Senate Bill No. 141
(By Senator Yoder)
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[Introduced January 23, 1995; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to repeal sections nine, fifteen and sixteen, article
two-a, chapter twenty-nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section eighteen, article fifteen, chapter eleven of
said code; to amend and reenact sections one, two, three,
four, five, seven, eleven, twenty and twenty-two, article
two-a, chapter twenty-nine of said code; to further amend
said article by adding thereto six new sections, designated
sections eleven-a, eleven-b, eleven-c, eleven-d, eleven-e
and eleven-f; and to amend and reenact section fifteen,
article two-b of said chapter, all relating to the state
aeronautics commission generally; repealing provisions
providing for state airways; repealing the licensing of air
schools and aeronautics instructors; repealing provisions
providing for state airways; repealing certificates for
airport sites and licensing airports; amending definitions; providing for creation and membership of state aeronautics
commission; authorizing powers and duties of commission;
providing for organization of commission, its meetings,
report and offices; providing for director of aeronautics,
the appointment, qualifications, compensation, power and
duties and for administrative and other assistance; amending
federal aid requirements; prohibiting the operation of
aircraft while intoxicated; penalties; providing for implied
consent to test; administration at direction of
law-enforcement officer; designation of type of test;
definition of law-enforcement officer; preliminary analysis
of breath to determine alcoholic content of blood; how blood
test administered; additional test at option of person
tested; use of test results; certain immunity from liability
incident to administering test; interpretation and use of
chemical test; right to demand test; fee for withdrawing
blood sample and making urine test; payment for fees;
enforcement of aeronautics laws; authorizing commission
orders; notices; providing opportunity for hearings;
offenses and criminal penalties; and tax on gasoline and
special fuel.
Be it enacted by the Legislature of West Virginia:
That sections nine, fifteen and sixteen, article two-a,
chapter twenty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be repealed; that section eighteen, article fifteen, chapter eleven of said code be amended
and reenacted; that sections one, two, three, four, five, seven,
eleven, twenty and twenty-two, article two-a, chapter twenty-nine
be amended and reenacted; that said article be further amended by
adding thereto six new sections, designated sections eleven-a,
eleven-b, eleven-c, eleven-d, eleven-e and eleven-f; and that
section fifteen, article two-b of said chapter be amended and
reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 15. CONSUMERS SALES TAX.
§11-15-18. Tax on gasoline and special fuel.
(a)
General. -- All sales of gasoline or special fuel by
distributors or importers, except when to another distributor for
resale in this state, when delivery is made in this state, shall
be subject to the tax imposed by this article, notwithstanding
any provision of this article to the contrary. Sales of gasoline
or special fuel by a person who paid the tax imposed by this
article on his purchases of fuel, shall not thereafter be again
taxed under the provisions of this article. This section shall
be construed so that all gallons of gasoline or special fuel sold
and delivered, or delivered, in this state are taxed one time.
(b)
Measure of tax. -- The measure of tax on sales of
gasoline or special fuel by distributors or importers shall be
the average wholesale price as defined and determined in
subsection (c), section thirteen, article fifteen-a of this chapter. For purposes of maintaining revenue for highways, and
recognizing that the tax imposed by this article is generally
imposed on gross proceeds from sales to ultimate consumers,
whereas the tax on gasoline and special fuel herein is imposed
on the average wholesale price of such gasoline and special fuel;
in no case, for the purposes of taxation under this article,
shall such average wholesale price be deemed to be less than
ninety-seven cents per gallon of gasoline or special fuel for all
gallons of gasoline and special fuel sold during the reporting
period, notwithstanding any provision of this article to the
contrary.
(c)
Definitions. -- For purposes of this section:
(1) "Aircraft" shall include any airplane or helicopter that
lands in this state on a regular or routine basis, and transports
passengers or freight.
(2) "Aircraft fuel" shall mean gasoline and special fuel
suitable for use in any aircraft engine.
(3) "Distributor" shall mean and include every person:
(A) Who produces, manufactures, processes or otherwise
alters gasoline or special fuel in this state for use or for
sale; or
(B) Who engages in this state in the sale of gasoline or
special fuel for the purpose of resale or for distribution; or
(C) Who receives gasoline or special fuel into the cargo
tank of a tank wagon in this state for use or sale by such person.
(4) "Gasoline" shall mean and include any product commonly
or commercially known as gasoline, regardless of classification,
suitable for use as fuel in an internal combustion engine, except
special fuel as hereinafter defined, including any product
obtained by blending together any one or more products, with or
without other products, if the resultant product is capable of
the same use.
(5) "Importer" shall mean and include every person, resident
or nonresident, other than a distributor, who receives gasoline
or special fuel outside this state for use, sale or consumption
within this state, but shall not include the fuel in the supply
tank of a motor vehicle that is not a motor carrier.
(6) "Motor carrier" shall mean and include: (A) Any
passenger vehicle which has seats for more than nine passengers
in addition to the driver, any road tractor, tractor truck or any
truck having more than two axles, which is operated or caused to
be operated, by any person on any highway in this state using
gasoline or special fuel; and (B) any aircraft, barge or other
watercraft, or locomotive transporting passengers or freight in
or through this state.
(7) "Motor vehicle" shall mean and include automobiles,
motor carriers, motor trucks, motorcycles and all other vehicles
or equipment, engines or machines which are operated or propelled
by combustion of gasoline or special fuel.
(8) "Retail dealer of gasoline or special fuel" shall mean
and include any person not a distributor, who sells gasoline or
special fuel from a fixed location in this state to users.
(9) "Special fuel" shall mean and include any gas or liquid,
other than gasoline, used or suitable for use as fuel in an
internal combustion engine. The term "special fuel" shall
include products commonly known as natural or casinghead gasoline
and shall include gasoline and special fuel for heating any
private residential dwelling, building or other premises; but
shall not include any petroleum product or chemical compound such
as alcohol, industrial solvent, heavy furnace oil, lubricant,
etc., not commonly used nor practicably suited for use as fuel in
an internal combustion engine.
(10) "Supply tank" shall mean any receptacle on a motor
vehicle from which gasoline or special fuel is supplied for the
propulsion of the vehicle or equipment located thereon, exclusive
of a cargo tank. A supply tank includes a separate compartment
of a cargo tank used as a supply tank, and any auxiliary tank or
receptacle of any kind or cargo tank, from which gasoline or
special fuel is supplied for the propulsion of the vehicle,
whether or not such tank or receptacle is directly connected to
the fuel supply line of the vehicle.
(11) "Tank wagon" shall mean and include any motor vehicle
or vessel with a cargo tank or cargo tanks ordinarily used for
making deliveries of gasoline or special fuel, or both, for sale or use.
(12) "Taxpayer" shall mean any person liable for the tax
imposed by this article.
(13) "User" shall mean any person who purchases gasoline or
special fuel for use or consumption.
(d)
Tax due. -- The tax on sales of gasoline and special
fuel shall be paid by each taxpayer on or before the twenty-fifth
day of each month, by check, bank draft, certified check or money
order, payable to the tax commissioner for the amount of tax due
for the preceding month, notwithstanding any provision of this
article to the contrary.
(e)
Monthly return. -- On or before the twenty-fifth day of
each month, the taxpayer shall make and file a return for the
preceding month showing such information as the tax commissioner
may require, notwithstanding any provision of this article to the
contrary.
(f)
Compliance. -- To facilitate ease of administration and
compliance by taxpayers, the tax commissioner may require
distributors, importers and other persons liable for the tax
imposed by this article on sales of gasoline or special fuel, to
file a combined return and make a combined payment of the tax due
under this article on sales of gasoline and special fuel, and the
tax due under article fourteen of this chapter, on gasoline and
special fuel. In order to encourage use of a combined return
each month and the making of a single payment each month for both taxes, the due date of the return and tax due under article
fourteen of this chapter is hereby changed from the last day of
each month to the twenty-fifth day of each month, notwithstanding
any provision in article fourteen of this chapter to the
contrary.
(g)
Dedication of tax to highways. -- All tax collected
under the provisions of this section after deducting the amount
of any refunds lawfully paid, shall be deposited in the "road
fund" in the state treasurer's office, and shall be used only for
the purpose of construction, reconstruction, maintenance and
repair of highways, and payment of principal and interest on
state bonds issued for highway purposes:
Provided,
That
notwithstanding any provision to the contrary, any tax collected
on the sale of aircraft fuel shall be deposited in the state
treasurer's office and transferred to the state aeronautical
commission to be used for the purpose of matching federal funds
available for the reconstruction, maintenance and repair of
public airports and airport runways purposes specified in article
two-a, chapter twenty-nine of this code.
(h) Construction. -- This section shall not be construed as
taxing any sale of gasoline or special fuel which this state is
prohibited from taxing under the Constitution of this state or
the Constitution or laws of the United States.
(i) Effective date. -- The provisions of chapter one hundred
seventy-nine of the acts of the Legislature, one thousand nine hundred eighty-three, shall take effect on the first day of
April, one thousand nine hundred eighty-three. The amendments to
this section made by the Legislature in the regular session, one
thousand nine hundred eighty-nine, shall be effective on the
first day of July, one thousand nine hundred eighty-nine.
CHAPTER 29. MISCELLANEOUS BOARDS AND COMMISSIONS.
ARTICLE 2A. STATE AERONAUTICS COMMISSION.
§29-2A-1. Definitions.
As used in the statutes of West Virginia, unless the context
otherwise requires:
(a) "Aeronautics" means the art and science of flight,
including, but not limited to, transportation by aircraft; the
operation, construction, repair or maintenance of aircraft,
aircraft power plants and accessories, including the repair,
packing and maintenance of parachutes; the design, establishment,
construction, extension, operation, improvement, repair or
maintenance of airports or other air navigation facilities.
and
instruction in flying or ground subjects pertaining thereto
(b) "Aeronautics instructor" means any individual who, for
hire or reward, engages in giving instruction, or offers to give
instruction in aeronautics, either in flying or ground subjects,
or both. It does not include any instructor in any public
school, college or university of this state, or any other
institution of higher learning duly accredited and approved for
carrying on collegiate work, while engaged in the performance of his duties as such instructor.
(c) (b) Aircraft" means any contrivance now known, or
hereafter invented, used or designed for navigation of or flight
in the air.
(d) (c) "Airmen" means any individual who engages, as the
person in command, or as pilot, mechanic or member of the crew,
in the navigation of the aircraft while under way, and any
individual who is directly in charge of the inspection,
maintenance, overhauling or repair of aircraft engines,
propellers or appliances, and any individual who serves in the
capacity of aircraft dispatcher, or air-traffic control-tower
operator. It does not include any individual employed outside
the United States, or any individual employed by a manufacturer
of aircraft, aircraft engines, propellers or appliances to
perform duties as inspector or mechanic in connection therewith,
or any individual performing inspection or mechanical duties in
connection with aircraft owned or operated by him.
(e) (d) "Air navigation" or "avigation" means the operation
or navigation of aircraft in the air space over this state, or
upon any airport within this state.
(f) (e) "Air navigation facility" means any facility other
than one owned or controlled by the federal government, used in,
available for use in, or designed for use in aid of air
navigation, including airports, and any structures, mechanisms,
lights, beacons, markers, communications system, or other instrumentalities or devices used or useful as an aid or
constituting an advantage or convenience, to the safe taking off,
navigation, and landing of aircraft, or the safe and efficient
operation or maintenance of an airport, and any combination of
any or all of such facilities.
(g) (f) "Airport" means any area of land or water which is
used, or intended for use, for the landing and take off of
aircraft, and any appurtenant areas which are used, or intended
for use, for airport buildings or other airport facilities or
rights-of-way, together with all airport buildings and facilities
located thereon.
(h) (g) "Airport hazard" means any structure, object of
natural growth, or use of land, which obstructs the air space
required for the flight of aircraft in landing or taking off at
any airport or is otherwise hazardous to such landing or taking
off.
(i) "Air school" means any person who engages in giving, or
offering to give, instruction in aeronautics, either in flying or
ground subjects, or both, for or without hire or reward. It does
not include any public school, college, or university of this
state, or any other institution of higher learning duly
accredited and approved for carrying on collegiate work.
(j) (h) "Commission" means the West Virginia state
aeronautics commission.
(k) (i) "Director" means the director of aeronautics of this state.
(l) (j) "Municipality" means any county, city, town,
village, or other political subdivision of this state.
"Municipal" means pertaining to a municipality as herein defined.
(m) (k) "Operation of aircraft" or "operate aircraft" means
the use, navigation or piloting of aircraft in the airspace over
this state or upon the ground within this state.
(n) (l) "Person" means any individual, firm, copartnership,
corporation, company, association, joint stock association, or
body politic, and includes any trustee, receiver, assignee or
other similar representative thereof.
(o) (m) "State airway" means a route in the navigable
airspace over and above the lands or waters of this state,
designated by the commission as a route suitable for air
navigation.
(p) (n) The singular of any of the above defined terms shall
include the plural and plural the singular.
§29-2A-2. Creation and membership.
There is hereby created an aeronautics commission, to be
known as "The West Virginia State Aeronautics Commission," to
consist of five members to be appointed by the governor, by and
with the advice and consent of the Senate. One of such members
shall be the
state road commissioner secretary of transportation
ex officio, whose term as such member shall continue for the
period that he holds the office of
state road commissioner secretary of transportation. The other four members of the
commission shall be appointed by the governor, each to serve a
term beginning the first day of July, one thousand nine hundred
forty-seven, one to serve for a term of one year, one to serve
for a term of two years, one to serve for a term of three years,
and one to serve for a term of four years. The successors of the
members (other than the
state road commissioner secretary of
transportation) initially appointed as provided herein, shall be
appointed for terms of four years each in the same manner as the
members originally appointed under this article, except that any
person appointed to fill a vacancy occurring prior to the
expiration of the term for which his predecessor was appointed
shall be appointed only for the remainder of such term. Each
member shall serve until the appointment and qualification of his
successor. No more than three members of the commission shall be
members of the same political party. All members of the
commission shall be citizens and residents of this state. The
members of the commission who shall be appointed by the governor
as provided by this section shall be selected with due regard to
their fitness by reason of their aeronautical knowledge and
practical experience in the field of aeronautics. In making such
appointments, the governor shall, so far as may be possible and
practicable, select the several members from different
geographical sections of the state.
No member shall receive any salary for his
or her services, but each shall be reimbursed for actual and necessary expenses
incurred by him in the performance of his duties.
§29-2A-3. Powers and duties of commission.
The commission shall assume, carry on and succeed to all the
duties, rights, powers, obligations and liabilities heretofore
belonging to, exercised by, or assumed by the state board of
aeronautics, pursuant to statutory authority heretofore existing
and as changed or modified by the provisions of this article. The
commission shall have general supervision and control over all
airports used for commercial purposes, all state and municipal
airports
all air schools and over all phases of aeronautics
within this state. It may enter into any contracts necessary to
the execution of the powers granted to it by this article. It is
empowered and directed to encourage, foster, and assist in the
development of aeronautics in this state and to encourage the
establishment of airports and air navigation facilities. It
shall cooperate with and assist the federal government, the
municipalities of this state, and other persons in the
development of aeronautics, and shall act to coordinate the
aeronautical activities of these bodies and persons.
Municipalities are authorized to cooperate with the commission in
the development of aeronautics and aeronautics facilities in this
state. The commission is hereby given the power and authority to
make such rules
and regulations as it may deem necessary and
advisable for the public safety, governing the designing, laying out, locating, building, equipping and operating of all airports
the establishment and operation of all air schools and the
conduct of all other phases of aeronautics.
The commission is
given the power and authority to make different ratings of
airports and to prescribe the proper uses for which the different
classes of ratings are given. The commission is given power and
authority to make rules and regulations governing the personnel
and operation of all air schools, for the purpose of protecting
the health and safety of students therein and insuring, so far as
may be, the public safety through the proper training and
instruction of student aviators and mechanics. It shall adopt
and enforce the provisions of the Federal Air Commerce Act, now
in effect or as hereafter amended, so as to make applicable as
far as possible the provisions of that act to the state of West
Virginia, but the commission shall not make or promulgate any
rules, regulations or orders applicable to persons engaged in
interstate air commerce, in contravention of or inconsistent with
the laws of the United States, or the rules, regulations or
orders of the civil aeronautics board, the civil aeronautics
administration, or other competent agency of the United States:
Provided, however, That nothing in this article shall be
construed to deprive the public service commission of West
Virginia of the power to regulate air transportation for
compensation.
The commission shall keep on file with the secretary of state, and at the principal office of the commission, a copy of
all its rules
and regulations and orders having general effect,
for public inspection. It shall provide for the publication and
general distribution of all its orders, rules
regulations and
procedures having general effect. Copies of any such orders or or
rules
regulations shall be delivered to any person interested,
free of charge, upon request. The publication and distribution
of any such order or rule
regulation as provided herein, shall be
sufficient notice to the public of the provisions, requirements
and effect thereof.
The commission has the authority to invest
any funds it receives with the state board of investments.
§29-2A-4. Organization of commission; meetings; reports;
offices.
The commission shall
adopt a seal, and shall make, and may
from time to time amend,
such rules
and regulations for the
administration of the powers granted to it by this article as are
not inconsistent therewith and as the commission may deem
expedient. The commission shall organize by electing from among
its members a chairman who shall serve as such for a period of
two years. Such chairman shall have the power to sign documents,
execute contracts, and otherwise act for and in the name of the
commission in all matters within the lawful powers of the
commission and duly authorized by a majority of its members.
The commission shall determine the number, date and place of
its regular meetings, but at least one such meeting shall be held annually at the commission's established offices in the city of
Charleston. Whenever the convenience of the public or of
interested persons may be promoted, or delay or expense may be
prevented, the commission may hold meetings, hearings or
proceedings at any other place designated by it.
The commission shall report in writing to the governor on or
before the thirty-first day of August of each year. The report
shall contain a summary of the commission's proceedings during
the preceding fiscal year, a detailed and itemized statement of
all revenue received and all expenditures made by or on behalf of
the commission, such other information as it may deem necessary
or useful, and any additional information which may be requested
by the governor. The fiscal year of the commission shall conform
to the fiscal year of the state.
An office shall be established and maintained by the
commission in the city of Charleston. In addition, the
commission may establish and maintain such other offices within
the state as it may deem necessary and expedient.
§29-2A-5. Director of aeronautics; appointment, qualifications,
compensation, powers and duties; administrative and
other assistants.
A director of aeronautics shall be appointed by the
commission, who shall serve for an indefinite term at the
pleasure of the commission. He shall be appointed with due regard
to his fitness, by aeronautical education and by knowledge of and recent practical experience in aeronautics, for the efficient
dispatch of the powers and duties vested in and imposed upon him
by this article. He shall hold or have held a federal
commercial
pilot's license. He shall
devote his entire time to perform the
duties of his office as required and prescribed by this article,
and
shall may not
be actively engaged or employed in any other
business, vocation or employment, nor shall he have any pecuniary
interest in, or any stock in, or bonds of, any civil aeronautical
enterprise. He shall receive such compensation as the commission
may determine, which said compensation shall, however, conform in
general to the compensation received by persons occupying
positions of similar importance and responsibility with other
agencies of this state. He shall be reimbursed for all traveling
and other expenses incurred by him in the discharge of his
official duties. The director shall be the executive officer of
the commission and under its supervision shall administer the
provisions of this article and the rules
regulations and orders
established thereunder, and all other laws of the state relative
to aeronautics. The director shall attend, but not vote, at all
meetings of the commission. He shall act as secretary of the
commission and shall be in charge of its offices and responsible
to the commission for the preparation of reports and the
collection and dissemination of data and other public information
relating to aeronautics. At the direction of the commission he
shall, together with the chairman of the commission, execute all contracts entered into by the commission which are legally
authorized and for which funds are provided in any appropriations
act. The commission may, by written order filed in its office,
delegate to the director any of the powers or duties vested or
imposed upon it by this article. Such delegated powers and
duties may be exercised by such director in the name of the
commission. The commission may also employ such administrative,
engineering, technical and clerical assistance as may be
required. The director and such other assistants may, under the
supervision of the commission, insofar as is reasonably possible,
make available the engineering and other technical services of
the commission, without charge to any municipality, and with or
without charge to any other person desiring them, in connection
with the construction, maintenance or operation, or proposed
construction, maintenance or operation of any airport. The
commission, the director, and such other assistants as may be
designated by the commission shall see that the state and federal
laws governing aviation and the rules and regulations of the
commission are carried out. They shall have police powers and
may make arrests for the violation of this article, or the rules
and regulations of the commission.
§29-2A-7. Federal aid.
(a) The commission is authorized to cooperate with the
government of the United States, and any agency or department
thereof, in the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation
facilities in this state, and is authorized to accept federal aid
either outright or by way of matching the same, in whole or in
part, as may be required, and when funds for matching are
available to the commission, and to comply with the provisions of
the laws of the United States and any regulations made thereunder
for the expenditure of federal moneys upon such airports and
other air navigation facilities.
(b) The commission is authorized to accept, receive and
receipt for federal moneys and other moneys, either public or
private, for and in behalf of this state, or any municipality
thereof, for the planning, acquisition, construction,
improvement, maintenance, and operation of airports and other air
navigation facilities, whether such work is to be done by the
state or by such municipality, or jointly, aided by grants of aid
from the United States, upon such terms and conditions as are or
may be prescribed by the laws of the United States and any rules
or regulations made thereunder, and it is hereby designated as
the agency of the state, and is authorized to and may act as
agent of any municipality of this state upon the request of such
municipality, in accepting, receiving and receipting for such
moneys in its behalf for airports or other air navigation
facility purposes, and in contracting for the planning,
acquisition, construction, improvement, maintenance or operation
of airports or other air navigation facilities, financed either, in whole or in part, by federal moneys; and any such municipality
is authorized to and may, and the state hereby does designate the
commission as its agent for such purposes and any such
municipality may enter into an agreement with the commission
prescribing the terms and conditions of such agency in accordance
with federal laws, rules and regulations and with this article.
Such moneys as are paid over by the United States government
shall be retained by the state or paid over to said
municipalities under such terms and conditions as may be imposed
by the United States government in making such grants.
(c) All contracts for the planning, acquisition,
construction, improvement, maintenance and operation of airports,
or other air navigation facilities made by the commission, either
as the agent of the state or as the agent of any municipality
therein, shall be made pursuant to the laws of this state
governing the making of like contracts:
Provided, however, That
where the planning, acquisition, construction, improvement,
maintenance and operation of any airport or other air navigation
facility is financed wholly or partially with federal moneys, the
commission, as agent of the state or of any municipality thereof,
may let contracts in the manner prescribed by the federal
authorities, acting under the laws of the United States, and any
rules or regulations made thereunder, notwithstanding any other
state law to the contrary.
(d) All moneys accepted for disbursement by the commission pursuant to this section shall be deposited in the state
treasury, and, unless otherwise prescribed by the authority from
which the money is received, kept in separate funds, designated
according to the purposes for which the moneys were made
available, and held by the state in trust for such purposes. All
such moneys are hereby appropriated for the purposes for which
the same were made available, shall be expended in accordance
with federal laws and regulations and with this article. The
commission is authorized, whether acting for this state or as the
agent of any municipality therein, when requested by the United
States government or any agency or department thereof, or when
requested by the state or municipality for which the money has
been made available, to disburse such moneys for the designated
purposes, but this shall not preclude any other authorized method
of disbursement.
(e) The state or any municipality therein is authorized to
cooperate with the government of the United States, and any
agency or department thereof, in the acquisition, construction,
improvement, maintenance and operation of airports and other air
navigation facilities in this state, and is authorized to accept
federal aid, either by way of outright grant or by matching the
same, in whole or in part, as may be required, and to comply with
the provisions of the laws of the United States and any
regulations made thereunder for the expenditure of federal moneys
upon such airports and other navigation facilities.
(f) No political subdivision of this state, whether acting
alone or jointly with another political subdivision or with the
state, shall submit to the administrator of civil aeronautics of
the United States any project application under the provisions of
section nine-a of the act of Congress approved on the thirteenth
day of May, one thousand nine hundred forty-six, being public law
three hundred seventy-seven, seventy-ninth Congress, known and
hereinafter designated as the "Federal Airport Act," or any
amendment thereof, unless the project and the project application
have been first approved by the commission. No such political
subdivision shall directly accept, receive, receipt for, or
disburse any funds granted by the United States under the Federal
Airport Act, but it shall designate the commission as its agent
in its behalf to accept, receive, receipt for and disburse such
funds. It shall enter into an agreement with the commission
prescribing the terms and conditions of such agency in accordance
with federal laws, rules and regulations and applicable laws of
this state. Such moneys as are paid over by the United States
government shall be retained by the state or paid over to the
municipality under such terms and conditions as may be imposed by
the United States government in making such grant.
§29-2A-11. Operation of aircraft while intoxicated; penalty.
No person shall operate an aircraft in the air over, or on
the ground or water within this state while intoxicated or under
the influence of intoxicating liquor,
drugs or narcotics controlled substances, or with any alcohol concentration in his
or her blood of ten one hundredths of one percent or more by
weight; nor shall the owner of such aircraft, knowingly permit
the same to be so operated by a person who is intoxicated, or
under the influence of
controlled substances, intoxicating
liquor,
drugs or narcotics or has any alcohol concentration in
his or her blood of ten one hundredths of one percent or more by
weight.
A person violating any of the provisions of this section
shall, for the first offense, be guilty of a misdemeanor, and,
upon conviction thereof, shall be punished by a fine of not more
than five hundred dollars or by confinement in jail for not more
than one year, or both. For a second and subsequent offense, he
shall be guilty of a felony, and, upon conviction thereof, shall
be confined in the penitentiary not less than one nor more than
three years. Any person who, while intoxicated, or under the
influence of
a controlled substance or intoxicating liquor
drugs
or narcotics or who has any alcohol concentration in his or her
blood of ten one hundredths of one percent or more by weight,
operates an aircraft, and while so operating the aircraft, does
serious bodily injury to another, shall be guilty of felonious
assault, and upon conviction thereof shall, for the first offense
be punished at the discretion of the court, either by confinement
in the penitentiary for not less than one nor more than five
years or by confinement in jail for not more than one year and by a fine of not more than five hundred dollars. For a second and
subsequent such offense, he shall be guilty of a felony, and,
upon conviction thereof, shall be punished by confinement in the
penitentiary for not less than one nor more than five years.
Any
conviction under this section shall be reported to the
aeronautics commission and the federal aviation administration.
§29-2A-11a. Implied consent to test; administration at
direction of law-enforcement officer; designation
of type of test; definition of law-enforcement
officer.
Any person who operates an aircraft in this state 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 section eleven of this article. The
law-enforcement agency by which such 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 blood test, then the law-enforcement officer
making such 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" or "police 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 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 division of public safety, the sheriff
of the county wherein the arrest is made or any deputy of such
sheriff or any municipal law-enforcement officer of another
municipality within the county wherein the arrest is made may,
upon the request of such arresting law-enforcement officer and in
his or her presence, conduct such secondary test and the results
of such test may be used in evidence to the same extent and in
the same manner as if such test had been conducted by such arresting law-enforcement officer. Only the person actually
administering or conducting such test shall be competent to
testify as to the results and the veracity of such test.
§29-2A-11b. Preliminary analysis of breath to determine
alcoholic content of blood.
When a law-enforcement officer has reason to believe a
person has committed an offense prohibited by section eleven of
this article, the law-enforcement officer may require such person
to submit to a preliminary breath analysis for the purpose of
determining such person's blood alcohol content. Such breath
analysis must be administered as soon as possible after the
law-enforcement officer has a reasonable belief that the person
has been operating an aircraft while under the influence of
alcohol, controlled substances or drugs. Any preliminary breath
analysis required under this section must be administered with a
devise and in a manner approved by the bureau of public health
for that purpose. The results of a preliminary breath analysis
shall be used solely for the purpose of guiding the officer in
deciding whether an arrest should be made. When an operator is
arrested following a preliminary breath analysis, the tests as
hereinafter provided in this article shall be administered in
accordance with the provisions thereof.
§29-2A-11c. How blood test administered; additional test at
option of person tested; use of test results;
certain immunity from liability incident to administering test.
Only a doctor of medicine or osteopathy, or registered
nurse, or trained medical technician at the place of his or her
employment, acting at the request and direction of the
law-enforcement officer, may withdraw blood for the purpose of
determining the alcoholic content thereof. These limitations
shall not apply to the taking of a breath test or a urine
specimen. In withdrawing blood for the purpose of determining
the alcoholic content thereof, only a previously unused and
sterile needle and sterile vessel may be utilized and the
withdrawal shall otherwise be in strict accord with accepted
medical practices. A nonalcoholic antiseptic shall be used for
cleansing the skin prior to venapuncture. The person tested may,
at his or her own expense, have a doctor of medicine or
osteopathy, registered nurse or trained medical technician at the
place of his or her employment, of his or her own choosing,
administer a chemical test in addition to the test administered
at the direction of the law-enforcement officer. Upon the
request of the person who is tested, full information concerning
the test taken at the direction of the law-enforcement officer
shall be made available to him or her. No person who administers
any such test upon the request of a law-enforcement officer as
herein defined, no hospital in or with which such person is
employed or is otherwise associated or in which such test is
administered, and no other person, firm or corporation by whom or with which such person is employed or is in any way associated,
may be in anyway criminally liable for the administration of such
test, or civilly liable in damages to the person tested unless
for gross negligence or willful or wanton injury.
§29-2A-11d. Interpretation and use of chemical test.
Upon trial for the offense of operating an aircraft in this
state while under the influence of alcohol, controlled substances
or drugs, or upon the trial of any civil or criminal action
arising out of acts alleged to have been committed by any person
operating an aircraft while under the influence of alcohol,
controlled substances or drugs, evidence of the amount of alcohol
in the person's blood at the time of the arrest or of the acts
alleged, as shown by a chemical analysis of his or her blood,
breath or urine, is admissible, if the sample or specimen was
taken within two hours from and after the time of arrest or of
the acts alleged, and shall give rise to the following
presumptions or have the following effect:
(a) Evidence that there was, at that time, five hundredths
of one percent or less, by weight, of alcohol in his or her
blood, shall be prima facie evidence that the person was not
under the influence of alcohol;
(b) Evidence that there was, at that time, more than five
hundredths of one percent and less than ten hundredths of one
percent, by weight, of alcohol in the person's blood shall be
relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of
alcohol;
(c) Evidence that there was, at that time, ten hundredths of
one percent or more, by weight, of alcohol in his or her blood,
shall be admitted as prima facie evidence that the person was
under the influence of alcohol.
Percent by weight of alcohol in the blood shall be based
upon milligrams of alcohol per one hundred cubic centimeters of
blood.
A chemical analysis of a person's blood, breath or urine, in
order to give rise to the presumptions or to have the effect
provided for in subdivisions (a), (b) and (c) of this section,
must be performed in accordance with methods and standards
approved by the state bureau of public health. A chemical
analysis of blood or urine to determine the alcoholic content of
blood shall be conducted by a qualified laboratory or by the
state police scientific laboratory of the criminal identification
bureau of the bureau of public safety.
The provisions of this article shall not limit the
introduction in any administrative or judicial proceeding of any
other competent evidence bearing on the question of whether the
person was under the influence of alcohol, controlled substances
or drugs.
§29-2A-11e. Right to demand test.
Any person lawfully arrested for operating an aircraft in this state while under the influence of alcohol, controlled
substances or drugs shall have the right to demand that a sample
or specimen of his or her blood, breath or urine be taken within
two hours from and after the time of arrest, and that a chemical
test thereof be made. The analysis disclosed by such chemical
test shall be made available to such arrested person forthwith
upon demand.
§29-2A-11f. Fee for withdrawing blood sample and making urine
test; payment of fees.
A reasonable fee shall be allowed to the person withdrawing
a blood sample or administering a urine test at the request and
direction of a law-enforcement officer in accordance with the
provisions of this article. If the person whose blood sample was
withdrawn or whose urine was tested was arrested and charged with
a violation of section eleven of this article, the county having
venue of such charge shall pay said fee, and if said person is
subsequently convicted of such charge, such fee shall be taxed as
a part of the costs of the criminal proceeding and shall be paid,
notwithstanding any other provision of this code to the contrary,
into the general fund of said county.
§29-2A-20. Enforcement of aeronautics laws.
It shall be the duty of the commission, its members, the
director, officers and such employees of the commission as may be
designated by it, and every state and municipal officer charged
with the enforcement of state and municipal laws, to enforce and assist in the enforcement of this article and of all rules,
regulations and orders issued pursuant thereto and of all other
laws of this state relating to aeronautics; and in that
connection each of the aforesaid persons is authorized to inspect
and examine at reasonable hours any aircraft, the credentials of
any airman or other person engaged in aeronautics required by the
laws of this state or of the United States to have in his or her
possession credentials evidencing his or her authority or
permission to engage in aeronautics, any premises, and the
buildings and other structures thereon, where airports, air
navigation facilities, air schools or other aeronautical
activities are operated or conducted. In aid of the enforcement
of this article, the rules, regulations and orders issued
pursuant thereto and of all other laws of the state relating to
aeronautics, general police powers are hereby conferred upon the
commission, each of its members, the director, and such other
officers and employees of the commission as may be designated by
it to exercise such powers.
The commission is authorized in the name of the state to
enforce the provisions of this article and the rules, regulations
and orders issued pursuant thereto by injunction or other legal
process in the courts of this state.
§29-2A-22. Commission orders, notices and opportunity for
hearings.
Every order of the commission requiring performance of certain acts or compliance with certain requirements and any
denial or revocation of an approval certificate or license shall
set forth the reasons and shall state the acts to be done or
requirements to be met before approval by the commission will be
given or the approval license or certificate granted or restored
or the order modified or changed. Orders issued by the commission
pursuant to the provisions of this article shall be served upon
the persons affected either by registered mail or in the manner
provided by chapter fifty-six, article two, section one, code of
one thousand nine hundred thirty-one. In every case where notice
and opportunity for hearing are required under the provisions of
this article, the order of the commission shall, on not less than
ten days' notice, specify a time when and place where the person
affected may be heard, or the time within which he may request
hearing, and such order shall become effective upon the
expiration of the time for exercising such opportunity for
hearing unless a hearing is held or requested within the time
provided, in which case the order shall be suspended until the
commission shall affirm, disaffirm or modify such order after
hearing held or default by the person affected.
ARTICLE 2B. WEATHER MODIFICATION.
§29-2B-15. Offenses and penalties.
(a) Any airplane pilot who flies an airplane with numbers
invisible to escape identification under this article shall be
guilty of a misdemeanor, and, upon conviction thereof, have his license revoked for a period of five years.
(b) Any airport owner or operator who knowingly boards cloud
seeding planes to seed clouds or who operates as a cloud seeder
without a license shall be guilty of a misdemeanor, and, upon
conviction thereof, have his airport permit revoked for one year
and be sentenced to pay a fine of not more than five hundred
dollars and for a second or subsequent offense, he shall be
sentenced to pay a fine of not more than one thousand dollars.
(c) Any person knowingly having in his possession without
registering the same with the commission any cloud seeding
equipment shall, on conviction thereof, be sentenced to pay a
fine of fined ten thousand dollars.
(d) Any person who makes any false statement to secure a
license under this article shall, on conviction thereof, have his
license revoked permanently.
(e) Any person who violates any other provision of this
article shall be is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not more than one thousand dollars, or
imprisoned in the county jail not more than one year, or both
fined and imprisoned.
NOTE: The purpose of this bill is to update the Aeronautics
Commission law, provide provisions for implied consent of persons
operating aircraft for testing for alcohol, controlled substances
and drugs, establishing presumptions of testing that are same as
those used for drunk drivers and providing revenue from tax on
sale of aircraft fuel to be used for purposes other than matching
federal aid.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§29-2A-11a, 11b, 11c, 11d, 11e and 11f are new; therefore,
strike-throughs and underscoring have been omitted.
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