(a) No person shall:
(1) Appear in a public place in an intoxicated condition;
(2) Drink alcoholic liquor or nonintoxicating beer or have an open container of alcoholic liquor or nonintoxicating beer in or on any public sidewalk, walkway, entranceway, street, lane or other public place;
(3) Drink alcoholic liquor or nonintoxicating beer in a motor vehicle on any highway, street, alley or in a public garage. No person shall possess an open container of nonintoxicating beer or alcoholic liquor in a motor vehicle except in a place which can be reached only by leaving the vehicle;
(4) Tender a drink of alcoholic liquor to another person in a public place;
(5) Operate a business without a license issued under West Virginia Code 60-1-1 et seq., which knowingly facilitates the consumption of alcoholic liquors in a public place by providing for on-site items such as cups, glasses, ice and nonalcoholic beverages used to mix with alcoholic liquors, refrigeration, or on-site storage of alcoholic liquors in a lounge area or space for persons to gather, perhaps offering musical entertainment, exotic dancing, or other such nude entertainment, or other similar activity or entertainment. Such business may be commonly known as a “bring your own bottle”, “ bring your own booze” or “BYOB” establishments;
(6) Possess alcoholic liquor in the amount in excess of ten gallons, in containers not bearing stamps or seals of the West Virginia Alcohol Beverage Control Commissioner, without having first obtained written authority from the Commissioner therefor;
(7) Possess any alcoholic liquor which was manufactured or acquired in violation of the provisions of West Virginia Code Chapter 60.
(b) Whoever violates subsection (a)(5) or (a)(6) hereof is guilty of a misdemeanor for a first offense. (WVaC 60-6-9)
(c) Any law enforcement officer is hereby authorized and empowered to arrest and hold in 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 subdivisions(a)(1) through (a)(4) of this section: 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.
(d) A person charged with a violation of subsection (a)(1) of this section who is an alcoholic, and who asserts alcoholism as an affirmative defense, shall be found not guilty by reason of addiction after proper disposition made pursuant to articles five and six -a. chapter twenty-seven of the West Virginia Code and pursuant to the State Law this Court requires and considers the following:
(e) When a defendant charged with public intoxication asserts an affirmative defense that he or she is not criminally responsible due to addiction to alcohol, then judge shall order an examination of such defendant to be completed by an alcoholism counselor. The Court may require the preparation and submission by that counselor or facility of a report which shall in addition to determining the individual's competence and criminal responsibility shall also describe the scope of the addiction and any suggested or proposed methods of care or treatment which may be appropriate. Such order of the court shall stipulate the return of the individual to the court.
(f) The judicial officer may then modify his order and may continue the criminal proceedings in his court until a diagnosis of alcoholism has been made: Provided further, that once a diagnosis is made, the judicial officer shall find the individual not guilty by reason of addiction as provided by section nine, article six, chapter sixty of the code and may then immediately forward the information provided to a mental health commissioner to evaluate and decide whether or not to initiate proceedings unless such proceedings have already begun and are proceeding.
(g) For a first offense only: any person who violates subsection (a)(1) of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced by a judicial officer in accordance with the following options: (1) Upon first offense a fine of not less than five dollars ($5.00) nor more than one hundred dollars ($100.00). However, if the individual, prior to conviction, agrees to voluntarily attend an alcohol education program of not more than six hours duration at the nearest community mental health or alcohol treatment center or established treatment program, the judicial officer may delay sentencing until the program is completed and upon completion may dismiss the charges.
(Ord. 14147. Passed 6-21-11.)