(a) Definitions.
(1) "Impaired State" means a person:
(A) Is under the influence of alcohol;
(B) Is under the influence of a controlled substance;
(C) Is under the influence of any other drug;
(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 bodily injury that causes substantial physical pain, illness or any impairment of physical condition.
(3) "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.
(b) Any person who drives a vehicle in this City while he or she is in an impaired state and such impaired state, proximately causes the death of any person 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 fifteen years and shall be fined not less than $1,000.00 nor more than $3,000.00: Provided, that any death charged under this subsection must occur within one year of the offense.
(c) Any person who drives a vehicle in this City 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 ten years and shall be fined not less than $1,000.00 nor more than $3,000.00.
(d) Any person who drives a vehicle in this City while he or she is in an impaired state and such impaired state proximately causes 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 one day more than one year and shall be fined not less than $200.00 nor more than $1,000; provided, that such jail term shall include actual confinement of not less that twenty-four 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 in this City:
(i) While he or she is in an impaired State; or
(ii) 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, except as provided in Section 333.01B of this Code shall be confined in jail for up to thirty days, and shall be fined not less than $100.00 nor more than $500.00. Provided, that a person sentenced pursuant to this subdivision 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 in this City 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 that two days nor more than thirty days, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than $200.00 nor more than $500.00. A person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(g) Any person who, being an habitual user of narcotic drugs or amphetamines or any derivative thereof, drives a vehicle in this City, shall be guilty of a misdemeanor, and upon conviction thereof, shall be confined in jail for not less than one day nor more than thirty days, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100.00 nor more than $500.00. A person sentenced pursuant to this subdivision 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 in this City 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 thirty days and shall be fined not less than $100.00 nor more than $500.00.
(i) Any person who knowingly permits his or her vehicle to be driven in this City by any other person who is an 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 thirty days and shall be fined not less than $100.00 nor more than $500.00.
(j) Any person under the age of twenty-one years who drives a vehicle in this City 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 $25.00 nor more than $100.00. 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 twenty-four hours, and shall be fined not less than $100.00 nor more than $500.00. 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 Motor Vehicle Alcohol Test and Lock Program as provided for in West Virginia Code §17C-5A-3a. Upon successful completion of the program, the municipal court shall dismiss the charge against the person and upon entry of the appropriate order by the Circuit Court of Marion County, West Virginia, shall expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the municipal court shall proceed to adjudicate the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the provisions of this subsection or subsection (b), (c), (d), (e), (f) or (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 in this City 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 reached their sixteenth birthday, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than thirty days, and shall be fined not less than $200.00 nor more than $500.00; Provided, that such jail term shall include actual confinement of not less than forty-eight hours : Provided, however, that a person sentenced pursuant to this subdivision shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(l) A person violating any provision of subsection (d), (e), (f), (g), (h) or (j) hereof, for the second offense under such section, is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail for a period of not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than $1,000.00 nor more than $3,000.00.
(m) A person violating any provision of subsection (d), (e), (f), (g), (h) or (j) hereof, for the third offense or any subsequent offense under such section, 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 and the court may in its discretion, impose a fine of not less than $3,000.00 nor more than $5,000.00.
(n) For purposes of subsection (l) and (m) hereof relating to second, third and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (b), (c), (d) (e), (f), (g) or (h) hereof or the prior enactment of this section for an offense which occurred within the ten 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 of the United States or a statute of this state or of any other state or an offense which has the same elements as an offense described herein, which occurred within the ten year period immediately preceding the date of arrest in the current proceeding; and
(3) Any period of conditional probation imposed pursuant to Section 333.01B of this Code for violation of subsection (e) hereof, which violation occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(o) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section, if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In that case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final, or the person has previously had a period of conditional probation imposed pursuant to Section 333.01B of this Code.
(p) The fact that any person charged with a violation of subsection (b), (c), (d), (e) (f) or (g) hereof, or any person permitted to drive as described under subsection (h) or (i) hereof, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (b), (c), (d), (e), (f), (g), (h) or (i) hereof.
(q) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in West Virginia Code §60A-1-101 et seq.
(r) The sentences provided herein upon conviction for a violation of this article are mandatory and shall not be subject to suspension or probation; provided, that the court may apply the provisions of §62-11A-1 et seq. of this code to a person sentenced or committed to a term of one year or less for a first offense under this section: provided, however, that the court may impose a term of conditional probation pursuant to §17C-5-2b of this code to persons adjudicated thereunder, or provide for a deferral of any sentence pursuant to the provision of City Code 333.01B to persons adjudicated thereunder. An order for home detention by the court pursuant to the provision of §62-11B-1 et seq., of this code, may be used an alternative sentence to any period of incarceration required by this article for a first or subsequent offense; provided further, that for any period of home incarceration ordered for a person convicted of a second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of 62-11B-5 of this code; and provided further, that for any period of home incarceration ordered for a person convicted of a third or subsequent violation of this section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding §62-11B-5 of this code.
(s) As used in subsections (e), (f), (g), (h), (i) and (j) of this article, the words “drives a vehicle in this City” do not mean or include driving or operating a vehicle solely and exclusively on one’s own property.
(t) In as much as the West Virginia Code limits the powers of a Municipal Judge and the jurisdiction of a Municipal Court, violations of subsections providing for second, third or subsequent offenses or enhanced penalties or penalties or fines beyond the scope of the municipal court's jurisdiction, power or authority shall be prosecuted in the Magistrate Court of Marion County or the Circuit Court of Marion County pursuant to State warrants or upon information or indictment. (Ord. 1834. Passed 10-8-19.)