HB 5406 — Relating to driving under the influence

WEST VIRGINIA LEGISLATURE REGULAR SESSION ENGROSSEDENROLLED House Bill 5406 ByBY DelegatesDELEGATES Akers,A Funkhouser,KERS, Kimble,UNKHOUSER Mallow,, Flanigan,KIMBL, Jennings,MALLOW Marple,, Shamblin,FLANIGAN, Zatezalo,ENNINGS Phillips,, andARPLE Heckert, [ByHAMBLIN, theATEZALO request, ofPHILLIP,AND theHECKERT Department(BY ofTHER HomelandEQUEST SecurityOF –THED WestEPARTMENT VirginiaOF StateHOMELAND Police]S [IntroducedECURITY– FebruaryW 10,ESTVIRGINIASTATE POLICE) [Passed March 12, 2026;

referredin toeffect the90 Committeedays onfrom thepassage Judiciary](June10, Eng2026)] Enr HB 5406 AAN BILLACT to amend and reenact §17C-5-4, §17C-5-5, §17C-5-6, §17C-5-6a, §17C-5-8, and §17C-5-§17C- 105-10 of the Code of West Virginia, 1931, as amended, relating to driving under the influence;

(c) A secondary test of blood or breath is incidental to a lawful arrest and is to be administered at the direction of the arresting law-enforcement officer having probable cause to EngEnr HB 5406 believe the person has committed an offense prohibited by §17C-5-2 of this code or by an ordinance of a municipality of this state which has the same elements as an offense described in said section:

(f) 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 West Virginia State Police Forensic Laboratory 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 arres:Provided,arrest is m:Provided, That the law-enforcement officer may conduct the test at the nearest available properly functioning secondary chemical testing device Eng HB 5406 located outside the Enr HB 5406 county in which the arrest was made, if:

(i) (1) For the purpose of this article, the term "law-enforcement officer" or "police officer" means:shall have the same meaning as the term "law-enforcement officer" is defined pursuant to §30- 29-1 of this code.

(A)(2) AnyIn memberaddition to standards promulgated by the Governor’s Committee on Crime, Delinquency, and Correction, pursuant to §30-29-3 of this code, governing the Westqualification Virginiaof Statelaw-enforcement Police;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.

(B)(3) anyIn sheriffaddition to standards promulgated by the Governor’s Committee on Crime, Delinquency, and anyCorrection, deputypursuant sheriffto §30-29-3 of anythis county;code, establishing standards governing Enr HB 5406 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.

(C) any member of a police department in any municipality as defined in §8-1-2 of this code;

(D) any Natural Resources police officer of the Division of Natural Resources;

and (E) any special police officer appointed by the Governor pursuant to the provisions of §61-3-41 of this code who has completed the course of instruction at a law-enforcement training academy as provided for under the provisions of §30-29-9 of this code shall have the same meaning as the term "law- enforcement officer" is defined pursuant to §30-29-1 of this code.

(2) In addition to standards promulgated by the Governor’s Committee on Crime, Delinquency, and Correction, pursuant to §30-29-3 of this code, governing the qualification of law-enforcement officers and the entry-level law-enforcement training curricula, the Governor’s Eng HB 5406 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 §30-29-3 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.

When a law-enforcement officer has reason to believe a person has committed an offense prohibited by section two of this article §17C-5-2 of this code or by an ordinance of a municipality of Eng HB 5406 this state which has the same elements as an offense described in said section two of this article §17C-5-2 of this code, the law-enforcement officer may require such person to submit to a preliminary breath analysis for the purpose of determining such person's blood alcohol content.

Any preliminary breath Enr HB 5406 analysis required under this section must be administered with a device and in a manner approved by the department of health West Virginia State Police Forensic Laboratory for that purpose.

Eng HB 5406 Upon the request of the person who is tested, full information concerning the test taken at the direction of the law-enforcement officer shall be made available to him or her.

No person who administers any such test upon the request of a law-enforcement officer as herein defined, no hospital in or with which such person is employed or is otherwise associated or in which such test is administered, and no other person, firm or corporation by whom or with which such person is Enr HB 5406 employed or is in any way associated, shall be in any way criminally liable for the administration of such test, or civilly liable in damages to the person tested unless for gross negligence or willful or wanton injuryinjury. §17C-5-6a.

§17C-5-6a.

The breath analysis must be administered as soon as possible after the law-law-enforcement enforcement officer arrives at a reasonable belief that the child has been driving a motor vehicle with any amount of alcohol in his or her blood.

Any preliminary breath analysis administered pursuant to this subsection must be administered with a device and in a manner approved by the division of health West Virginia State Police Forensic Laboratory for that purpose.

If a preliminary breath analysis is administered, the results shall be used solely for the purpose of guiding the officer in deciding whether the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of .0002 .02 of one percent or more, by weight, and should, therefore, be taken into custody to administer a secondary test in accordance with the provisions of this section.

If a preliminary breath analysis is Eng HB 5406 administered and the results of the analysis indicate that the child has an alcohol concentration in his or her blood of less than .0002 .02 of one percent, by weight, the child may not be taken into custody unless other grounds exist under §49-4-705(b) of this code.

Upon taking a child into custody pursuant to the provisions of this section, the official shall take all reasonable steps to Enr HB 5406 cause notification to be made to the child’s parent or custodian or, if the parent or custodian cannot be located, to a close relative.

(c) Upon taking a child into custody pursuant to this section, the official shall take the child to a facility where a secondary test of the child’s blood or urine may be administered at the direction of the official or a test of the child’s breath may be administered by the official.

The law-law-enforcement enforcement agency by which such law-enforcement official is employed shall designate whether the secondary test is a test of either blood breath, or urine or breath:

Notwithstanding the provisions of §17C-5-7 §17C-5-7a of this code, a refusal to submit to a blood test only shall not result in the revocation of the child’s license to operate a motor vehicle in this state.

Any child taken into custody pursuant to this section shall be given a written statement advising him or her that a refusal to submit to a secondary test of either blood breath, or urine or breath, as finally designated by the law-enforcementlaw- enforcement agency or official in accordance with this subsection, will result in the suspension of his or her license to operate a motor vehicle in this state for a period of at least 30 days or a revocation of the license for a period up to life.

Provided, That the breath test shall be administered in the Eng HB 5406 presence of the official who took the child into custody.

The qualified person administering the breath test must be a member of the West Virginia state police State Police, the sheriff of the county where the child was Enr HB 5406 taken into custody, or any deputy of the sheriff or a law-enforcement official of another municipality within the county wherein the child was taken into custody.

(f) If the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of .0008 .08 of one percent or less, by weight, and if the law-enforcement official does not have reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of §17C-5-2 of this code if the child were an adult, then the official shall release the child:

Provided, That if the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of .0002 .02 of one percent or more, by weight, the child shall only be released to a parent or custodian, or to some other responsible adult.

Eng HB 5406 §17C-5-8.

(a) Upon trial for the offense of driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs, or upon the trial of any civil or criminal action arising out of acts alleged to have been committed by any person driving a motor vehicle while Enr HB 5406 under the influence of alcohol, controlled substances or drugs, evidence of the amount of alcohol in the person's blood at the time of the arrest or of the acts alleged, as shown by a chemical analysis of his or her blood or breath, is admissible, if the sample or specimen was taken within the time period provided in subsection (g).

(1) Evidence that there was, at that time, five hundredths .05 of one percent or less, by weight, of alcohol in his or her blood, is prima facie evidence that the person was not under the influence of alcohol;

(2) Evidence that there was, at that time, more than five hundredths .05 of one percent and less than eight hundredths .08 of one percent, by weight, of alcohol in the person's blood is relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of alcohol;

(3) Evidence that there was, at that time, eight hundredths .08 of one percent or more, by weight, of alcohol in his or her blood, shall be admitted as prima facie evidence that the person was under the influence of alcohol.

(1) The number of grams of alcohol per one hundred 100 cubic centimeters of blood;

(2) The number of grams of alcohol per two hundred ten 210 liters of breath;

or (3) The number of grams of alcohol per eighty-six 86 milliliters of serum.

Eng HB 5406 (d) A chemical analysis of blood for the purpose of determining the controlled substance or drug concentration of a person's blood, must include, but is not limited to, the following drugs or classes of drugs:

Enr HB 5406 (5) Phencyclidine (PCP);