ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 141
(By Senator Yoder)
____________
[Originating in the Committee on the Judiciary;
reported February 3, 1995.]
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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 repeal article two-b
of said chapter; 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; and 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, 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; repealing article
relating to weather modification; 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 article two-b of
said chapter 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; and
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, 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 said article 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 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.
(b) Aircraft" means any contrivance now known, or hereafter
invented, used or designed for navigation of or flight in the air.
(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.
(d) "Air navigation" or "navigation" means the operation or
navigation of aircraft in the air space over this state, or upon
any airport within this state.
(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.
(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.
(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.
(h) "Commission" means the West Virginia state aeronautics
commission.
(i) "Director" means the director of aeronautics of this
state.
(j) "Municipality" means any county, city, town, village or
other political subdivision of this state. "Municipal" means
pertaining to a municipality as herein defined.
(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.
(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.
(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.
(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
secretary of transportation ex officio, whose term as such member
shall continue for the period that he holds the office of 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 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 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 as it may deem necessary and advisable for the
public safety, governing the designing, laying out, locating,
building, equipping and operating of all airports and the conduct
of all other phases of aeronautics.
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 orders having general effect, for public inspection. It
shall provide for the publication and general distribution of all
its orders, rules and procedures having general effect. Copies of
any such orders or rules shall be delivered to any person interested, free of charge, upon request. The publication and
distribution of any such order or rule 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 make, and may from time to time amend,
rules 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 pilot's license.
He shall perform the duties of his office as required and
prescribed by this article, and may not 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 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, 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.
§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, controlled substances or with any
alcohol concentration in his or her blood of four 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, or has an alcohol concentration in his or her
blood of four 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 or who has any
alcohol concentration in his or her blood of four 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 said section. 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 device 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 venipuncture. 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 presumption or have the following
effect:
Evidence that there was, at that time, four hundredths of one
percent or more, by weight, of alcohol in his or her blood, shall
be 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 presumption or to have the effect
provided for in 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 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 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
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 section one, article
two, chapter fifty-six of this code. 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.
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