§29-2A-11a Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer. - West Virginia Statutes

§29-2A-11a. Implied consent to test; administration at direction of law-enforcement officer; designation of type of test; definition of law-enforcement officer.

Any person who operates an aircraft in this state shall be deemed to have given his or her consent by the operation thereof to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood. A preliminary breath analysis may be administered in accordance with the provisions of section eleven-b of this article whenever a law-enforcement officer has reasonable cause to believe a person to have committed an offense prohibited by section eleven of this article. A secondary test of blood, breath or urine shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense prohibited by said section. The law-enforcement agency by which such law-enforcement officer is employed shall designate which one of the aforesaid secondary tests shall be administered: Provided, That if the test so designated is a blood test and the person so arrested refuses to submit to such blood test, then the law-enforcement officer making such arrest shall designate in lieu thereof either a breath or urine test to be administered.

For the purpose of this article, the term "law-enforcement officer" means and is limited to: (1) Any member of the division of public safety of this state; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; and (4) any conservation officer of the division of natural resources. If any municipality or the division of natural resources does not have available to its law-enforcement officers the testing equipment or facilities necessary to conduct any secondary test which a law-enforcement officer may administer under this article, any member of the West Virginia state police, the sheriff of the county wherein the arrest is made or any deputy of such sheriff or any municipal law-enforcement officer of another municipality within the county wherein the arrest is made may, upon the request of such arresting law-enforcement officer and in his or her presence, conduct such secondary test and the results of such test may be used in evidence to the same extent and in the same manner as if such test had been conducted by such arresting law-enforcement officer. Only the person actually administering or conducting such test shall be competent to testify as to the results and the veracity of such test.