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West Virginia
§20-7-18b. Operating under influence of alcohol, controlled substances or drugs; penalties.
(a) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes the death of any person within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the state correctional facility for not less than one nor more than ten years and shall be fined not less than one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than five hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional 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 one hundred dollars nor more than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, operates a motorboat, jet ski or other motorized vessel in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional 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 one hundred dollars nor more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this state by any other person who is:
(A) Under the influence of alcohol; or
(B) Under the influence of any controlled substance; or
(C) Under the influence of any other drug; or
(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 eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(g) Any person who knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(h) Any person under the age of twenty-one years who operates a motorboat, jet ski or other motorized vessel in this state 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, shall, for a first offense under this subsection, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) The person when so operating has on or within the motorboat, jet ski or other motorized vessel one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term shall include actual confinement of not less than forty-eight hours, and shall be fined not less than two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional 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 one thousand dollars nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than three thousand dollars nor more than five thousand dollars.
(l) For purposes of subsections (j) and (k) of this section 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 subsection (a), (b), (c), (d), (e) or (f) of this section for an offense which occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a) or (b) of this section for an offense which occurred within a period of five years immediately preceding the date of the offense; and
(3) 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 (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the effective date of this section.
(m) 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. The warrant or indictment or information shall 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.
(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to operate as described under subsection (f) or (g) of this section, 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 subsection (a), (b), (c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.
(p) The sentences provided herein upon conviction for a violation of this article are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section.
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Driving while intoxicated known as DWI, DUI (driving under the influence) or OUI (operating under the influence) is a serious offense in West Virginia. Losing your license to operate a vehicle in WV is just one of the penalties. It is in your best interest to hire an experienced criminal defense attorney to handle your case. A lawyer who specializes in drunken driving cases will be able to defend your constitutional rights. The field sobriety tests, the breathalyzer or Alcotest blood alcohol content (BAC) readings may be flawed and could result in a not guilty verdict in court. Only an experienced DWI lawyer will know how these tests should be administered and whether they were performed according to the guidelines provided by the National Highway Traffic Safety Administration (NHTSA).
Standardized Field Sobriety Testing
The National Highway Traffic Safety Administration has created a set of Standardized Field Sobriety Test (SFST). These three tests have to be administered and evaluated in a standardized manner to obtain accurate indicators of impairment. Most police officers fail to administer these tests correctly. Your DWI attorney may be able to challenge the validity of the stop and arrest by reading the report submitted by the police officer or trooper or by the testimony provided in court.
The Standardized Field Sobriety Tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). NHTSA then developed a training regimen for law enforcement officers to provide a consistent way of evaluating the results from DWI suspects. Although police officers use a variety of tests when they pull someone over for suspected driving under the influence of alcohol, the three that are NHTSA accepted are:
- Horizontal Gaze Nystagmus
- Walk and Turn
- One Leg Stand
Other tests, like counting backwards or saying the alphabet from one letter to another have not been proven to be reliable indicators of being intoxicated or under the influence. Keep in mind that even the reliable tests must be administered correctly for them to be valid indicators of DWI.
Horizontal Gaze Nystagmus (HGN) Testing
The horizontal gaze nystagmus test checks if you have involuntary twitching of the eyeball. This occurs naturally as the eyes gaze at a right angle towards the side. When someone is under the influence of alcohol, nystagmus (twitching of the eyeballs) occurs at lesser angles. During this test, the officer will have the subject follow a pen or light with his eyes. The officer must observe the subject eyes. The three indicators that the officer looks for in each eye are:
- If the subject is smoothly following of the moving object with his/her eyes
- If the eye begins to jerk distinctly at the maximum range (right angle)
- If the angle of jerking begins within 45 degrees of center
According to the National Highway Traffic Safety Administration has determined that if between both eyes, four or more indicators are present the subject is probably under the influence. This test is therefore allowed for the purpose of making a DWI/DUI arrest and requiring a breath test at the police station.
Walk & Turn and One Leg Stand Tests
The other two tests that the National Highway Traffic Safety Administration believes are accurate predictors of DWI are the so called, “divided attention” tests. These tests can supposedly be done by most sober people. Although many police officers will tell you that they hear people say, “I can’t do that when I’m sober.” (By the way, this is not the wisest thing to say if you are a DWI suspect.) According to NHTSA, suspects cannot usually follow instructions and perform physical tests when they are impaired.
Walk & Turn
In the Walk & Turn test, the police officer will ask the DWI suspect to take nine steps placing the heel to the toe in a straight line. Someone suspected of DWI should follow instructions carefully for this test. The seven indicators of failure in the walk and turn are:
- Failure to maintain balance while listening to instructions
- Starting before the instructions are completely stated
- Stopping while walking to regain balance
- Lack of heel to toe touching
- Using arms to regain or maintain balance
- Loss of balance while turning
- Taking an incorrect number of steps
NHTSA research indicates that the majority of DUI suspects who fail two or more of the above items are operating under the influence. You will be arrested and charged with DUI/DWI and required to provide a breath sample.
One Leg Stand
The one leg stand test requires the DWI suspect to stand with one foot approximately six inches off the ground and count aloud starting with one thousand and increasing by one (one thousand-one, one thousand-two, one thousand three, etc…) until told to lower the foot by the police officer. The officer is required to time the subject for 30 seconds. The four indicators of DWI impairment are:
- Swaying while balancing
- Using arms to balance
- Hopping to maintain balance
- Placing the foot down
NHTSA research indicates that the majority of DWI suspects who exhibit two or more of these indicators are under the influence.
Probable Cause
The field tests that are administered on the side of the road are used by police officers to establish probable cause for the arrest. Your DWI attorney may be able to challenge these tests as well as the reason you were stopped in the first place. In order for these tests to yield valid results they have to be administered in the proscribed manner and must be evaluated based on a total number of indicators. The more indicators are present, the more likely that the person is operating under the influence.
Because most people charged with DWI do not understand what these tests are looking for or how they should be administered, it is extremely important that a lawyer that specializes in DWI defense be used to examine all the evidence and provide a recommendation on how to proceed. Designed and Hosted by Alonso Consulting, Inc. |
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