(A) For the purpose of this section, the following definitions shall apply unless the context clearly implies or requires a different meaning.
BODILY INJURY. Injury that causes substantial physical pain, illness, or any impairment of physical condition.
IMPAIRED STATE. 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 0.08% or more, by weight.
SERIOUS BODILY INJURY. 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.
(B) Any person who drives a vehicle in the 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 more than 30 days and shall be fined not less than $200 nor more than $1,000; provided, such jail term shall include actual confinement of not less than 24 hours, and provided, however, that a person sentenced pursuant to this division (B) shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(C) Any person who drives a vehicle in the municipality: (1) while he or she is in an impaired state; or (2) while he or she is in an impaired state but has an alcohol concentration in his or her blood of less than 0.15% by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for up to 30 days and shall be fined not less than $100 nor more than $500; provided, a person sentenced pursuant to this division (C) shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(D) Any person who drives a vehicle in the municipality while he or she has an alcohol concentration in his or her blood of 0.15% 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 30 days, which jail term is to include actual confinement of not less than 24 hours, and shall be fined not less than $200 nor more than $1,000. A person sentenced pursuant to this division (D) shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(E) Any person who, being a habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in the municipality is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than 30 days, which jail term is to include actual confinement of not less than 24 hours, and shall be fined not less than $100 nor more than $500. A person sentenced pursuant to this division (E) shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(F) Any person who knowingly permits his or her vehicle to be driven in the 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 30 days 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 the 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 30 days and shall be fined not less than $100 nor more than $500.
(H) (1) Any person under the age of 21 years who drives a vehicle in the 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 for a first offense under this division (H) 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 division (H), the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for 24 hours and shall be fined not less than $100 nor more than $500.
(2) A person who is charged with a first offense under the provisions of this division (H) 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 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 division (H) may not be construed as an admission or be used as evidence.
(3) A person arrested and charged with an offense under the provisions of this division (H) or division (B), (C), (D), (E), (F), or (G) above may not also be charged with an offense under this division (H) arising out of the same transaction or occurrence.
(I) Any person who drives a vehicle in the 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 30 days, and shall be fined not less than $200 nor more than $1,000; provided, such jail term shall include actual confinement of not less than 48 hours; and provided, however, that a person sentenced pursuant to this division (I) shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.
(J) A person violating any provision of division (B), (C), (D), (E), (F), or (G) above for the second offense under this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than 30 days, and the court may, in its discretion, impose a fine of not less than $1,000 nor more than $3,000.
(K) For purposes of division (J) above 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 division (B), (C), (D), (E), or (F) above, 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 of 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 division (B), (C), (D), (E), (F), or (G) above, 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 § 72.022 of this code for violation of division (C) of this section, which violation occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.
(L) A person may be charged by warrant 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 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 § 72.022 of this code.
(M) The fact that any person charged with a violation of division (B), (C), (D), or (E) of this section, or any person permitted to drive as described under division (F) or (G) 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 division (B), (C), (D), (E), (F), or (G) of this section.
(N) For purposes of this section, the term CONTROLLED SUBSTANCE has the meaning ascribed to it in W. Va. Code § 60A-1-101 et seq.
(O) (1) 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, if the municipality has enacted an ordinance at the time to allow alternative sentencing, 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 30 days or less for a first offense under this section. Provided, however, the court may impose a term of conditional probation pursuant to § 72.022 of this code to persons adjudicated thereunder.
(2) 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 further, that for any period of home incarceration ordered for a person convicted of a second offense under this section, electronic monitoring shall be required for not fewer than five days of the total period of home confinement ordered, and the offender may not leave home for those five days. 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 not fewer than ten days of the total period of home confinement ordered, and the offender may not leave home for those ten days.
(P) For the purposes of this section, the phrase IN THIS MUNICIPALITY means anywhere within the physical boundaries of the town, including, but not limited to, any annexed properties, publicly maintained streets and highways, and subdivision streets, or other areas not publicly maintained but nonetheless open to use to the public for purposes of vehicular travel.
(Prior Code, § 333.02) (Ord. 12-001, passed 7-9-2012; Ord. 2020-001, passed 2-28-2020) Penalty, see § 72.999
Statutory reference:
Generally, see W. Va. Code §§ 17C-5-2, 17C-5-2a