(a) A preliminary breath analysis may be administered to a child whenever a law enforcement official has reasonable cause to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood, for the purpose of determining the child’s blood alcohol content. Such breath analysis must be administered as soon as possible after the law enforcement officer arrives at a reasonable belief that the child has been driving a motor vehicle with any amount of alcohol in his or her blood. Any preliminary breath analysis administered pursuant to this subsection must be administered with a device and in a manner approved by the Division of Health for that purpose. If a preliminary breath analysis is administered, the results shall be used solely for the purpose of guiding the officer in deciding whether the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, and should therefore be taken into custody to administer a secondary test in accordance with the provisions of this section.
(b) A child may be taken into custody by a law enforcement official without a warrant or court order if the official has reasonable grounds to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood. If a preliminary breath analysis is administered and the results of the analysis indicate that the child has an alcohol concentration in his or her blood of less than two hundredths of one percent, by weight, the child may not be taken into custody unless other grounds exist under West Virginia Code 49-5-8(b). Upon taking a child into custody pursuant to the provisions of this section, the official shall take all reasonable steps to cause notification to be made to the child’s parent or custodian or, if the parent or custodian cannot be located, to a close relative.
(c) Upon taking a child into custody pursuant to this section, the official shall take the child to a facility where a secondary test of the child’s blood or urine may be administered at the direction of the official or a test of the child’s breath may be administered by the official. The law enforcement agency by which such law enforcement official is employed shall designate whether the secondary test is a test of either blood, breath or urine. Provided, that if the test so designated is a blood test and the child refuses to submit to the blood test, then the law enforcement official taking the child into custody shall designate in lieu thereof a breath test to be administered. Notwithstanding the provisions of West Virginia Code 17C-5-7, a refusal to submit to a blood test only shall not result in the revocation of the child’s license to operate a motor vehicle in this State. Any child taken into custody pursuant to this section shall be given a written statement advising him or her that a refusal to submit to a secondary test of either blood, breath or urine, as finally designated by the law enforcement agency or official in accordance with this subsection, will result in the suspension of his or her license to operate a motor vehicle in this State for a period of at least thirty days or a revocation of the license for a period up to life.
(d) If at any point in time the Police Department does not have available the testing equipment or facilities necessary to conduct any secondary test which may be administered pursuant to the provisions of this section, then the official who took the child into custody may request another qualified person to administer a secondary breath test; provided, that the breath test shall be administered in the presence of the official who took the child into custody. The results of such breath test may be used in evidence to the same extent and in the same manner as if such test had been conducted by the law enforcement official who took the child into custody. The qualified person administering the breath test must be a member of the Division of Public Safety, the sheriff of the county wherein the child was taken into custody or any deputy of such sheriff, or a law enforcement official of another municipality within the county wherein the child was taken into custody. Only the person actually administering the secondary breath test is competent to testify as to the results and veracity of the test. If the secondary test is a blood test the test shall be conducted in accordance with the provisions of West Virginia Code 17C-5-6.
(e) After taking the child into custody, if the law enforcement official has reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest of an offense defined under the provisions of West Virginia Code 17C-5-2 if the child were an adult, then the official shall proceed to treat the child in the same manner as any other child taken into custody without a warrant or court order, in accordance with the provisions of West Virginia Code 17C-5-8.
(f) If the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of eight hundredths of one percent or less, by weight, and if the law enforcement official does not have reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of this article if the child were an adult, then the official shall release the child: Provided, that if the results of any secondary test administered pursuant to this section indicate that the child at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, the child shall only be released to a parent or custodian, or to some other responsible adult.