§ 32-455. Driving under influence of alcohol, controlled substances or drugs; penalties

(a) Any person who:

(1) Drives a vehicle in this state while he:

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;

d. Is under the combined influence of alcohol and any controlled substance or any other drug; or

e. Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight; and

(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, 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 a state correctional facility for not less than two years nor more than ten years and shall be fined not less than $1,000.00 nor more than $3,000.00.

(b) Any person who:

(1) Drives a vehicle in this state while he:

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;

d. Is under the combined influence of alcohol and any controlled substance or any other drug;

e. Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight; and

(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, 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 jail for not less than 90 days nor more than one year and shall be fined not less than $500.00 nor more than $1,000.00.

(c) Any person who:

(1) Drives a vehicle in this state while he:

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;

d. Is under the combined influence of alcohol and any controlled substance or any other drug; or

e. Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight; and

(2) While driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself;

is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than one year, which jail term is to include actual confinement of not less than 24 hours, and shall be fined not less than $200.00 nor more than $1,000.00.

(d) Any person who drives a vehicle in this state while he:

(1) Is under the influence of alcohol;

(2) Is under the influence of any controlled substance;

(3) Is under the influence of any other drug;

(4) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(5) Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent, by weight;

is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for up to six months and shall be fined not less than $100.00 nor more than $500.00. A person sentenced pursuant to this subsection shall receive credit for any period of actual confinement he served upon arrest for the subject offense.

(e) Any person who drives a vehicle in this state while he has an alcohol concentration in his blood of fifteen hundredths of one percent 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 six months, which jail term is to include actual confinement of not less than 24 hours, and shall be fined not less than $200.00 nor more than $1,000.00. A person sentenced pursuant to this subsection shall receive credit for any period of actual confinement he served upon arrest for the subject offense.

(f) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, drives a vehicle in this state is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than one day nor more than six months, which jail term is to include actual confinement of not less than 24 hours, and shall be fined not less than $100.00 nor more than $500.00. A person sentenced pursuant to this subsection shall receive credit for any period of actual confinement he served upon arrest for the subject offense.

(g) Any person who knowingly permits his vehicle to be driven in this state by any other person who:

(1) Is under the influence of alcohol;

(2) Is under the influence of any controlled substance;

(3) Is under the influence of any other drug;

(4) Is under the combined influence of alcohol and any controlled substance or any other drug;

(5) Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight;

is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be fined not less than $100.00 nor more than $500.00.

(h) Any person who knowingly permits his vehicle to be driven 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 jail for not more than six months and shall be fined not less than $100.00 nor more than $500.00.

(i) Any person under the age of 21 years who drives a vehicle in this state while he has an alcohol concentration in his blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25.00 nor more than $100.00. For a second or subsequent offense under this subsection, 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 $100.00 nor more than $500.00. A person who is charged with a first offense under the provisions of this subsection 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 state law. 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 subsection may not be construed as an admission or be used as evidence.

A person arrested and charged with an offense under the provisions of this subsection or subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.

(j) Any person who:

(1) Drives a vehicle in this state while he:

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;

d. Is under the combined influence of alcohol and any controlled substance or any other drug; or

e. Has an alcohol concentration in his blood of eight hundredths of one percent or more, by weight; and

(2) While driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their 16th birthday;

is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not less than two days nor more than 12 months, which jail term is to include actual confinement of not less than 48 hours, and shall be fined not less than $200.00 nor more than $1,000.00.

(k) A person violating any provision of subsections (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 jail for not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than $1,000.00 nor more than $3,000.00.

(l) A person violating any provision of subsections (b), (c), (d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, is 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 $3,000.00 nor more than $5,000.00.

(m) For purposes of subsections (k) and (l) of this section relating to second, third and subsequent offenses, the following types of convictions are to be regarded as convictions under this section:

(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of this section 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 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), (g) or (h) of this section, which offense occurred within the ten-year period immediately preceding the date of arrest in the current proceeding.

(n) 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 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 or indictment or information 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.

(o) The fact that any person charged with a violation of subsection (a), (b), (c), (d), (e) or (f) of this section, or any person permitted to drive as described under subsection (g) or (h) 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 subsection (a), (b), (c), (d), (e), (f), (g) or (h) of this section.

(p) For purposes of this section, the term "controlled substance" has the meaning ascribed to it in W. Va. Code, ch. 60-a.

(q) The sentences provided in this section upon conviction for a violation of this article are mandatory and are not subject to suspension or probation; provided, that the court may apply the provisions of W. Va. Code, ch. 62, art. 11-a, to a person sentenced or committed to a term of one year or less for a first offense under this section. An order for home detention by the court pursuant to the provisions of W. Va. Code, ch. 62, art. 11-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section for a first or subsequent offense; provided, however, that for any period of home incarceration ordered for a person convicted of second offense under this section, electronic monitoring shall be required for no fewer than five days of the total period of home confinement ordered and the offender may not leave home for those five days notwithstanding the provisions of W. Va. Code, ch. 62, art. 11-b, § 5; 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 no fewer than ten days of the total period of home confinement ordered and the offender may not leave home for those ten days notwithstanding W. Va. Code, ch. 62, art. 11-b, § 5.