Committee pulls public-intoxication bill after questions on testing, disability impacts and qualified immunity

A Senate committee pulled House Bill 4466 from its agenda for further work after senators pressed counsel on how the substitute would establish intoxication from controlled substances, protections for people with disabilities and potential civil-liability for officers.

Counsel presented a strike-and-insert for the committee substitute that would amend the public-intoxication code to make intoxication "as used in this code section" include controlled substances as defined in West Virginia code. The substitute would add controlled-substance dependency education and counseling at a mental health center as an alternative-sentencing option for purposes of alternative sentencing, change the educational requirement for a second offense from 5 to 10 hours (compared with a 6-hour first-offense requirement), and remove language counsel said had been erroneously stricken from the current code. Counsel said there was no fiscal impact or second reference.

Senators asked how officers would determine whether observed impairment stemmed from a controlled substance, from a medical condition or from a legally prescribed medication. Counsel said, "It does not address testing anywhere in the bill," and that enforcement would be based in practice on observed conduct (slurred speech, aggressive behavior, incoherence) and local procedures; counsel added officers could seek a warrant for testing or go before a magistrate. The junior senator from the fifth related an incident in which a person the senator arrested was later found to have a brain tumor and said that civil suits can follow such arrests; counsel said a good-faith arrest would likely be covered by qualified immunity absent excessive force.

The senator from Jefferson raised concerns about autism and other conditions that can produce atypical behavior and asked about the burden of proof; counsel reiterated the state bears the burden and that voluntary breath or blood testing could be exonerating but the bill does not require testing. The senator from Marion asked whether the bill provides a safety valve for legally prescribed medications and noted federal civil-rights remedies under 42 U.S.C. § 1983; counsel said the bill does not contain an express safety valve for prescriptions and acknowledged evidentiary complexity in proving intoxication beyond a reasonable doubt.

Given the new questions engendered by the discussion, the chair said the committee would pull the bill from the agenda to work with staff and refine the measure before returning it to committee. With no further business, the committee adjourned.

Next steps: the bill will be revised by staff to address the raised issues before the committee considers it again.