(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 West Virginia Code 60A-1-101.
(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) For purposes of Article 333 of the Municipal Code, "test and lock program" means the Motor Vehicle Test and Lock Program, established in West Virginia Code 17C-5A-3a and administered by the Division of Motor Vehicles.
(6) For purposes of this Article 333 of the Municipal Code, "in this Municipality" shall mean 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. "In this Municipality" does not mean or include driving or operating a vehicle solely and exclusively on one's own property in an area not open to the use of the public for purposes of vehicular travel.
(Ord. 2313. Passed 10-7-21.)
(b) Any person who drives a vehicle in this Municipality 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 shall be prosecuted under appropriate State law.
(c) Any person who drives a vehicle in this Municipality 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 shall be prosecuted under appropriate State law.
(d) Any person who drives a vehicle in this Municipality 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 one day nor more than thirty (30) days and shall be fined not less than $200 nor more than $1,000: Provided, That such jail term shall include actual confinement of not less than 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 Municipality: (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, shall be confined in jail for up to thirty (30) days and shall be fined not less than $100 nor more than $500: 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 in this Municipality 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 thirty (30) days, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than $200 nor more than $1,000. 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 amphetamine or any derivative thereof, drives a vehicle in this Municipality is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than thirty (30) days, which jail term is to include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500. 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 in this Municipality 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 (30) days and shall be fined not less than $100 nor more than $500.
(i) Any person who knowingly permits his or her vehicle to be driven in this Municipality by any other person who is a habitual user of narcotic drugs or amphetamine or any derivative thereof is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than thirty (30) days and shall be fined not less than $100 nor more than $500.
(j) Any person under the age of twenty-one years who drives a vehicle in this Municipality 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. 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 nor more than $500. 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 in West Virginia Code 17C-5A-3a and Section 333.011. 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.
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 in this Municipality 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 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 (30) days, and shall be fined not less than $200 nor more than $1,000: 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 subsection 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) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for thirty (30) days and the court may, in its discretion, impose a fine of not less than $1,000 nor more than $3,000.
(m) A person violating any provision of subsection (d), (e), (f), (g), (h) or (j) of this section, for the third or any subsequent offense under this section, is guilty of a felony and shall be prosecuted under appropriate State law.
(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 under this section:
(1) Any conviction under the provisions of subsection (b), (c), (d), (e), (f), (g) or (h) of this section or West Virginia Code 17C-5-2 or under a prior enactment of this section or West Virginia Code 17C-5-2 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 subsection (b), (c), (d), (e), (f), (g), (h) or (i) of this section, which offense 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 West Virginia Code 17C-5-2b for violation of subsection (e) of this section or West Virginia Code 17C-5-2(e), 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 period 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 West Virginia Code 17C-5-2b.
(p) The fact that any person charged with a violation of subsection (b), (c), (d), (e), (f) or (g) of this section, or any person permitted to drive as described under subsection (h) or (i) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (b), (c), (d), (e), (f), (g), (h) or (i) of this section.
(q) For purposes of this section, the term "controlled substance" has the meaning ascribed to it in West Virginia Code Chapter 60A.
(r) The sentences provided in this section upon conviction for a violation of this section are mandatory and are not subject to suspension or probation: Provided, That the court may apply the provisions of West Virginia Code Article 62-11A 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 West Virginia Code 17C-5-2b to persons adjudicated thereunder. An order for home detention by the court pursuant to the provisions of West Virginia Code Article 62-11B may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense: Provided, further, 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 West Virginia Code 62-11B-5: 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 West Virginia Code 62-11B-5. (W. Va. Code § 17C-5-2) (W. Va. Code § 17C-5-11)
(s) For purposes of this article, the phrase "in this Municipality" shall mean 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.
(t) When used in the Codified Ordinances, the terms or phrases "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," 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.
(u) 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 subsection (t) of this section, shall not thereby be fatally defective if such warrant or indictment otherwise informs the person so accused of the charges against him.
(W. Va. Code § 17C-5-2a; Ord. 2240. Passed 3-2-17.)