provided, That none of the provisions in this article shall modify or eliminate any other statutory or common law provisions which specifically relate to or concern liability of minors or the capacity of minors to legally enter into contracts.
§20-16-8. Applicability of article.
The provisions of this article are in addition to provisions of articles three-A, three-B, four and fifteen of this chapter, and are to be construed in pari materia."
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 596, Exempting Adjutant General and National Guard from certain leasing and accounting requirements; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 610, Extending statutory exemption to certain out-of-school time programs; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page two, by striking out everything after the enacting section and inserting in lieu thereof the following:

"ARTICLE 2B. DUTIES OF SECRETARY OF HEALTH AND HUMAN RESOURCES FOR CHILD WELFARE.

§49-2B-3. Licensure, certification, approval and registration requirements.
(a) Any person, corporation or child welfare agency, other than a state agency, which operates a residential child care center shall obtain a license from the department.
(b) Any residential child care facility, day care center or any child-placing agency operated by the state shall obtain approval of its operations from the secretary: Provided, That this requirement does not apply to any juvenile detention facility or juvenile correctional facility operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody. The facilities and placing agencies shall maintain the same standards of care applicable to licensed facilities, centers or placing agencies of the same category.
(c) Any family day care facility which operates in this state, including family day care facilities approved by the department for receipt of funding, shall obtain a statement of certification from the department.
(d) Every family day care home which operates in this state, including family day care homes approved by the department for receipt of funding, shall obtain a certificate of registration from the department.
(e) This section does not apply to:
(1) A kindergarten, preschool or school education program which is operated by a public school or which is accredited by the state Department of Education, or any other kindergarten, preschool or school programs which operate with sessions not exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care of children for brief periods while parents are shopping, engaging in recreational activities, attending religious services or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily used for temporary residential care of children for treatment, convalescence or testing;
(5) Persons providing family day care solely for children related to them; or
(6) Any juvenile detention facility or juvenile correctional facility operated by or under contract with the Division of Juvenile Services, created pursuant to section two, article five-e of this chapter, for the secure housing or holding of juveniles committed to its custody.
(7) Any out-of-school time program that has been awarded a grant by the West Virginia Department of Education to provide out-of-school time programs to kindergarten through twelfth grade students when the program is monitored by the West Virginia Department of Education; or
(8) Any out-of-school time program serving children six years of age or older and meets all of the following requirements, or is an out-of-school time program that is affiliated and in good standing with a national Congressionally chartered organization and meets all of the following requirements:
(i) The program is located in a facility that meets all fire and health codes;
(ii) The program performs background checks on all volunteers and staff;
(iii) The program's primary source of funding is not from fees for service; and,
(iv) The program has a formalized monitoring system in place.
(f) The secretary is ~~hereby~~ authorized to issue an emergency rule relating to conducting a survey of existing facilities in this state in which children reside on a temporary basis in order to ascertain whether they should be subject to licensing under this article or applicable licensing provisions relating to behavioral health treatment providers.
(g) Any informal family child care home or relative family child care home may voluntarily register and obtain a certificate of registration from the department.
(h) All facilities or programs that provide out-of-school time care shall register with the department upon commencement of operations and on an annual basis thereafter. The department shall obtain information such as the name of the facility or program, the description of the services provided and any other information relevant to the determination by the department as to whether the facility or program meets the criteria for exemption under this section.
(i) Any child care service that is licensed or receives a certificate of registration shall have a written plan for evacuation in the event of fire, natural disaster or other threatening situation that may pose a health or safety hazard to the children in the child care service.
(1) The plan shall include, but not be limited to:
(A) A designated relocation site and evacuation;
(B) Procedures for notifying parents of the relocation and ensuring family reunification;
(C) Procedures to address the needs of individual children including children with special needs;
(D) Instructions relating to the training of staff or the reassignment of staff duties, as appropriate;
(E) Coordination with local emergency management officials; and
(F) A program to ensure that appropriate staff are familiar with the components of the plan.
(2) A child care service shall update the evacuation plan by December 31, of each year. If a child care service fails to update the plan, no action shall be taken against the child care service's license or registration until notice is provided and the child care service is given thirty days after the receipt of notice to provide an updated plan.
(3) A child care service shall retain an updated copy of the plan for evacuation and shall provide notice of the plan and notification that a copy of the plan will be provided upon request to any parent, custodian or guardian of each child at the time of the child's enrollment in the child care service and when the plan is updated.
(4) All child care centers and family child care facilities shall provide the plan and each updated copy of the plan to the Director of the Office of Emergency Services in the county where the center or facility is located."
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 614, Relating to PSC approval of high voltage transmission line construction; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page four, section eleven-a, line forty-six by striking out the colon, inserting a period.
On page four, section eleven-a, line forty-six by striking our the words "Provided, That notice" and inserting in lieu thereof the word "Notice".
On page five, section eleven-a, line sixty-three, by striking out the colon and inserting in lieu thereof a semi-colon.
On page five, section eleven-a, line sixty-three by striking out the words "Provided, That the commission includes written findings articulating how its decision is made" and inserting in lieu thereof "(2) Will be".,
And,
On page five, section eleven-a, line sixty-six by renumbering the (2) to a (3).
There being no further amendments, the bill was ordered to third reading.
Com. Sub. for S. B. 696, Relating to limited liability partnerships; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Leaves of Absence
At the request of Delegate Boggs, and by unanimous consent, leaves of absence for the day were granted Delegates Argento and Romine.
Delegate Doyle announced that he was absent when the vote was taken on Roll No.275 , and that had he been present, he would have voted "Yea" thereon.
At 3:14: p.m., the House of Delegates adjourned until 11:00 a.m., Friday, March 12, 2010.