H. B. 2918
(By Delegates Marshall, Yeager,
Stemple, Williams and Ashley)
[Introduced
March 20, 2001
; referred to the
Committee on Agriculture and Natural Resources then the
Judiciary.]
A BILL to amend and reenact section five, article two, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section four,
article seven of said chapter; and to amend article seven of
said chapter by adding thereto two new sections, designated
sections eighteen-c and eighteen-d, all relating to making it
unlawful to hunt or trap while under the influence of alcohol
or other drugs, including implied consent; and implied consent
to test for alcohol for operators of motor boats.
Be it enacted by the Legislature of West Virginia:
That section five, article two, chapter twenty of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; and to amend and reenact section four, article seven; and that article seven of said chapter be amended by
adding thereto two new sections, designated sections eighteen-c and
eighteen-d, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-5. Unlawful methods of hunting and fishing and other
unlawful acts.
Except as authorized by the director, it is unlawful at any
time for any person to:
(1) Shoot at or to shoot any wild bird or animal unless it is
plainly visible to him or her;
(2) Dig out, cut out or smoke out, or in any manner take or
attempt to take, any live wild animal or wild bird out of its den
or place of refuge, except as may be authorized by rules
promulgated by the director or by law;
(3) Make use of, or take advantage of, any artificial light in
hunting, locating, attracting, taking, trapping or killing any wild
bird or wild animal, or to attempt to do so, while having in his or
her possession or subject to his or her control, or for any person
accompanying him or her to have in his or her possession or subject
to his or her control, any firearm, whether cased or uncased, bow,
arrow, or both, or other implement or device suitable for taking,
killing or trapping a wild bird or animal: Provided, That it may not be unlawful to hunt or take raccoon, opossum or skunk by the
use of artificial lights. No person shall be guilty of a violation
of this subdivision merely because he or she looks for, looks at,
attracts or makes motionless a wild bird or wild animal with or by
the use of an artificial light, unless at such time he or she has
in his or her possession a firearm, whether cased or uncased, bow,
arrow, or both, or other implement or device suitable for taking,
killing or trapping a wild bird or wild animal, or unless such
artificial light (other than the head lamps of an automobile or
other land conveyance) is attached to, a part of, or used from
within or upon an automobile or other land conveyance.
Any person violating the provisions of this subdivision shall
be guilty of a misdemeanor and, upon conviction thereof, shall for
each offense be fined not less than one hundred dollars nor more
than five hundred dollars and shall be imprisoned in the county
jail for not less than ten days nor more than one hundred days;
(4) Hunt for, take, kill, wound or shoot at wild animals or
wild birds from an airplane, or other airborne conveyance, an
automobile, or other land conveyance, or from a motor-driven water
conveyance, except as may be authorized by rules promulgated by the
director;
(5) Take any beaver or muskrat by any means other than by
trap;
(6) Catch, capture, take or kill by seine, net, bait, trap or
snare or like device of any kind, any wild turkey, ruffed grouse,
pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the
nest or eggs of any wild bird or have in his or her possession such
nest or eggs unless authorized to do so under rules promulgated by
or under a permit issued by the director;
(9) Except as provided in subdivision (11) below or in section six of
this article, carry an uncased or loaded gun after the hour of five
o'clock antemeridian on Sunday in any woods or on any highway,
railroad right-of-way, public road, field or stream of this state,
except at a regularly used rifle, pistol, skeet, target or
trapshooting ground or range;
(10) Have in his or her possession a loaded firearm or a
firearm from the magazine of which all shells and cartridges have
not been removed, in or on any vehicle or conveyance, or its
attachments, within the state, except as may otherwise be provided
by law or regulation. Except as hereinafter provided, between five
o'clock postmeridian of one day and seven o'clock antemeridian, eastern standard time of the day following, any unloaded firearm,
being lawfully carried in accordance with the foregoing provisions,
shall be so carried only when in a case or taken apart and securely
wrapped. During the period from the first day of July to the
thirtieth day of September, inclusive, of each year, the foregoing
requirements relative to carrying certain unloaded firearms shall
be permissible only from eight-thirty o'clock postmeridian to five
o'clock antemeridian, eastern standard time: Provided, That the
time periods for carrying unloaded and uncased firearms are
extended for one hour after the postmeridian times and one hour
before the antemeridian times established above if a hunter is
preparing to or in the process of transporting or transferring the
firearms to or from a hunting site, campsite, home or other place
of abode;
(11) Hunt, catch, take, kill, trap, injure or pursue with
firearms or other implement by which wildlife may be taken after
the hour of five o'clock antemeridian on Sunday any wild animals or
wild birds: Provided, That traps previously and legally set may be
tended after the hour of five o'clock antemeridian on Sunday, and
the person so doing may carry only a twenty-two caliber firearm for
the purpose of humanely dispatching trapped animals;
(12) Hunt or trap when in possession of a with firearms or
long firearm or bow while: under the influence of intoxicating
liquor; he or she is under the influence of alcohol; or (b) he or
she is under the influence of any controlled substance; or (c) he
or she is under the influence of any other drug; or (d) he or she
is under the combined influence of alcohol and any controlled
substance or any other drug; or (e) he or she has an alcohol
concentration in his or her blood of ten hundredths of one percent
or more, by weight;
Any person who hunts or traps in this state shall be deemed to
have given his or her consent by the mere fact of his or her
hunting or trapping, to a preliminary breath analysis and a
secondary chemical test of either his or her blood, breath or urine
for the purpose of determining the alcoholic content of his or her
blood. These tests shall be administered under the same provisions
as those in section four, article five, chapter seventeen-c and
other related provisions of the West Virginia code just as if the
person had been driving a motor vehicle or a motorboat.
For the purpose of this subsection, the term "law-enforcement
officer" shall have the same meaning as that set forth in section
four, article five, chapter seventeen-c.
Any person refusing to submit to the secondary chemical test
finally designated will be punished by a revocation of his or her
privilege to hunt or trap in this state for a period of one year.
Refusal to submit to the test on a second or subsequent offense
will be punished by a revocation of his or her privilege to hunt in
this state for a period up to five years;
(13) Hunt, catch, take, kill, injure or pursue a wild animal
or bird with the use of a ferret;
(14) Buy raw furs, pelts or skins of fur-bearing animals
unless licensed to do so;
(15) Catch, take, kill or attempt to catch, take or kill any
fish at any time by any means other than by rod, line and hooks
with natural or artificial lures unless otherwise authorized by law
or rules issued by the director: Provided, That snaring of any
species of suckers, carp, fallfish and creek chubs shall at all
times be lawful;
(16) Employ or hire, or induce or persuade, by the use of
money or other things of value, or by any means, any person to
hunt, take, catch or kill any wild animal or wild bird except those
species on which there is no closed season, or to fish for, catch,
take or kill any fish, amphibian or aquatic life which is protected by the provisions of this chapter or rules of the director, or the
sale of which is prohibited;
(17) Hunt, catch, take, kill, capture, pursue, transport,
possess or use any migratory game or nongame birds included in the
terms of conventions between the United States and Great Britain
and between the United States and United Mexican States for the
protection of migratory birds and wild mammals concluded,
respectively, the sixteenth day of August, one thousand nine
hundred sixteen, and the seventh day of February, one thousand nine
hundred thirty-six, except during the time and in the manner and
numbers prescribed by the Federal Migratory Bird Treaty Act and
regulations made thereunder;
(18) Kill, take, catch or have in his or her possession,
living or dead, any wild bird, other than a game bird; or expose
for sale, or transport within or without the state any such bird,
except as aforesaid. No part of the plumage, skin or body of any
protected bird shall be sold or had in possession for sale, except
mounted or stuffed plumage, skin, bodies or heads of such birds
legally taken and stuffed or mounted, irrespective of whether such
bird was captured within or without this state, except the English
or European sparrow (Passer domesticus), starling (Sturnus vulgaris), crow (Corvus brachyrhynchos) and cowbird (Molothrus
ater), which may not be protected and the killing thereof at any
time is lawful;
(19) Use dynamite or any like explosive or poisonous mixture
placed in any waters of the state for the purpose of killing
or taking fish. Any person violating the provisions of this
subdivision shall be guilty of a felony and, upon conviction
thereof, shall be fined not more than five hundred dollars or
imprisoned for not less than six months nor more than three years,
or both fined and imprisoned;
(20) Have a bow and gun, or have a gun and any arrow or
arrows, in the fields or woods at the same time;
(21) Have a crossbow in the woods or fields or use a crossbow
to hunt for, take or attempt to take any wildlife;
(22) Take or attempt to take turkey, bear, elk or deer with
any arrow unless the same is equipped with a point having at least
two sharp cutting edges measuring in excess of three fourths of an
inch wide;
(23) Take or attempt to take any wildlife with an arrow having
an explosive head or shaft, a poisoned arrow or an arrow which
would affect wildlife by any chemical action;
(24) Shoot an arrow across any public highway or from
aircraft, motor-driven watercraft, motor vehicle or other land
conveyance;
(25) Permit any dog owned by him or her or under his or her
control to chase, pursue or follow upon the track of any wild
animal or wild bird, either day or night, between the first day of
May and the fifteenth day of August next following: Provided, That
dogs may be trained on wild animals and wild birds, except deer and
wild turkeys, and field trials may be held or conducted on the
grounds or lands of the owner or by his or her bona fide tenant or
tenants or upon the grounds or lands of another person with his or
her written permission or on public lands, at any time: Provided,
however, That nonresidents may not train dogs in this state at any
time except during the legal small game hunting season: Provided
further, That the person training said dogs does not have firearms
or other implements in his or her possession during the closed
season on such wild animals and wild birds, whereby wild animals or
wild birds could be taken or killed;
(26) Conduct or participate in a field trial,
shoot-to-retrieve field trial, water race or wild hunt hereafter
referred to as trial: Provided, That any person, group of persons, club or organization may hold such trial at any time of the year
upon obtaining such permit as is provided for in section fifty-six
of this article. The person responsible for obtaining said permit
shall prepare and keep an accurate record of the names and
addresses of all persons participating in said trial, and make same
readily available for inspection by any conservation officer upon
request; and
(27) Except as provided in section four of this article, hunt,
catch, take, kill or attempt to hunt, catch, take or kill any wild
animal, wild bird or wild fowl except during the open season
established by rule of the director as authorized by subdivision
(6), section seven, article one of this chapter.
ARTICLE 7. LAW-ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-4. Powers and duties of conservation officers.
Conservation officers and all other persons authorized to
enforce the provisions of this chapter shall be under the
supervision and direction of the director in the performance of
their duties as herein provided. The authority, powers and duties
of the conservation officers shall be statewide and they shall have
authority to:
(1) Arrest on sight, without warrant or other court process,
any person or persons committing a criminal offense in violation of any of the laws of this state, in the presence of such officer, but
no such arrest shall be made where any form of administrative
procedure is prescribed by this chapter for the enforcement of any
of the particular provisions contained herein;
(2) Carry such arms and weapons as may be prescribed by the
director in the course and performance of their duties, but no
license or other authorization shall be required of such officers
for this privilege;
(3) Search and examine, in the manner provided by law, any
boat, vehicle, automobile, conveyance, express or railroad car,
fish box, fish bucket or creel, game bag or game coat or any other
place in which hunting and fishing paraphernalia, wild animals,
wild birds, fish, amphibians or other forms of aquatic life could
be concealed, packed or conveyed whenever they have reason to
believe that they would thereby secure or discover evidence of the
violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any
process of law issued under the authority of this chapter or any
law relating to wildlife, forests and all other natural resources,
by a magistrate or any court having jurisdiction thereof, in the
same manner, with the same authority, and with the same legal effect, as any sheriff can serve or execute such warrant, notice or
process;
(5) Require the operator of any motor vehicle or other
conveyance on or about the public highways or roadways or in or
near the fields and streams of this state, to stop for the purpose
of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing
any warrants, notices or processes, and they shall have the same
rights and powers as sheriffs have in their respective counties in
so doing;
(7) Enter private lands or waters within the state while
engaged in the performance of their official duties hereunder;
(8) Arrest on sight, without warrant or other court process,
subject to the limitations set forth in subdivision (1) of this
section, any person or persons committing a criminal offense in
violation of any law of this state in the presence of any such
officer on any state-owned lands and waters and lands and waters
under lease by the division of natural resources and all national
forest lands, waters and parks, and U. S. Corps of Army Engineers'
properties within the boundaries of the state of West Virginia and,
in addition to any authority conferred in the other subdivisions of this section, execute all warrants of arrest on such state and
national lands, waters and parks and U. S. Corps of Army Engineers'
properties, consistent with the provisions of article one, chapter
sixty-two of this code;
(9) Arrest any person who enters upon the land or premises of
another without written permission from the owner of the land or
premises in order to cut, damage or carry away or cause to be cut,
damaged or carried away any timber, trees, logs, posts, fruit,
nuts, growing plants, or products of any growing plant. Any person
convicted of the foregoing shall be liable to the owner in the
amount of three times the value of the timber, trees, logs, posts,
fruit, nuts, growing plants or products of any growing plant, which
shall be in addition to and notwithstanding any other penalties by
law provided by section thirteen, article three, chapter sixty of
this code;
(10) Where a conservation officer or other law enforcement
officer knows or has reason to believe that a person has, on any
state-owned lands and waters and lands and waters under lease or
managed by the division of natural resources and all national
forest lands, waters and parks national parks properties and U. S.
Army Corps of Engineers' properties within the boundaries of this state, violated any law of this state or the rules promulgated
thereunder, he or she may make a complaint in writing before any
court or officer having jurisdiction, procure a warrant, execute
the same and bring the person before the tribunal having
jurisdiction, and any such action by a conservation officer or
other law-enforcement officer shall have the same force and effect
as if made by a sheriff;
(11) Stop and board any vessel subject to this chapter for
the purpose of conducting safety checks and make arrests for any
violations of the West Virginia Code or rules promulgated
thereunder detected during such safety check;
(12) Serve and execute warrants for the arrest of any person
and warrants for the search of any premises, buildings, properties
or conveyances issued by a properly constituted authority, in
conjunction with the authority granted in subsections (1), (3),
(4), (8), (9), (10), (11) and (12) of this article and may exercise
all the powers conferred by law upon a sheriff.
(10) (13) Do all things necessary to carry into effect the
provisions of this chapter.
Part II. Motorboating.
§20-7-18c. 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 a motorboat or vessel in this state
shall be considered to have given his or her consent by the
operation thereof, subject to the provisions of this article, 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 five of this article whenever a law-enforcement officer has
reasonable cause to believe a person to have committed an offense
prohibited by section eighteen-b 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
eighteen-b 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 the blood test, then the law-enforcement officer making the arrest shall designate in lieu
thereof, either a breath or urine test to be administered and
notwithstanding the provisions of section seven, chapter
seventeen-c of the West Virginia code such refusal to submit to a
blood test only may not result in the revocation of the arrested
person's license to operate a motor vehicle in this state. Any
person to whom a preliminary breath test is administered who is
then arrested shall be given a written statement advising him or
her that his or her refusal to submit to the secondary chemical
test finally designated as provided in this section, will result in
the revocation of his privilege to operate a motorboat or vessel in
this state for a period of at least one year and up to life.
For the purpose of this article, the term "law-enforcement
officer" or "police officer" means and is limited to: (1) Any
member of the West Virginia state police; (2) any sheriff and any
deputy sheriff of any county; (3) any member of a police department
in any municipality as defined in section two, article one, chapter
eight of this code; (4) any conservation officer of the division of
natural resources; and (5) any special police officer appointed by
the governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the course of instruction at a law-enforcement training academy as
provided for under the provisions of section nine, article
twenty-nine, chapter thirty of this code. Any law-enforcement
officer who has been properly trained in the administration of any
secondary chemical test which a law-enforcement officer may conduct
under this article including, but not limited to, certification by
the division of health in the operation of any equipment required
for the collection and analysis of a breath sample, may conduct the
test at any location in the county wherein the arrest is made that
the equipment and the facilities may be found. However, when the
arresting officer lacks training, then any other law-enforcement
officer who has received training in the administration of the
secondary chemical test to be administered may, upon the request of
the arresting law-enforcement officer and in his or her presence,
conduct a secondary test and the results of the test may be used in
evidence to the same extent and in the same manner as if the test
had been conducted by the arresting law-enforcement officer. Only
the person actually administering or conducting the test shall be
competent to testify as to the results and the veracity of the
test.
§20-7-18d. Implied consent to tests; administration at direction of law-enforcement officers; designation of type of
test; definition of law-enforcement officer.
Any person who operates a motorboat or vessel in this state
shall be considered 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.
These tests shall be administered under the same provisions as
those in article five, chapter seventeen-c and other related
articles of the West Virginia code just as if the person had been
driving a motor vehicle.
For the purpose of this article, the term "law-enforcement"
shall have the same meaning as that outlined in article five.
NOTE: The purpose of this bill is to create penalties for
hunting and while under the influence of alcohol or other drugs and
to subject those persons operating a motor boat and suspected of
doing so under the influence, to testing for alcohol.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§§20-7-18c and 18d are new; therefore, strike-throughs and
underscoring have been omitted.
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