Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                Introduced House Bill 3302
  By Delegates Westfall, Burkhammer and Pinson [Introduced February 06, 2023; Referred to the Committee on the Judiciary]
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  A BILL to amend and reenact §17C-5-2 of the Code of West Virginia, 1931, as amended, and to
            amend and reenact §61-2-30 of said code; all relating to recognizing an embryo or fetus as
            a distinct unborn victim for the offense of DUI causing death.
     Be it enacted by the Legislature of West Virginia:
     CHAPTER 17C. TRAFFIC REGULATIONS AND RULES OF THE ROAD.
     ARTICLE                   5.            SERIOUS                  TRAFFIC                 OFFENSES.
     §17C-5-2. Driving under influence of alcohol, controlled substances, or drugs; penalties.
            (a) Definitions. —
            (1) "Impaired state" means a person:
            (A) Is under the influence of alcohol;
            (B) Is under the influence of any controlled substance;
            (C) Is under the influence of any other drug or inhalant substance;
            (D) Is under the combined influence of alcohol and any controlled substance or any other
  drug; or
            (E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or
  more, by weight.
           (2) "Bodily injury" means injury that causes substantial physical pain, illness, or any
 impairment of physical condition.
           (3) "Controlled substance" has the meaning provided in §60A-1-101 of this code.
           (4) "Serious bodily injury" means bodily injury that creates a substantial risk of death, that
 causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or
 impairment of the function of any bodily organ.
           (5) "Test and lock program" means the Motor Vehicle Test and Lock Program, established
 in §17C-5A-3a and administered by the Division of Motor Vehicles.
           (b) Any person who drives a vehicle in this state while he or she is in an impaired state, and
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 such impaired state proximately causes the death of any person, including an embryo or fetus as
 defined in §61-2-30 of this code, is guilty of a felony and, upon conviction thereof, shall be
 imprisoned in a state correctional facility for not less than three nor more than 15 years and shall
 be fined not less than $1,000 nor more than $3,000, and shall have his or her license to operate a
 motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for a period of 10
 years or for a period of time conditioned on participation in the test and lock program in
 accordance with §17C-5A-3a of this code: Provided, That any death charged under this
 subsection must occur within one year of the offense: Provided, however, That if the person has
 previously been convicted under this section, the person shall have his or her license to operate a
 motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for life or for a period
 of time conditioned on participation in the test and lock program in accordance with §17C-5A-3a of
 this code.
           (c) Any person who drives a vehicle in this state while he or she is in an impaired state, and
 such impaired state proximately causes serious bodily injury to any person other than himself or
 herself, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional
 facility for not less than two nor more than 10 years and shall be fined not less than $1,000 nor
 more than $3,000, and shall have his or her license to operate a motor vehicle revoked by the
 Commissioner of the Division of Motor Vehicles for a period of five years or for a period of time
 conditioned on participation in the test and lock program in accordance with §17C-5A-3a of this
 code: Provided, That if the person has previously been convicted under this section, the person
 shall have his or her license to operate a motor vehicle revoked by the Commissioner of the
 Division of Motor Vehicles for life or for a period of time conditioned on participation in the test and
 lock program in accordance with §17C-5A-3a of this code.
           (d) Any person who drives a vehicle in this state while he or she is in an impaired state, and
 such impaired state proximately causes a bodily injury to any person other than himself or herself,
 is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than
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 one day nor more than one year and shall be fined not less than $200 nor more than $1,000, and
 shall have his or her license to operate a motor vehicle revoked by the Commissioner of the
 Division of Motor Vehicles for a period of two years or for a period of time conditioned on
 participation in the test and lock program in accordance with §17C-5A-3a of this code: Provided,
 That if the person has previously been convicted under this section, the person shall have his or
 her license to operate a motor vehicle revoked by the Commissioner of the Division of Motor
 Vehicles for life or for a period of time conditioned on participation in the test and lock program in
 accordance with §17C-5A-3a of this code. Any jail term imposed pursuant to this subsection shall
 include actual confinement of not less than 24 hours: Provided, however, That a person sentenced
 pursuant to this subsection shall receive credit for any period of actual confinement he or she
 served upon arrest for the subject offense.
           (e) Any person who drives a vehicle on any public highway or private road in this state: (1)
 while he or she is in an impaired state; or (2) while he or she is in an impaired state but has an
 alcohol concentration in his or her blood of less than fifteen hundredths of one percent, by weight,
 is guilty of a misdemeanor and, upon conviction thereof, may be confined in jail for up to six
 months and shall be fined not less than $100 nor more than $500, and shall have his or her license
 to operate a motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for a
 period of six months or for a period of time conditioned on participation in the test and lock program
 in accordance with §17C-5A-3a of this code: Provided, That a person sentenced pursuant to this
 subsection shall receive credit for any period of actual confinement he or she served upon arrest
 for the subject offense.
           (f) Any person who drives a vehicle on any public highway or private road in this state while
 he or she has an alcohol concentration in his or her blood of fifteen hundredths of one percent or
 more, by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail
 for not less than two days nor more than six months, which jail term is to include actual
 confinement of not less than 24 hours, and shall be fined not less than $200 nor more than $1,000,
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 and shall have his or her license to operate a motor vehicle revoked by the Commissioner of the
 Division of Motor Vehicles for a period of one year or for a period of time conditioned on
 participation in the test and lock program in accordance with §17C-5A-3a of this code. A person
 sentenced pursuant to this subsection shall receive credit for any period of actual confinement he
 or she served upon arrest for the subject offense.
           (g) Any person who, being a habitual user of narcotic drugs or amphetamines, or any
 derivative thereof, drives a vehicle on any public highway or private road in this state is guilty of a
 misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor
 more than six months, which jail term is to include actual confinement of not less than 24 hours,
 and shall be fined not less than $100 nor more than $500, and shall have his or her license to
 operate a motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for a
 period of six months. A person sentenced pursuant to this subsection shall receive credit for any
 period of actual confinement he or she served upon arrest for the subject offense.
           (h) Any person who knowingly permits his or her vehicle to be driven on any public highway
 or private road in this state by any other person who is in an impaired state is guilty of a
 misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months
 and shall be fined not less than $100 nor more than $500, and shall have his or her license to
 operate a motor vehicle revoked by the Commissioner of the Division of Motor Vehicles for a
 period of six months or for a period of time conditioned on participation in the test and lock program
 in accordance with §17C-5A-3a of this code.
           (i) Any person who knowingly permits his or her vehicle to be driven on any public highway
 or private road in this state by any other person who is a habitual user of narcotic drugs or
 amphetamines, or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof,
 shall be confined in jail for not more than six months and shall be fined not less than $100 nor more
 than $500, and shall have his or her license to operate a motor vehicle revoked by the
 Commissioner of the Division of Motor Vehicles for a period of six months.
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            (j) (1) Any person under the age of 21 years who drives a vehicle on any public highway or
  private road in this state while he or she has an alcohol concentration in his or her blood of two
  hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by
 weight, for a first offense under this subsection is guilty of a misdemeanor and, upon conviction
 thereof, shall be fined not less than $25 nor more than $100, and have his or her license to operate
 a motor vehicle suspended by the Commissioner of the Division of Motor Vehicles for a period of
 60 days or for a period of time conditioned on participation in the test and lock program in
 accordance with §17C-5A-3a of this code. For a second or subsequent offense under this
 subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined
 in jail for 24 hours and shall be fined not less than $100 nor more than $500, and shall have his or
 her license to operate a motor vehicle revoked by the Commissioner of the Division of Motor
 Vehicles for a period of one year or until the person’s 21st birthday, whichever period is longer, or
 for a period of time conditioned on participation in the test and lock program in accordance with
 §17C-5A-3a of this code. A person who is charged with a first offense under the provisions of this
 subsection may move for a continuance of the proceedings, from time to time, to allow the person
 to participate in the test and lock program as provided in §17C-5A-3a of this code. Upon
 successful completion of the program, the court shall dismiss the charge against the person and
 expunge the person’s record as it relates to the alleged offense. In the event the person fails to
 successfully complete the program, the court shall proceed to an adjudication of the alleged
 offense. A motion for a continuance under this subsection may not be construed as an admission
 or be used as evidence.
           (2) (A) Notwithstanding subdivision (1) of this subsection, a person shall have his or her
 license to operate a motor vehicle suspended or revoked for a minimum period of one year or for a
 period of time conditioned on participation in the test and lock program in accordance with
 §17C-5A-3a of this code, if the person:
           (i) Has previously been convicted under this subsection and is subsequently convicted of
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 an offense under another subsection of this section; or
           (ii) Is convicted under this subsection and has previously been convicted of an offense
 under another subsection of this section.
           (B) Nothing in this subdivision permits a shorter period of license revocation, license
 suspension, or participation in the test and lock program than is mandatory for the specific offense
 for which the person is convicted.
           (3) A person arrested and charged with an offense under the provisions of this subsection
 or subsection (b), (c), (d), (e), (f), (g), (h), or (i) of this section may not also be charged with an
 offense under this subsection arising out of the same transaction or occurrence.
           (k) Any person who drives a vehicle on any public highway or private road in this state
 while he or she is in an impaired state and has within the vehicle one or more other persons who
 are unemancipated minors who have not yet reached their 16th birthday is guilty of a
 misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor
 more than 12 months, and shall be fined not less than $200 nor more than $1,000, and shall have
 his or her license to operate a motor vehicle revoked by the Commissioner of the Division of Motor
 Vehicles for a period of one year or for a period of time conditioned on participation in the test and
 lock program in accordance with §17C-5A-3a of this code: Provided, That such jail term shall
 include actual confinement of not less than 48 hours: Provided, however, That a person sentenced
 pursuant to this subsection shall receive credit for any period of actual confinement he or she
 served upon arrest for the subject offense.
           (l) A person convicted of an offense under this section, who has previously been convicted
 of any offense under this section on one occasion, is guilty of a misdemeanor and, upon conviction
 thereof, shall be confined in jail for not less than six months nor more than one year, may be fined
 not less than $1,000 nor more than $3,000, and shall have his or her license to operate a motor
 vehicle revoked by the Commissioner of the Division of Motor Vehicles for 10 years or for a period
 of time conditioned on participation in the test and lock program in accordance with §17C-5A-3a of
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 this code: Provided, That if the second conviction is for an offense as described in subsections (b),
 (c), or (d) of this section and the subsection creating the offense requires a period of incarceration,
 period of license revocation, or fine that is greater than what is required for a conviction under this
 subsection, the greater period of incarceration, period of revocation, or fine shall be imposed:
 Provided, however, That this section does not apply to a second conviction that is subject to a
 period of license revocation under subsection (j) of this section.
           (m) A person convicted of an offense under this section, who has previously been
 convicted of any offense under this section on two or more occasions, is guilty of a felony and,
 upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor
 more than five years, shall have his or her license to operate a motor vehicle revoked by the
 Commissioner of the Division of Motor Vehicles for life or for a period of time conditioned on
 participation in the test and lock program in accordance with §17C-5A-3a of this code, and the
 court may, in its discretion, impose a fine of not less than $3,000 nor more than $5,000: Provided,
 That if the third or subsequent conviction is for an offense as described in subsections (b), (c), or
 (d) of this section and the subsection creating the offense requires a period of incarceration, period
 of license revocation, or fine that is greater than what is required for a conviction under this
 subsection, the greater period of incarceration, period of revocation, and fine shall be imposed:
 Provided, however, That this section does not apply to a third or subsequent conviction that is
 subject to a period of license revocation under subsection (j) of this section.
           (n) For purposes of subsections (l) and (m) of this section relating to second, third, and
 subsequent offenses, the following events shall be regarded as offenses and convictions under
 this section:
           (1) Any conviction under the provisions of subsection (b), (c), (d), (e), (f), (g), (h), or (i) of
 this section, or under a prior enactment of this section, for an offense which occurred within the
 10-year period immediately preceding the date of arrest in the current proceeding;
           (2) Any conviction under a municipal ordinance of this state or any other state or a statute
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 of the United States or of any other state of an offense which has the same elements as an offense
 described in subsection (b), (c), (d), (e), (f), (g), (h), or (i) of this section, which offense occurred
 within the 10-year period immediately preceding the date of arrest in the current proceeding; and
           (3) Any period of conditional probation imposed pursuant to §17C-5-2b of this code for
 violation of subsection (e) of this section, which violation occurred within the 10-year period
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