(A) For the purposes of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CONTROLLED SUBSTANCE. Has the meaning ascribed to it in W.Va. Code Ch. 60A.
DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, DRIVING OR OPERATING A MOTOR VEHICLE WHILE INTOXICATED, FOR ANY PERSON WHO IS UNDER THE INFLUENCE OF INTOXICATING LIQUOR TO DRIVE ANY VEHICLE. These terms or any similar term or phrase shall be construed to mean and be synonymous with the term or phrase WHILE UNDER THE INFLUENCE OF ALCOHOL...DRIVES A VEHICLE as the latter term or phrase is used in this section.
IN THIS MUNICIPALITY. Anywhere within the physical boundaries of this municipality, including, but not limited to, publicly maintained streets and highways, and subdivision streets or other areas not publicly maintained but nonetheless open to the use of the public for purposes of vehicular travel.
(W.Va. Code § 17C-5-2)
(B) A warrant or indictment which charges or alleges an offense, prohibited by the provisions of this section, and which warrant or indictment uses any of the terms or phrases set forth in division (A) hereof, shall not thereby be fatally defective if such warrant or indictment otherwise informs the person so accused of the charges against him or her.
(C) Any person who drives a vehicle in this municipality while he or she:
(1) (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;
(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 0.08% or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of such vehicle, which act or failure proximately causes the death of any person within one year next following such act or failure, is guilty of a misdemeanor, and shall be confined in jail for not less than 90 days nor more than one year and shall be fined not less than $500 nor more than $1,000.
(D) Any person who drives a vehicle in this municipality while he or she:
(1) (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;
(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 0.08% or more, by weight; and
(2) When so driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of such vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor, and shall be confined in jail for not less than one day nor more than one year, which jail term shall include actual confinement of not less than 24 hours and shall be fined not less than $200 nor more than $1,000.
(E) Any person who drives a vehicle in this municipality while he or she:
(1) (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;
(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 0.08% or more, by weight; and
(2) Is guilty of a misdemeanor, and shall be confined in jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than 24 hours, and shall be fined not less than $100 nor more than $500.
(F) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this municipality, is guilty of a misdemeanor, and shall be confined in jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500.
(G) Any person who knowingly permits his or her vehicle to be driven in this municipality by any other person who is:
(1) (a) Under the influence of alcohol;
(b) Under the influence of any controlled substance;
(c) Under the influence of any other drug;
(d) 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 0.08% or more, by weight; and
(2) Is guilty of a misdemeanor and shall be confined in jail for not more than six months and shall be fined not less $100 nor more than $500.
(H) Any person who knowingly permits his or her vehicle to be driven in this municipality by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor, and shall be confined in jail for not more than six months and shall be fined not less than $100 nor more than $500.
(I) (1) Any person under the age of 21 years who drives a vehicle in this municipality while he or she has an alcohol concentration in his or her blood of 0.02% or more, by weight, but less than 0.08%, by weight, shall, for a first offense under this section, be guilty of a misdemeanor, and shall be fined not less than $25 nor more than $100. For a second or subsequent offense under this section, such person is guilty of a misdemeanor, and shall be confined in jail for 24 hours, and shall be fined not less than $100 nor more than $500. A person who is charged with a first offense under the provisions of this section may move for a continuance of the proceedings from time to time to allow the person to participate in the vehicle alcohol test and lock program as provided for in W.Va. Code 17C-5A-3a. 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 section may not be construed as an admission or be used as evidence.
(2) A person arrested and charged with an offense under the provisions of divisions (C), (D), (E), (F), (G), (H) or (I) of this section may not also be charged with an offense under this division arising out of the same transaction or occurrence.
(J) Any person who drives a vehicle in this municipality while he or she:
(1) (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;
(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 0.08% or more, by weight; and
(2) The person when so driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their 16th birthday, shall be guilty of a misdemeanor, and, shall be confined in jail for not less than two days nor more than 12 months, which jail term shall include actual confinement of not less than 48 hours, and shall be fined not less than $200 nor more than $1,000.
(K) A person violating any provision of divisions (C), (D), (E), (F), (G), (H) or (J) hereof shall, for the second offense under this section, be guilty of a misdemeanor, and 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 nor more than $3,000.
(L) A person violating any provision of divisions (E), (F), (G), (H), (I), (J) or (L) hereof shall, for the third or any subsequent offense under this section, be guilty of a felony and charged under W.Va. Code 17C-5-2.
(M) For purposes of divisions (K) and (L) 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 divisions (C), (D), (E), (F) or (G) of this section or under a 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 of any other state of an offense which has the same elements as an offense described in divisions (C), (D), (E), (F), (G) or (H) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(N) 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 such 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.
(O) The fact that any person charged with a violation of divisions (C), (D), (E) or (F) hereof, or any person permitted to drive as described under division (G) or (H) 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 divisions (C), (D), (E), (F), (G) or (H) hereof.
(P) The sentences provided herein upon conviction for a violation of this section are mandatory and may not be subject to suspension or probation; provided, that the court may apply the provisions of W.Va. Code §§ 62-11A-1 et seq. to a person sentenced or committed to a term of one year or less for a first offense under this section. An order for home detention by the court pursuant to the provisions of W.Va. Code §§ 62-11B-1 et seq. may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense; provided, however, that for any period of home incarceration ordered for a person convicted of 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 W.Va. Code § 62-11B-5; 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 W.Va. Code § 62-11B-5.
(Prior Code § 333.01) (W.Va. Code § 17C-5-2a)
Statutory reference:
Related provisions, see W.Va. Code §§ 8-12-5(21), 17C-5A, 17C-5-11a