Senate Bill No. 277
(By Senators McKenzie and Bowman)
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[Introduced January 26, 2004; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §17C-5-4 and §17C-5-7 of the code of
West Virginia, 1931, as amended, all relating to providing
that law-enforcement officers may seek a warrant to draw blood
from those arrested for driving under the influence to
determine blood alcohol content when the arrested refuses to
submit to a secondary chemical test.
Be it enacted by the Legislature of West Virginia:
That §17C-5-4 and §17C-5-7
of the code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied consent to test; administration at direction of
law-enforcement officer; designation of type of test;
definition of law-enforcement officer.
(a) Any person who drives a motor vehicle in this state is
deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary
chemical test of either his or her blood, breath or urine for the
purposes of determining the alcoholic content of his or her blood.
(b) A preliminary breath analysis may be administered in
accordance with the provisions of section five of this article
whenever a law-enforcement officer has reasonable cause to believe
a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which
has the same elements as an offense described in section two of
this article.
(c) A secondary test of blood, breath or urine is incidental
to a lawful arrest and is to be administered at the direction of
the arresting law-enforcement officer having reasonable grounds to
believe the person has committed an offense prohibited by section
two of this article or by an ordinance of a municipality of this
state which has the same elements as an offense described in
section two of this article.
(d) The law-enforcement agency that employs the
law-enforcement officer shall designate which type of secondary
test is to be administered: Provided, That if the test designated
is a blood test and the person arrested refuses to submit to the
blood test, then the law-enforcement officer making the arrest
shall designate either a breath or urine test to be administered.
Notwithstanding the provisions of section seven of this article, the refusal to submit to a blood test only may not result in the
revocation of the arrested person's license to operate a motor
vehicle in this state. Provided, however, That the law enforcement
officer making the arrest may seek the issuance of a warrant to
extract blood from the person arrested for the purpose of blood
alcohol content analysis; and a court of competent jurisdiction is
authorized to issue a warrant for the extraction of blood if the
person arrested refuses to submit to the designated secondary
chemical test.
(e) Any person to whom a preliminary breath test is
administered who is then arrested shall be given a written
statement advising him or her that his or her refusal to submit to
the secondary chemical test pursuant to subsection (d) of this
section, will result in the revocation of his or her license to
operate a motor vehicle in this state for a period of at least one
year and up to life.
(f) Any law-enforcement officer who has been properly trained
in the administration of any secondary chemical test authorized by
this article, including, but not limited to, certification by the
division of health in the operation of any equipment required for
the collection and analysis of a breath sample, may conduct the
test at any location in the county wherein the arrest is made:
Provided, That the law-enforcement officer may conduct the test at
the nearest available properly functioning secondary chemical testing device located outside the county in which the arrest was
made, if (i) there is no properly functioning secondary chemical
testing device located within the county the arrest was made or
(ii) there is no magistrate available within the county the arrest
was made for the arraignment of the person arrested. A
law-enforcement officer who is directing that a secondary chemical
test be conducted has the authority to transport the person
arrested to where the secondary chemical testing device is located.
(g) If the arresting officer lacks proper training in the
administration of a secondary chemical test, then any other
law-enforcement officer who has received training in the
administration of the secondary chemical test to be administered
may, upon the request of the arresting law-enforcement officer and
in his or her presence, conduct the secondary test. The results of
a test conducted pursuant to this subsection may be used in
evidence to the same extent and in the same manner as if the test
had been conducted by the arresting law-enforcement officer.
(h) Only the person actually administering or conducting a
test conducted pursuant to this article is competent to testify as
to the results and the veracity of the test.
(i) For the purpose of this article, the term "law-enforcement
officer" or "police officer" means: (1) Any member of the West
Virginia state police; (2) any sheriff and any deputy sheriff of
any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight
of this code; (4) any conservation officer of the division of
natural resources; and (5) any special police officer appointed by
the governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the
course of instruction at a law-enforcement training academy as
provided for under the provisions of section nine, article
twenty-nine, chapter thirty of this code.
(j) A law-enforcement officer who has reasonable cause to
believe that person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to
the operation of a motorboat, jet ski or other motorized vessel,
shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and the
secondary chemical test of the accused person's blood, breath or
urine for the purpose of determining alcohol content of his or her
blood.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given: Provided, That prior to such refusal,
the person is given a written statement advising him that his refusal to submit to the secondary test finally designated will
result in the revocation of his license to operate a motor vehicle
in this state for a period of at least one year and up to life. If
a person initially refuses to submit to the designated secondary
chemical test after being informed in writing of the consequences
of such refusal, he shall be informed orally and in writing that
after fifteen minutes said refusal shall be deemed to be final and
the arresting officer shall after said period of time expires have
no further duty to provide the person with an opportunity to take
the secondary test. The officer shall within forty-eight hours of
such refusal, sign and submit to the commissioner of motor vehicles
a written statement of the officer that (1) he had reasonable
grounds to believe such person had been driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs, (2) such person was lawfully placed under
arrest for an offense relating to driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs, (3) such person refused to submit to the secondary
chemical test finally designated in the manner provided in section
four of this article, and (4) such person was given a written
statement advising him that his license to operate a motor vehicle
in this state would be revoked for a period of at least one year
and up to life if he refused to submit to the secondary test
finally designated in the manner provided in section four of this article. The signing of the statement required to be signed by
this section shall constitute an oath or affirmation by the person
signing such statement that the statements contained therein are
true and that any copy filed is a true copy. Such statement shall
contain upon its face a warning to the officer signing that to
willfully sign a statement containing false information concerning
any matter or thing, material, or not material, is false swearing
and is a misdemeanor. Upon receiving the statement the
commissioner shall make and enter an order revoking such person's
license to operate a motor vehicle in this state for the period
prescribed by this section.
Provided, however, That the law
enforcement officer making the arrest may seek the issuance of a
warrant to extract blood from the person arrested for the purpose
of blood alcohol content analysis; and a court of competent
jurisdiction is authorized to issue a warrant for the extraction of
blood if the person arrested refuses to submit to the designated
secondary chemical test.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of one year. If the commissioner has previously
revoked the person's license under the provisions of this section,
the commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking such person's license to operate a motor vehicle in this state for a
period of ten years: Provided, That the license may be reissued in
five years in accordance with the provisions of section three,
article five-a of this chapter. If the commissioner has previously
revoked the person's license more than once under the provisions of
this section, the commissioner shall, for the refusal to submit to
the designated secondary chemical test, make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of life: Provided, That the license may be
reissued in ten years in accordance with the provisions of section
three, article five-a of this chapter. A copy of each such order
shall be forwarded to such person by registered or certified mail,
return receipt requested, and shall contain the reasons for the
revocation and shall specify the revocation period imposed pursuant
to this section. No such revocation shall become effective until
ten days after receipt of the copy of such order. Any person who
is unconscious or who is otherwise in a condition rendering him
incapable of refusal, shall be deemed not to have withdrawn his
consent for a test of his blood, breath or urine as provided in
section four of this article and the test may be administered
although such person is not informed that his failure to submit to
the test will result in the revocation of his license to operate a
motor vehicle in this state for the period provided for in this
section.
A revocation hereunder shall run concurrently with the period
of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which
gave rise to the arrest for driving a motor vehicle while under the
influence of alcohol, controlled substances or drugs and the
subsequent refusal to undergo the test finally designated in
accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two of this
article, for conduct which occurred on or after June tenth, one
thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter, for conduct which occurred on or
after June tenth, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
NOTE: The purpose of this bill is to provide for law
enforcement officers to seek a warrant to draw blood from a person
arrested for DUI when the person refuses to submit to a secondary
chemical test.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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