At DUINewsBlog.org, The Wagner Law Firm, West Virginia’s Premier DUI Defense Firm, and that of The Wagner Law Firm founder, and West Virginia’s only exclusive DUI attorney, Harley O. Wagner, strive to keep the public advised of any and all changes to the DUI statutes and laws governing in the state of West Virginia.
One very relevant and impactful change to the DUI laws of West Virginia was recently passed by both the House and Senate of West Virginia legislature and is assured to be signed into law by presiding Governor Tomblin.
House Bill 2513, a.k.a. “The DUI Drug Bill”, will become effective June 1, 2013. This legislation fundamentally alters relevant DUI statutes, the content of the Implied Consent form that a West Virginia law enforcement officer reads to a citizen arrested for DUI in this state, prior to the requesting of further testing post arrest in which to determine the level of alcohol in the citizen’s system and/or that of the level of a prescirbed medication or controlled substance, and that of the driver’s license suspension penalty facing the citizen accused.
This Implied Consent form is comnonly known as the advice of rights form as related to the request of chemical testing post arrest by the arresting officer and that of consquence to the citizens driver’s license should he or she refuse said testing and not comply with the officer’s request.
The forthcoming statutory changes can be found in WV Code 17C-5-4, Implied Consent; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer. Subsection (a): 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, to determine the alcohol concentration in his or her blood, or the presence in the person’s body of a controlled substance, drug, or any combination thereof.
Now what this means in application to the citizen accused is that should the arresting officer suspect that the citizen is under the influence of prescription medication and/or a controlled substance such as marijuana, cocaine, heroine, etcetera, said officer can direct the citizen to submit to the tesing of his or her blood to so determine or face the loss of his or her West Virginia driver’s license for one (1) year.
This amendment to the DUI laws of West Virginia will be set forth in WV Code 17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing. *Noting that West Virginia does not afford “work privileges” on any license or privilege to drive in this state that is suspended for a DUI related reason. Further noting that unlike an alcohol based DUI license suspension, a DUI Drug suspension does not afford any reduction in the suspension period with the agreed use of the Interlock device (a.k.a the blow tube). Of additional note, refusal to submit to a blood test is not admissible in a (criminal) trial for the offense of driving under the influence of a controlled substance or drug. To be contained in WV Code 17C-5-7(d).
Subsection (i)(2) of WV Code 17C-5-4 WV code section shall now also require 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.”
Subsection (i)(4) of WV Code 17C-5-4 sets forth the time period in which this training must completed. That after Decmeber 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 (2) or (3), may no longer require any person to submit to a secondary chemical test of his or her blod for the purposes of determining the presence in the person’s body of a controlled substance, drug, or any combination thereof.
Who is statutorily authorized to withdraw the citizen’s blood, has been legislatively addressed amended and is contained in WV Code 17C-5-6. How blood test administered; additional test at option of person tested; use of test results; certain immunity from liability incident to administering test. To wit, Only a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his or her employment, acting at the request and direction of the law enforcement officer, may withdraw blood to determine the alcohol concentration in the blood, or the presence in the blood of a controlled substance, drug, or any combination thereof. These limitations shall not apply to the taking of a breath test. *The citizen can also request, at his or her own expense, an additional chemical test other than the one designated by the arresting officer.
WV Code 17C-5-8, Interpretation and use of chemical test, shall be amended to set forth the time period in which these blood test results can be admissible providing proper foundation has been laid before the trial judge. Subsection (g)(1) A sample or specimen taken to determine the alcohol concentration of a person’s blood, must be taken within four hours of the person’s arrest. *Noting that subsection (h) of this same code section makes clear that a separate “possession” charge cannot be given by a law enforcement officer in this circumstance.
To re-cap, a new amendment to the DUI laws of West Virginia, dealing with a citizen accused of driving under the influence of prescription medication or controlled substance, and license consquences for refusing said testing therein, has been passed by the West Virginia legislature and will become effective law in the State of West Virginia on or about June 1, 2013.
*If arrested for DUI Drugs, and an officer so requests, a citzen must provide a sample of his or her blood for chemical testing. If he or she refuses, the citizen can lose his or her West Virgnia license, or driving privileges, for one hard year, with no suspension reduction possible.
*All officers must recieve a minimum of six (6) of DUI drug recognition training by December 31, 2014 or will no lnoger be able to have the legal authority to so direct a citzen to submit to a blood test in which to determine the level of prescription medication or controlled substance in the citizen’s system.
*To be otherwise admissible in a court of law the sample must have been taken within four (4) of the citizen’s arrest for DUI drugs.
*A citizen cannot also be charged with possesson of a controlled substance based on the fact a blood result is reported to reveal an illegal substance in the citizen’s body at time of arrest.
*Only a doctor, nurse or medical technician with proper medical training may extract the blood from the citizen accused.
Next up at DUINewsBlog.org, The Wagner Law Firm, West Virginia’s Premier DUI Defense Firm, and West Virginia DUI Attorney, Harley O. Wagner, shall set forth what a citizen suspected of driving under the influence of prescription medication or controlled substance should do upon being arrested.
Harley O. Wagner, Esq.
The Wagner Law Firm
West Virginia’s Premier DUI Defense Firm