Bill Text: WV HB2098 | 2018 | Regular Session | Introduced
Bill Title: Requiring the issuance of a search warrant before a driver of a motor vehicle can be made to submit to a secondary blood test
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-01-10 - To House Roads and Transportation [HB2098 Detail]
Download: West_Virginia-2018-HB2098-Introduced.html
West Virginia
Legislature
2017 Regular Session
Introduced
House Bill Number
(By Delegates Folk and Sobonya)
[
to the Committee on Roads and Transportation then the Judiciary.
A BILL to amend and
reenact §17C-5-4 of the Code of West Virginia, 1931, as amended, relating to
requiring the issuance of a search warrant before a driver of a motor vehicle
can be made to submit to a secondary blood test to determine the concentration
of alcohol or controlled substance in his or her blood.
Be it enacted by the
Legislature of West Virginia:
That §17C-5-4 of the Code
of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 5. SERIOUS TRAFFIC
OFFENSES.
§17C-5-4. Implied consent to test; search warrant;
administration at direction of law-enforcement officer; designation of type of
test; definition of law-enforcement officer.
(a) The Legislature
finds that:
(1) The Fourth Amendment to the United States Constitution requires
law enforcement to have probable cause and a valid search warrant before
searching an individual;
(2) In Missouri v.
McNeely, 133 S.Ct. 1552 (2013), the Supreme Court of the United
States noted that a compelled test of an individual's blood is "an
invasion of bodily integrity" that "implicates an individual's most
personal and deep-rooted expectations of privacy."
(3) In Missouri v.
McNeely, 133 S.Ct. 1552 (2013), the Supreme Court of the United States held
that in the absence of exigent circumstances, a compelled blood test without a
search warrant violates an individual's Fourth Amendment right against unreasonable searches and
seizures.
(a) (b) Any
person who drives a motor vehicle in this state is considered to have given his
or her consent by the operation of the motor vehicle to a preliminary breath
analysis and a secondary chemical test of either his or her blood
or breath and, upon issuance of a search warrant, a secondary chemical
test of the driver's blood to determine the alcohol concentration in his or her
blood, or the concentration in the person's
body of a controlled substance, drug, or any combination thereof.
(b) (c) A
preliminary breath analysis may be administered in accordance with the
provisions of section five of this article whenever a law-enforcement
officer has reasonable cause to believe a person has committed an offense
prohibited by section two of this article or by an ordinance of a municipality
of this state which has the same elements as an offense described in section
two of this article.
(c) (d) A
secondary test of blood or breath is incidental to a lawful arrest and is to
may be administered after a lawful arrest at the direction of the
arresting law-enforcement officer having a search warrant and probable
cause to believe the person arrested has committed an offense prohibited
by section two of this article or by an ordinance of a municipality of this
state which has the same elements as an offense described in section two of
this article.
(e) Notwithstanding any
provision of this code, a warrant is required for any nonconsensual test of a
person's blood, and the dissipation of alcohol in a person's blood does not
constitute an exigent circumstance, justifying an exception to the warrant
requirement for nonconsenual blood testing in a criminal investigation.
(d) (f) The law-enforcement agency that employs
the arresting law-enforcement officer shall designate the secondary tests to be
administered: Notwithstanding the
provisions of section seven of this article, the refusal to submit to a
blood test only may not result in the revocation of the arrested person's license to operate a motor vehicle in this state.
(e) (g) Any
person to whom a preliminary breath test is administered who is arrested shall
be given a written statement advising him or her that his or her refusal to
submit to the secondary chemical test pursuant to subsection (d) of this
section will not result in the revocation of his or her license to
operate a motor vehicle in this state. for a period of at least forty-five
days and up to life.
(f) (h) Any
law-enforcement officer who has been properly trained in the administration of
any secondary chemical test authorized by this article, including, but not
limited to, certification by the Bureau for Public Health in the operation of
any equipment required for the collection and analysis of a breath sample, may
conduct the test at any location in the county wherein the arrest is made: Provided, That the law-enforcement
officer may conduct the test at the nearest available properly functioning
secondary chemical testing device located outside the county in which the
arrest was made, if: (i) There is no
properly functioning secondary chemical testing device located within the
county the arrest was made; or (ii) there is no magistrate available within the
county the arrest was made for the arraignment of the person arrested. A law-enforcement
officer who is directing that a secondary chemical test be conducted has the
authority to transport the person arrested to where the secondary chemical
testing device is located.
(g) (i) If the arresting officer lacks proper
training in the administration of a secondary chemical test, then any other law-enforcement
officer who has received training in the administration of the secondary
chemical test to be administered may, upon the request of the arresting law-enforcement
officer and in his or her presence, conduct the secondary test. The results of a test conducted pursuant to
this subsection may be used in evidence to the same extent and in the same
manner as if the test had been conducted by the arresting law-enforcement
officer.
(h) (j) Only the person actually administering or
conducting a test conducted pursuant to this article is competent to testify as
to the results and the veracity of the test.
(i) (k) (1) For the purpose of this article, the
term "law-enforcement officer" or "police
officer" means: (1) Any member of
the West Virginia State Police; (2) any sheriff and any deputy sheriff of any
county; (3) any member of a police department in any municipality as defined in
section two, article one, chapter eight of this code; (4) any natural resources
police officer of the Division of Natural Resources; and (5) any special police
officer appointed by the Governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the course of
instruction at a law-enforcement training academy as provided for under the
provisions of section nine, article twenty-nine, chapter thirty of this code.
(2) In addition to
standards promulgated by the Governor's
Committee on Crime, Delinquency and Correction, pursuant to section three,
article twenty-nine, chapter thirty of this code, governing the qualification
of law-enforcement officers and the entry-level law-enforcement training
curricula, the Governor's Committee on Crime,
Delinquency and Correction shall require the satisfactory completion of a
minimum of not less than six hours of training in the recognition of impairment
in drivers who are under the influence of controlled substances or drugs other
than alcohol.
(3) In addition to
standards promulgated by the Governor's
Committee on Crime, Delinquency and Correction, pursuant to section three,
article twenty-nine, chapter thirty of this code, establishing standards
governing in-service law-enforcement officer training curricula and in-service
supervisory level training curricula, the Governor's Committee on Crime, Delinquency and Correction shall
require the satisfactory completion of a minimum of not less than six hours of
training in the recognition of impairment in drivers who are under the
influence of controlled substances or drugs other than alcohol.
(4) That after December 31,
2014, a law-enforcement officer who has not satisfactorily completed the
minimum number of hours of training in the recognition of impairment in drivers
who are under the influence of controlled substances or drugs other than
alcohol, required by subdivisions subdivision (2) or (3) of
this subsection, may no longer require any person to submit to secondary
chemical test of his or her blood for the purposes of determining the
concentration in the person's body of a
controlled substance, drug, or any combination thereof.
(j) (l) A law-enforcement officer who has
reasonable cause to believe that person has committed an offense prohibited by
section eighteen, article seven, chapter twenty of this code, relating to the
operation of a motorboat, jet ski or other motorized vessel, shall follow the
provisions of this section in administering, or causing to be administered, a
preliminary breath analysis and incidental to a lawful arrest, a secondary
chemical test of the accused person's
blood or breath to determine the alcohol concentration in his or her blood, or
the concentration in the person's body of
a controlled substance, drug, or any combination thereof.
NOTE: The purpose of this bill is
to require a search warrant be issued before a driver of a motor vehicle can be
made to submit to a secondary blood test to determine the concentration of
alcohol or controlled substance in his or her blood.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.