(A) The title of this section shall be the “Marlinton Public Drinking and Public Intoxication Ordinance”.
(B) It is ordained and passed by the town:
(1) A person shall not:
(a) Appear in a public in an intoxicated condition;
(b) Drink alcoholic liquor in a public place;
(c) Drink alcoholic liquor in a motor vehicle on any highway, street, alley or in a public garage;
(d) Tender a drink of alcoholic liquor to another person in a public place;
(e) Possess alcoholic liquor in the amount in excess of ten gallons, in containers not bearing stamps or seals of the Commissioner, without having first obtained written authority from the said Commissioner therefor;
(f) Possess any alcoholic liquor which was manufactured or acquired in violation of the provisions of the West Virginia Code; and
(g) Purchase or attempt to purchase alcoholic liquor, wine or nonintoxicating beer if such person at the time of the purchase or attempted purchase is under the age of 19 unless the person is at least 18 years of age as of July 1, 1983.
(2) Any law enforcement officer may arrest without a warrant and take the following actions against a person who, in his or her presence, violates division (A)(1) above:
(a) If there is some nonintoxicated person who will accept responsibility for the intoxicated person, the officer may issue the intoxicated person a citation specifying a date for appearance before a judicial officer and release him or her to the custody of the individual accepting responsibility; provided, that the issuance of a citation shall be used whenever feasible;
(b) If it does not impose an undue burden on the officer, he or she may, after issuance of such a citation transport the individual to the individual’s present residence or arrange for such transportation; or
(c) 1. If the individual is incapacitated and, in the law-enforcement officer’s judgment, is in need of acute medical attention, that officer shall arrange for transportation by ambulance or otherwise to a hospital emergency room. The officer shall accompany the individual until he or she is discharged from the emergency room or admitted to the hospital.
2. If the individual is released from the emergency room, the officer may proceed as described in divisions (B)(2)(a) and (B)(2)(b) above. If the individual is admitted to the hospital, the officer shall issue a citation to the individual specifying a date for appearance before a judicial officer.
(3) (a) Upon presentment before the proper judicial officer the law enforcement officer shall serve as the chief complaining witness. The judicial officer must make a finding that there is probative evidence that the individual may be guilty of the charge of public intoxication. If such evidence is not presented, the charge shall be dismissed and the individual released. If sufficient evidence is presented, the judicial officer shall issue a warrant and establish bail or issue a summons to the individual.
(b) Once a warrant or summons has been issued, the following actions may be taken:
1. If the individual is no longer incapacitated, he or she may be released;
2. If the individual is still incapacitated but a nonintoxicated person is available to accept responsibility for him or her, he or she may be released to the responsible person; or
3. If the individual is still incapacitated, and no responsible person is available, the judicial officer shall proceed under the provisions of W. Va. Code §§ 27-5-1 et seq. or 27-6A-1 et seq.
(4) Any law enforcement officer is hereby authorized and empowered to arrest and hold custody, without a warrant, until complaint may be made before a judicial officer and a warrant or summons issued, any person who in the presence of the law enforcement officer violates any one or more of divisions (B)(1)(a) through (B)(1)(f) above; provided, that the law enforcement officer may use reasonable force to prevent harm to himself or herself, the individual arrested or others in carrying out the provisions of this section.
(C) The definitions for all terms used in this section shall be the same as those definitions being accepted by the West Virginia Legislature.
(Ord. passed 9-16-1983) Penalty, see § 133.99