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WEST virginia legislature
2017 regular session
Engrossed
for
By Senators Trump,
Blair and Maroney
[Originating in the Committee on
A BILL to amend and
reenact §17C-5-2, §17C-5-2b, §17C-5-4,
§17C-5-7 and §17C-5-12 of the Code of West Virginia, 1931, as
amended; to amend and reenact §17C-5A-1, §17C-5A-1a and §17C-5A-3
of said code; to amend said code by adding thereto two new sections, designated
§17C-5A-1b and §17C-5A-1c; to amend said code by adding thereto a new section,
designated §17C-5C-6; and to amend and
reenact §17C-19-3 of said code, all
relating generally to the procedures for drivers’ license suspensions and
revocations for driving under the influence of alcohol, controlled substances
or drugs; transferring authority for hearing matters related to suspensions or
revocations of drivers’ license for operating a motor vehicle while under the
influence of alcohol, controlled substances or drugs from the Office of
Administrative Hearings to courts; establishing mandatory revocation periods
for individuals convicted of driving under the influence; authorizing alternate
revocation period involving participation in Motor Vehicle Alcohol Test and Lock
Program for certain first offenses; establishing mandatory revocation periods
for individuals upon subsequent convictions for driving under the influence; directing
Commissioner of Division of Motor Vehicles to revoke driver’s license upon
conviction for driving under the influence; requiring individuals whose
driver’s licenses have been revoked upon conviction for driving under the
influence to complete comprehensive safety and treatment program before
driver’s license can be reinstated; prohibiting persons convicted of certain
felonies from participating in Motor Vehicle Alcohol Test and Lock Program;
permitting persons convicted of certain misdemeanors to participate in Motor
Vehicle Alcohol Test and Lock Program; requiring driver consent to requiring
participation in Motor Vehicle Alcohol Test and Lock Program; requiring any
period of revocation imposed pursuant to a conviction begin once any period of
incarceration has been served; making individuals who are found guilty of
driving under the influence ineligible for deferral of further proceedings upon
condition of participation in Motor Vehicle Alcohol Test and Lock Program; requiring
deferral program to be completed within one year; prohibiting secondary test of
blood without issuance of warrant signed by a magistrate or circuit judge; authorizing
secondary test of blood with written consent; requiring that individual
arrested for driving under the influence be advised verbally of certain
consequences for refusal to submit to secondary chemical test; requiring that
individual arrested for driving under the influence be given written statement
informing the individual of legal consequences of taking or refusing to submit
to secondary chemical test and informing the individual of right to receive
secondary blood test; requiring arresting officer to wait fifteen minutes
before refusal considered final; requiring that, following an individual’s
refusal to submit to secondary chemical test, an arresting officer execute a
signed statement that the officer administered all required warnings; directing
officer to submit copy of written statement to Commissioner of Division of
Motor Vehicles and court having jurisdiction over charges filed against the
individual; eliminating all statutory provisions authorizing or requiring the
Commissioner of the Division of Motor Vehicles to take administrative action
upon an individual’s driver’s license on the basis of a driving under the
influence arrest absent direction from court; directing Bureau for Public
Health to prepare report for Joint Committee on Government and Finance related
to minimum levels of drugs and controlled substances to be admitted as prima
facie evidence of driving under the influence and minimum levels that
laboratories can reliably identify and measure in blood; limiting
administrative jurisdiction of Division of Motor Vehicles and Office of
Administrative Hearings to offenses occurring on or before June 30, 2017;
providing that administrative hearings relating to refusal to undergo a
secondary chemical test does not apply to offenses occurring on or after July
1, 2017; eliminating requirement for an order entered by the Division of Motor
Vehicles revoking a driver’s license to advise of procedures for requesting
administrative hearing when the offense is driving under the influence;
limiting the right of individuals to challenge suspension or revocation of
driver’s licenses to the issue of mistaken identity; requiring the commissioner
to take corrective action if a driver’s license is incorrectly suspended or
revoked based on mistaken identity; providing that plea of no contest
constitutes a conviction; requiring pretrial suspension of driver’s license if
individual refuses to submit to secondary chemical test; permitting pretrial
suspension of driver’s license by court under certain circumstances;
establishing right to request and receive hearing of suspension orders pending
criminal proceedings in court where case is pending; setting time limits for
defendant to request hearing and for hearing to be held; requiring the clerk of
a court to transmit a copy of an order suspending or revoking a driver’s
license and any surrendered license to the Division of Motor Vehicles;
providing terms and length of pretrial license suspension; giving persons
convicted of driving under the influence credit for pretrial suspension time against
period of revocation imposed; authorizing court to modify pretrial suspension
of driver’s license; providing that any period of modified pretrial driver’s
license suspension is not credited against future period of revocation imposed;
establishing the scope of review for judicial review of pretrial driver’s
license suspension for refusal to submit to secondary chemical test; directing
clerk of court to forward orders on refusal hearings to Division of Motor
Vehicles; providing that finding of driver refusal is final if no hearing
requested; prescribing periods of revocation for Commissioner of Division of
Motor Vehicles to impose upon receipt of court order on refusal; directing copy
of revocation order to be sent to person by certified mail; specifying contents
of order; providing that revocation for refusal run concurrently with other
revocation imposed as a result of same incident that led to refusal; making
persons convicted of driving under the influence eligible for participation in
comprehensive safety and treatment program and related reductions in length of
revocation for successful completion thereof; establishing procedures and
timeline for the Office of Administrative Hearings to transfer jurisdiction of certain
driver’s license suspension and revocation matters to the courts; establishing
timeline for OAH to transfer jurisdiction of certain driver’s license
suspension and revocation matters to Division of Motor Vehicles; directing
arresting officer to request, and driver to surrender, driver’s license upon
arrest for driving under the influence; eliminating obsolete language; and
making technical corrections.
Be it enacted by the
Legislature of West Virginia:
That §17C-5-2, §17C-5-2b,
§17C-5-4, §17C-5-7 and §17C-5-12 of the
Code of West Virginia, 1931, as amended, be amended and reenacted; that §17C-5A-1, §17C-5A-1a
and §17C-5A-3 of said code be amended and
reenacted; that said code be amended by adding thereto two new sections,
designated §17C-5A-1b and §17C-5A-1c; that said code be amended by adding thereto
a new section, designated §17C-5C-6; and
that §17C-19-3 be amended and reenacted,
all to read as follows:
ARTICLE 5. SERIOUS
TRAFFIC OFFENSES.
§17C-5-2. Driving under
influence of alcohol, controlled substances or drugs; penalties.
(a) Definitions. —
(1) “Impaired state” means
a person:
(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 or inhalant substance;
(D) Is under the combined
influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol
concentration in his or her blood of eight hundredths of one percent or more,
by weight.
(2) “Bodily injury” means
injury that causes substantial physical pain, illness or any impairment of
physical condition.
(3) “Serious bodily injury”
means bodily injury that creates a substantial risk of death, that causes
serious or prolonged disfigurement, prolonged impairment of health or prolonged
loss or impairment of the function of any bodily organ.
(b) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes the death of any person is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility
for not less than three nor more than fifteen years, and shall be fined
not less than $1,000 nor more than $3,000, and shall have his or her
driver’s license revoked by the Commissioner of the Division of Motor Vehicles for
a period of ten years: Provided, That any death charged under this
subsection must occur within one year of the offense: Provided, however, That if the person has previously been
convicted under the provisions of this subsection or subsection (c) or (d) of this
section, then the person shall have his or her driver’s license revoked by the Commissioner
of the Division of Motor Vehicles for life.
(c) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes serious bodily injury to any person other than himself
or herself, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two nor more than
ten years, and shall be fined not less than $1,000 nor more than $3,000,
and shall have his or her driver’s license revoked by the Commissioner of
the Division of Motor Vehicles for a period of five years: Provided, That if the person has previously been convicted under
the provisions of this section or subsection (b) or (d) of this section, then
the person shall have his or her driver’s license revoked by the Commissioner
of the Division of Motor Vehicles for life.
(d) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes a bodily injury to any person other than himself or
herself, 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, and
shall be fined not less than $200 nor more than $1,000, and shall have his
or her driver’s license revoked by the Commissioner of the Division of Motor
Vehicles for a period of two years: Provided, That such jail term
shall include actual confinement of not less than twenty-four hours: Provided,
however, That a person sentenced pursuant to this subsection shall receive
credit for any period of actual confinement he or she served upon arrest for
the subject offense: Provided further,
That if the person has previously been convicted under the provisions of this
section or subsection (b) or (c) of this section, then the person shall have
his or her driver’s license revoked by the Commissioner of the Division of
Motor Vehicles for life.
(e) Any person who drives a
vehicle in this state: (i) While he or she is in an impaired state; or (ii) while he or she is
in an impaired state but has an alcohol concentration in his or her blood
of 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 nor more than $500, and
shall have his or her driver’s license revoked by the Commissioner of the
Division of Motor Vehicles for a period of six months or a period of fifteen
days with an additional one hundred twenty days of participation in the Motor
Vehicle Alcohol Test and Lock Program in accordance with the provisions of
section three-a, article five-a of this chapter: Provided, That a
person sentenced pursuant to this subsection shall receive credit for any
period of actual confinement he or she served upon arrest for the subject
offense.
(f) Any person who drives a
vehicle in this state while he or she has an alcohol concentration in his or
her 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 twenty-four hours, and shall be
fined not less than $200 nor more than $1,000, and shall have his or her
driver’s license revoked by the Commissioner of the Division of Motor Vehicles for
a period of one year or for a period of forty-five days with an additional two
hundred seventy days of participation in the Motor Vehicle Alcohol Test and
Lock Program in accordance with the provisions of section three-a, article
five-a of this chapter. A person sentenced pursuant to this subdivision
subsection shall receive credit for any period of actual confinement he
or she served upon arrest for the subject offense.
(g) Any person who, being a
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
twenty-four hours, and shall be fined not less than $100 nor more than
$500, and shall have his or her driver’s license revoked by the Commissioner
of the Division of Motor Vehicles for a period of six months. A person
sentenced pursuant to this subdivision subsection shall receive
credit for any period of actual confinement he or she served upon arrest for
the subject offense.
(h) Any person who
knowingly permits his or her vehicle to be driven in this state by any other
person who is in an impaired state 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 nor more than $500, and shall have his or
her driver’s license revoked by the Commissioner of the Division of Motor
Vehicles for a period of six months or a period of fifteen days with an
additional one hundred twenty days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter.
(i) Any person who
knowingly permits his or her vehicle to be driven in this state by any other
person who is a 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 nor more than $500, and shall have his or her
driver’s license revoked by the Commissioner of the Division of Motor Vehicles for
a period of six months.
(j) Any person under the
age of twenty-one years who drives a vehicle in this state while he or she has
an alcohol concentration in his or her 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 nor more than $100 and
have his or her driver’s license suspended by the Commissioner of the Division
of Motor Vehicles for a period of sixty days. 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 twenty-four hours, and
shall be fined not less than $100 nor more than $500, and shall have his or
her driver’s license revoked by the Commissioner of the Division of Motor
Vehicles for a period of one year or until the person’s twenty-first birthday,
whichever period is longer. 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 section three-a, article
five-a of this chapter. 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
(b), (c), (d), (e), (f), (g), (h) or (i) of this section may not also be
charged with an offense under this subsection arising out of the same
transaction or occurrence.
(k) Any person who drives a
vehicle in this state while he or she is in an impaired state and has within
the vehicle one or more other persons who are unemancipated minors who have not
yet reached their sixteenth birthday is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than two days nor
more than twelve months, and shall be fined not less than $200 nor more
than $1,000, and shall have his or her driver’s license revoked by the Commissioner
of the Division of Motor Vehicles for a period of one year: Provided,
That such jail term shall include actual confinement of not less than
forty-eight hours: Provided, however, That a person sentenced pursuant
to this subsection shall receive credit for any period of actual confinement he
or she served upon arrest for the subject offense: Provided further, That if the person has previously been
convicted under the provisions of this section, then the person shall have his
or her driver’s license revoked by the Commissioner of the Division of Motor
Vehicles for a period of ten years: And
provided further, That if the person has previously been convicted under
the provisions of this section on two or more occasions, then the person shall
have his or her driver’s license revoked by the Commissioner of the Division of
Motor Vehicles for life.
(l) A person violating any
provision of subsection (d), (e), (f), (g), (h) or (j) (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, shall have his or her driver’s
license revoked by the Commissioner of the Division of Motor Vehicles for a
period of ten years, and the court may, in its discretion, impose a fine of
not less than $1,000 nor more than $3,000.
(m) A person violating any
provision of subsection (d), (e), (f), (g), (h) or (j) (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 two nor more than five years, shall
have his or her driver’s license revoked by the Commissioner of the Division of
Motor Vehicles for life, and the court may, in its discretion, impose a
fine of not less than $3,000 nor more than $5,000.
(n) For purposes of
subsections (l) and (m) of this section relating to second, third and
subsequent offenses, the following events shall be regarded as offenses under
this section:
(1) Any conviction under
the provisions of subsection (b), (c), (d), (e), (f), (g) or (h) 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 (b), (c), (d), (e), (f), (g), (h) or (i) of
this section, which offense occurred within the ten-year period immediately
preceding the date of arrest in the current proceeding; and
(3) Any period of
conditional probation imposed pursuant section two-b of this article for
violation of subsection (e) of this section, which violation occurred within
the ten-year period immediately preceding the date of arrest in the current
proceeding.
(o) 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, or the person
has previously had a period of conditional probation imposed pursuant to
section two-b of this article.
(p) The fact that any
person charged with a violation of subsection (b), (c), (d), (e), (f) or (g) of
this section, or any person permitted to drive as described under subsection (h)
or (i) 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 (b), (c), (d), (e), (f), (g), (h) or (i) of this
section.
(q) For purposes of this
section, the term “controlled substance” has the meaning ascribed to it in
chapter sixty-a of this code.
(r) 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 article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for a first
offense under this section: Provided, however, That the court may impose
a term of conditional probation pursuant to section two-b of this article to
persons adjudicated thereunder. An order for home detention by the court
pursuant to the provisions of article eleven-b, chapter sixty-two of this code
may be used as an alternative sentence to any period of incarceration required
by this section for a first or subsequent offense: Provided, further,
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 section five, article eleven-b, chapter sixty-two of this code: And 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 section five, article eleven-b, chapter sixty-two of this code.
(s) A person whose
driver’s license has been revoked by the Commissioner of the Division of Motor
Vehicles pursuant to this section must complete a comprehensive safety and
treatment program as set forth in section three, article five-a of this chapter
before his or her driver’s license can be reinstated.
(t) No person convicted
of a felony offense under this section shall be eligible for participation in
the Motor Vehicle Alcohol Test and Lock Program as described in section
three-a, article five-a of this chapter. Any person who is convicted of a
misdemeanor offense is eligible for participation in the Motor Vehicle Alcohol
Test and Lock Program as described in section three-a, article five-a of this
chapter.
(u) For any offense for
which an alternative revocation period is permitted conditioned upon participation
in the Motor Vehicle Alcohol Test and Lock Program, no such alternative
sentence may be imposed without the consent of the driver.
(v) Any period of
revocation imposed by the Commissioner of the Division of Motor Vehicles pursuant
to the provisions of this section shall begin only after any period of
incarceration has been completed.
§17C-5-2b. Deferral of
further proceedings for certain first offenses upon condition of participation
in Motor Vehicle Alcohol Test and Lock Program; procedure on charge of
violation of conditions.
(a) Except as provided in
subsection (g) of this section, whenever any person who has not previously been
convicted of any offense under this article or under any statute of the United
States or of any state relating to driving under the influence of alcohol, any
controlled substance or any other drug:
(1) Notifies the court
within thirty days of his or her arrest of his or her intention to participate
in a deferral pursuant to this section; and
(2) Pleads guilty to or
is found guilty of driving under the influence of alcohol under subsection
(e), section two of this article, the court, without entering a judgment of
guilt and with the consent of the accused, shall defer further proceedings and,
notwithstanding any provisions of this code to the contrary, place him or her
on probation, which conditions shall include that he or she successfully
completes the Motor Vehicle Alcohol Test and Lock Program as provided in
section three-a, article five-a of this chapter. Participation therein shall be
for a period of at least one hundred sixty-five days after he or she has served
the fifteen days of license suspension imposed pursuant to section two, article
five-a of this chapter, and shall be completed within one year.
(b) A defendant’s
election to participate in deferral under this section shall constitute a
waiver of his or her right to an administrative hearing as provided in section
two, article five-a of this chapter.
(c) (b) (1) If the prosecuting attorney files a
motion alleging that the defendant during the period of the Motor Vehicle
Alcohol Test and Lock Program has been removed therefrom by the Division of
Motor Vehicles, or has failed to successfully complete the program before
making a motion for dismissal pursuant to subsection (d) of this section, the
court may issue such process as is necessary to bring the defendant before the
court.
(2) A motion alleging such
violation filed pursuant to subdivision (1) of this subsection must be filed
during the period of the Motor Vehicle Alcohol Test and Lock Program or, if
filed thereafter, must be filed within a reasonable time after the alleged
violation was committed.
(3) When the defendant is
brought before the court, the court shall afford the defendant an opportunity
to be heard. If the court finds that the defendant has been rightfully removed
from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor
Vehicles, the court may order, when appropriate, that the deferral be
terminated, and thereupon enter an adjudication of guilt and proceed as
otherwise provided.
(4) Should the defendant
fail to complete or be removed from the Motor Vehicle Alcohol Test and Lock
Program, the defendant waives the appropriate statute of limitations and the
defendant’s right to a speedy trial under any applicable federal or state
constitutional provisions, statutes or rules of court during the period of
enrollment in the program.
(d) (c) When the defendant shall have completed
satisfactorily the Motor Vehicle Alcohol Test and Lock Program and complied
with its conditions, the defendant may move the court for an order dismissing
the charges. This motion shall be supported by affidavit of the defendant and
by certification of the Division of Motor Vehicles that the defendant has
successfully completed the Motor Vehicle Alcohol Test and Lock Program. A copy
of the motion shall be served on the prosecuting attorney who shall within
thirty days after service advise the judge of any objections to the motion,
serving a copy of such objections on the defendant or the defendant’s attorney.
If there are no objections filed within the thirty-day period, the court shall
thereafter dismiss the charges against the defendant. If there are objections
filed with regard to the dismissal of charges, the court shall proceed as set
forth in subsection (c) of this section.
(e) (d) Except as provided herein, unless a
defendant adjudicated pursuant to this subsection be convicted of a subsequent
violation of this article, discharge and dismissal under this section shall be
without adjudication of guilt and is not a conviction for purposes of
disqualifications or disabilities imposed by law upon conviction of a crime
except for those provided in article five-a of this chapter. Except as provided
in subsections (k), (l), (m) and (n), section two of this article regarding
subsequent offenses, the effect of the dismissal and discharge shall be to
restore the person in contemplation of law to the status he or she occupied
prior to arrest and trial. No person as to whom a dismissal and discharge have
been effected shall be thereafter held to be guilty of perjury, false swearing
or otherwise giving a false statement by reason of his or her failure to
disclose or acknowledge his or her arrest or trial in response to any inquiry
made of him or her for any purpose other than any inquiry made in connection
with any subsequent offense as that term is defined in subsection (n), section
two of this article.
(f) (e) There may be only one discharge and
dismissal under this section with respect to any person.
(g) (f) No person shall be eligible for dismissal
and discharge under this section: (1) In any prosecution in which any violation
of any other provision of this article has been charged; (2) if the person
holds a commercial driver’s license or operates commercial motor vehicles; (3) if
the person has previously had his or her driver's license revoked under section two-a of this article or
under any statute of the United States or of any state relating to driving
under the influence of alcohol, any controlled substance or any other drug; or
(4) if the person refused the secondary chemical test pursuant to section seven
of this article.
(h) (g) (1) After a period of not less than one
year which shall begin to run immediately upon the expiration of a term of
probation imposed upon any person under this section, the person may apply to
the court for an order to expunge from all official records all recordations of
his or her arrest, trial and conviction, pursuant to this section except for
those maintained by the Division of Motor Vehicles: Provided, That any
person who has previously been convicted of a felony may not make a motion for
expungement pursuant to this section.
(2) If the prosecuting
attorney objects to the expungement, the objections shall be filed with the
court within thirty days after service of a motion for expungement and copies
of the objections shall be served on the defendant or the defendant’s attorney.
(3) If the objections are
filed, the court shall hold a hearing on the objections, affording all parties
an opportunity to be heard. If the court determines after a hearing that the
person during the period of his or her probation and during the period of time
prior to his or her application to the court under this subsection has not been
guilty of any serious or repeated violation of the conditions of his or her
probation, it shall order the expungement.
(i) (h)
Notwithstanding any provision of this code to the contrary, any person
prosecuted for a violation of subsection (e), section two of this article whose
case is disposed of pursuant to the provisions of this section shall be liable
for any court costs assessable against a person convicted of a violation of
subsection (k), section two of this article. Payment of such costs may be made
a condition of probation. The costs assessed pursuant to this subsection,
whether as a term of probation or not, shall be distributed as other court
costs in accordance with section two, article three, chapter fifty; section
four, article two-a, chapter fourteen; section four, article twenty-nine, chapter
thirty; and sections two, seven and ten, article five, chapter sixty-two of
this code.
§17C-5-4. Implied
consent to test; administration at direction of law-enforcement officer;
designation of type of test; definition of law-enforcement officer.
(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 concentration in the person’s
body of a controlled substance, drug or any combination thereof.
(b) A preliminary breath
analysis may be administered in accordance with the provisions of section five
of this article whenever a law-enforcement officer has reasonable cause to
believe a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which has the same
elements as an offense described in section two of this article.
(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
believe the person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which has the same
elements as an offense described in said section: Provided, That absent written consent of the person, no
secondary test of blood may be performed without issuance of a warrant signed
by a magistrate or a circuit judge.
(d) The law-enforcement
agency that employs the arresting law-enforcement officer shall designate the
secondary tests to be administered. Notwithstanding the provisions of section
seven of this article, the refusal to submit to a blood test only may not
result in the revocation of the arrested person’s license to operate a motor
vehicle in this state.
(e) Any person to whom a preliminary breath
test is administered who is arrested shall be advised verbally that his or
her refusal to submit to a secondary chemical test will result in suspension of
his or her license to operate a motor vehicle while any criminal charges are
pending brought pursuant to section two of this article or an ordinance of a
municipality of this state which has the same elements as an offense described in
said section, and given a written statement advising him or her that his
or her refusal to submit to the secondary chemical test pursuant to subsection
(d) of this section will result in the revocation of his or her license to
operate a motor 'vehicle in this state for a period of at least forty-five days
and up to life of the following:
(1) That a person’s
refusal to submit to a secondary chemical test pursuant to subsection (d) of
this section will result in the suspension of his or her license to operate a
motor vehicle during the pendency of any criminal charges brought alleging a
violation of section two of this article or an ordinance of a municipality of
this state which has the same elements as an offense described in said section;
(2) That a person’s
refusal to submit to the secondary chemical test pursuant to subsection (d) of
this section will result in the revocation of his or her license to operate a
motor vehicle for a period of at least forty-five days and up to life;
(3) That, if a test is
taken, the results of the test may be used against him or her in court as
evidence of violating section two of this article or an ordinance of a
municipality of this state which has the same elements as an offense described
in said section; and
(4) That, if the person
first submits to the requested secondary chemical test, the person has the
right to have a test or tests of his or her blood performed as provided in
section nine of this article.
(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 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 arrest is made: Provided, That the
law-enforcement officer may conduct the test at the nearest available properly
functioning secondary chemical testing device located outside the county in
which the arrest was made, if: (i) There is no properly functioning secondary
chemical testing device located within the county the arrest was made; or (ii)
there is no magistrate available within the county the arrest was made for the
arraignment of the person arrested. A law-enforcement officer who is directing
that a secondary chemical test be conducted has the authority to transport the
person arrested to where the secondary chemical testing device is located.
(g) If the arresting
officer lacks proper training in the administration of a secondary chemical
test, then any other law-enforcement officer who has received training in the
administration of the secondary chemical test to be administered may, upon the
request of the arresting law-enforcement officer and in his or her presence,
conduct the secondary test. The results of a test conducted pursuant to this
subsection may be used in evidence to the same extent and in the same manner as
if the test had been conducted by the arresting law-enforcement officer.
(h) Only the person
actually administering or conducting a test conducted pursuant to this article
is competent to testify as to the results and the veracity of the test.
(I) (i) (1) For the purpose of this article, the term
“law-enforcement officer” or “police officer” means: (A) Any member of the West
Virginia State Police; (B) any sheriff and any deputy sheriff of any county; (C)
any member of a police department in any municipality as defined in section
two, article one, chapter eight 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 section
forty-one, article three, chapter sixty-one of this code who has completed the
course of instruction at a law-enforcement training academy as provided for
under the provisions of section nine, article twenty-nine, chapter thirty of
this code.
(2) In addition to
standards promulgated by the Governor’s Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty of
this code, governing the qualification of law-enforcement 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.
(3) In addition to
standards promulgated by the Governor’s Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty 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.
(4) That after December
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 subdivision (2) or (3) of this subsection, may no longer
require any person to submit to secondary chemical test of his or her blood for
the purposes of determining the concentration in the person’s body of a
controlled substance, drug or any combination thereof.
(j) A law-enforcement
officer who has reasonable cause to believe that a person has committed an
offense prohibited by section eighteen, article seven, chapter twenty of this
code, relating to the operation of a motorboat, jet ski or other motorized
vessel, shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and incidental to a
lawful arrest, a secondary chemical test of the accused person’s blood or
breath to determine the alcohol concentration in his or her blood, or the
concentration in the person’s body of a controlled substance, drug or any
combination thereof.
§17C-5-7. Refusal to
submit to tests; revocation of license or privilege; consent not withdrawn if
person arrested is incapable of refusal; hearing.
(a) If any person under
arrest as specified in section four of this article refuses to submit to any
secondary chemical test, the tests shall not be given: Provided, That
prior to the refusal, the person is given an oral warning and a written
statement advising him or her that containing the warnings set forth
in subsection (e), section four of this article, and a verbal warning that
his or her refusal to submit to the secondary test finally designated will
result in the revocation suspension of his or her license to
operate a motor vehicle in this state for a period of at least forty-five
days and up to life during the pendency of any criminal charge brought
pursuant to section two of this article or an ordinance of a municipality of
this state which has the same elements as an offense described in said section.
and that after After fifteen minutes following the receipt of
these warnings by the person under arrest, the refusal is considered
final. The arresting officer after that period of time expires has no further
duty to provide the person with an opportunity to take the secondary test.
(b) The officer shall, within forty-eight hours of the
refusal, sign and submit to the Commissioner of the Division of Motor Vehicles and
the court having jurisdiction over the charge filed against the person pursuant
to section two of this article a written statement of the officer that: (1)
He or she had probable cause to believe the person had been driving a motor
vehicle in this state while under the influence of alcohol, controlled
substances or drugs; (2) the person was lawfully placed under arrest for an
offense relating to driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or drugs; (3) the person refused to
submit to the secondary chemical test finally designated in the manner provided
in section four of this article; and (4) the person was given a written
statement advising him or her that containing the warnings contained in subsection (e),
section four of this article, and a verbal warning that his or her refusal to
submit to the secondary test finally designated will result in the suspension of his or her license to operate a motor vehicle in this
state would be revoked for a period of at least forty-five days and up to
life if he or she refused to submit to the secondary test finally designated in
the manner provided in section four of this article during the pendency
of any criminal charge brought pursuant to section two of this article or an
ordinance of a municipality of this state which has the same elements as an
offense described in said section. The signing of the statement required to
be signed by this section constitutes an oath or affirmation by the person
signing the statement that the statements contained in the statement are true
and that any copy filed is a true copy. The statement shall contain upon its
face a warning to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing, material or not
material, is false swearing and is a misdemeanor. Upon receiving the
statement the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state for
the period prescribed by this section
For
the first refusal to submit to the designated secondary chemical test, the
commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state for
a period of one year or forty-five days, with an additional one year of
participation in the Motor Vehicle Alcohol Test and Lock Program in accordance
with the provisions of section three-a, article five-a of this chapter: Provided,
That a person revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program. The
application for participation in the Motor Vehicle Alcohol Test and Lock
Program shall be considered to be a waiver of the hearing provided in section
two of said article. If the person's
license has previously been revoked under the provisions of this section, the
commissioner shall, for the refusal to submit to the designated secondary
chemical test, make and enter an order revoking the person's license to operate a motor vehicle in this state for
a period of ten years: Provided, however, That the license may be
reissued in five years in accordance with the provisions of section three,
article five-a of this chapter. If the person's license has previously been revoked more than once
under the provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter an order
revoking the person's license to
operate a motor vehicle in this state for a period of life. A copy of each
order shall be forwarded to the person by registered or certified mail, return
receipt requested, and shall contain the reasons for the revocation and shall
specify the revocation period imposed pursuant to this section. A revocation
shall not become effective until ten days after receipt of the copy of the
order.
(c)
Any person who is unconscious or who
is otherwise in a condition rendering him or her incapable of refusal shall be
considered not to have withdrawn his or her consent for a test of his or her
blood or breath as provided in section four of this article and the test may be
administered although the person is not informed that his or her failure to
submit to the test will result in the revocation of his or her license to
operate a motor vehicle in this state for the period provided for in this
section. A revocation under this section shall run concurrently with the
period of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which gave rise to
the arrest for driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs and the subsequent refusal to undergo the test
finally designated in accordance with the provisions of section four of this article.
(b) For the purposes of
this section, where reference is made to previous suspensions or revocations
under this section, the following types of suspensions or revocations shall
also be regarded as suspensions or revocations under this section:
(1) Any suspension or
revocation on the basis of a conviction under a municipal ordinance of another
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 section two of this
article for conduct which occurred on or after June 10, 1983; and
(2) Any revocation under
the provisions of section one or two, article five-a of this chapter for
conduct which occurred on or after June 10, 1983.
(c) A person whose
license to operate a motor vehicle in this state has been revoked shall be
afforded an opportunity to be heard, in accordance with the provisions of
section two, article five-a of this chapter.
(d) The refusal to
submit to a blood test may be admissible at the courts discretion in a trial
for the offense of driving a motor vehicle in this state while under the
influence of alcohol a controlled substance or drug or the combination of
alcohol and drugs.
§17C-5-12. Report to the Legislature.
On or before December 31, 2013 2017, the
Bureau for Public Health shall submit to the Joint Committee on Government and
Finance a report that includes the following:
(1) Recommendations for the minimum levels of those drugs or controlled substances contained in subsection (d), section eight of this article, that must be present in a person’s blood in order for the test to be admitted as prima facie evidence that the person was under the influence of a controlled substance or drug in a prosecution for the offense of driving a motor vehicle in this state; and
(2) Recommendations for the minimum levels of those drugs
or controlled substances contained in subsection (d), section eight of this
article, that laboratories approved to test blood for drug or controlled
substance content can reliably identify and measure for the concentrations of
drugs, controlled substances and their metabolites, in blood.
ARTICLE 5A.
ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING
UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1. Implied
consent to administrative procedure; revocation for driving under the influence
of alcohol, controlled substances or drugs or refusal to submit to secondary
chemical test.
(a) Any person who is
licensed to operate a motor vehicle in this state and who drives a motor
vehicle in this state shall be deemed to have given his or her consent by the
operation thereof, subject to the provisions of this article, to the procedure
set forth in this article for the determination of whether his or her license
to operate a motor vehicle in this state should be revoked because he or she
did drive a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or combined influence of alcohol or controlled substances
or drugs, or did drive a motor vehicle while having an alcohol concentration in
his or her blood of eight hundredths of one percent or more, by weight, or did
refuse to submit to any secondary chemical test required under the provisions
of article five of this chapter or did drive a motor vehicle while under the
age of twenty-one years with an alcohol concentration in his or her blood of
two hundredths of one percent or more, by weight, but less than eight hundredths
of one percent, by weight: Provided,
That the provisions of this subsection do not apply to offenses occurring on or
after July 1, 2017.
(b) Any law-enforcement
officer investigating a person for an offense described in section two, article
five of this chapter occurring on or before June 30, 2017, or for an
offense described in a municipal ordinance which has the same elements as an
offense described in said section occurring on or before June 30, 2017,
shall report to the Commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours of the conclusion of the investigation the
name and address of the person believed to have committed the offense. The
report shall include the specific offense with which the person is charged and,
if applicable, a copy of the results of any secondary tests of blood, breath or
urine. The signing of the statement required to be signed by this subsection
constitutes an oath or affirmation by the person signing the statement that the
statements contained in the statement are true and that any copy filed is a
true copy. The statement shall contain upon its face a warning to the officer
signing that to willfully sign a statement containing false information
concerning any matter or thing, material or not material, is false swearing and
is a misdemeanor.
(c) If, upon examination of
the written statement of the officer and the tests’ results described in
subsection (b) of this section, the commissioner determines that a person
committed an offense described in section two, article five of this chapter or
an offense described in a municipal ordinance which has the same elements as an
offense described in said section and that the results of any secondary test or
tests indicate that at the time the test or tests were administered the person
had, in his or her blood, an alcohol concentration of eight hundredths of one
percent or more, by weight, or at the time the person committed the offense he
or she was under the influence of alcohol, controlled substances or drugs, the
commissioner shall make and enter an order revoking or suspending the person’s
license to operate a motor vehicle in this state. If the results of the tests
indicate that at the time the test or tests were administered the person was under
the age of twenty-one years and had an alcohol concentration in his or her
blood of two hundredths of one percent or more, by weight, but less than eight
hundredths of one percent, by weight, the commissioner shall make and enter an
order suspending the person’s license to operate a motor vehicle in this state.
A copy of the order shall be forwarded to the person by registered or certified
mail, return receipt requested, and shall contain the reasons for the
revocation or suspension and describe the applicable revocation or suspension
periods provided in section two of this article. A revocation or suspension
shall not become effective until ten days after receipt of a copy of the order.
(d) Any law-enforcement
officer taking a child into custody under the provisions of section six-a,
article five of this chapter on or before June 30, 2017, who has
reasonable cause to believe that the child, at the time of driving the motor
vehicle, had an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, or that the act of the child in driving the
motor vehicle was such that it would provide grounds for arrest for an offense
defined under the provisions of section two of said article if the child were
an adult, shall report to the Commissioner of the Division of Motor Vehicles by
written statement within forty-eight hours the name and address of the child.
(e) If applicable, the
report described in subsection (d) of this section shall include a
description of the specific offense with which the child could have been
charged if the child were an adult and a copy of the results of any secondary
tests of blood, breath or urine. The signing of the statement required to be
signed by this subsection constitutes an oath or affirmation by the person
signing the statement that the statements contained in the statement are true
and that any copy filed is a true copy. The statement shall contain upon its
face a warning to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing, material or not
material, is false swearing and is a misdemeanor.
(f) Upon examination of the
written statement of the officer and any test results described in subsection
(d) of this section, if the commissioner determines that the results of the
test indicate that at the time the test or tests were administered the child
had, in his or her blood, an alcohol concentration of two hundredths of one
percent or more, by weight, but also determines that the act of the child in
driving the motor vehicle was not such that it would provide grounds for arrest
for an offense defined under the provisions of subsection (a), (b), (c), (d),
(e), (f), (g) or (h), section two, article five of this chapter if the child were
an adult, the commissioner shall make and enter an order suspending the child’s
license to operate a motor vehicle in this state. If the commissioner
determines that the act of the child in driving the motor vehicle was such that
it would provide grounds for arrest for an offense defined under the provisions
of said subsections if the child were an adult, the commissioner shall make and
enter an order revoking the child’s license to operate a motor vehicle in this
state. A copy of the order shall be forwarded to the child by registered or
certified mail, return receipt requested, and shall contain the reasons for the
suspension or revocation and describe the applicable suspension or revocation
periods provided for in section two of this article. A suspension or revocation
shall not become effective until ten days after receipt of a copy of the order.
§17C-5A-1a. Revocation
upon conviction for driving under the influence of alcohol, controlled
substances or drugs.
(a) If a person has a term
of conditional probation imposed pursuant to section two-b, article five of
this chapter, or is convicted for an offense defined in section two of said
article or for an offense described in a municipal ordinance which has the same
elements as an offense described in said section because the person did drive a
motor vehicle while under the influence of alcohol, controlled substances or
drugs, or the combined influence of alcohol or controlled substances or drugs,
or did drive a motor vehicle while having an alcohol concentration in his or
her blood of eight hundredths of one percent or more, by weight, or did drive a
motor vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight, and if the
person does not act to appeal the conviction within the time periods described
in subsection (b) of this section, the person’s license to operate a motor
vehicle in this state shall be revoked or suspended in accordance with the
provisions of this section.
(b) The clerk of the court
in which a person has had a term of conditional probation imposed pursuant to
section two-b, article five of this chapter, or is convicted for an offense
described in section two of said article or for an offense described in a
municipal ordinance which has the same elements as an offense described in said
section shall forward to the Commissioner of the Division of Motor Vehicles
a transcript of the judgment of conviction. If the conviction is the judgment
of a magistrate court, the magistrate court clerk shall forward the transcript
when the person convicted has not requested an appeal within twenty days of the
sentencing for such conviction. If the term of conditional probation is the act
of a magistrate court, the magistrate court clerk shall forward the transcript
when the order imposing the term of conditional probation is entered. If the
conviction is the judgment of a mayor or police court judge or municipal court
judge, the clerk or recorder shall forward the transcript when the person
convicted has not perfected an appeal within ten days from and after the date
upon which the sentence is imposed. If the conviction is the judgment of a
circuit court, the circuit clerk shall forward the transcript when the person
convicted has not filed a notice of intent to file a petition for appeal or
writ of error within thirty days after the judgment was entered.
(c) If, upon examination of
the transcript of the judgment of conviction, or imposition of a term of
conditional probation pursuant to section two-b, article five of this chapter,
the Commissioner of the Division of Motor Vehicles determines that the
person was convicted for an offense described in section two of said article or an ordinance of a
municipality of this state which has the same elements as an offense described
in said section, or had a period of
conditional probation imposed pursuant to section two-b, article five of this
chapter, or for an offense described in a municipal ordinance which has the
same elements as an offense described in said section because the person
did drive a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or the combined influence of alcohol or controlled
substances or drugs, or did drive a motor vehicle while having an alcohol
concentration in his or her blood of eight hundredths of one percent or more,
by weight, the commissioner shall make and enter an order revoking the person’s
license to operate a motor vehicle in this state. If the commissioner
determines that the person was convicted of driving a motor vehicle while under
the age of twenty-one years with an alcohol concentration in his or her blood
of two hundredths of one percent or more, by weight, but less than eight
hundredths of one percent, by weight, the commissioner shall make and enter an
order suspending the person’s license to operate a motor vehicle in this state.
The order shall contain the reasons for the revocation or suspension and the
revocation or suspension periods provided for in said section. Further, the
order shall give the procedures for requesting a hearing which is to be held in
accordance with the provisions of said section. The person shall be advised in
the order that because of the receipt of a transcript of the judgment of
conviction by the commissioner a presumption exists that the person named in
the transcript of the judgment of conviction is the person named in the
commissioner’s order and such constitutes sufficient evidence to support
revocation or suspension and that the sole purpose for the hearing held under
this section is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment of
conviction. A copy of the order shall be forwarded to the person by registered
or certified mail, return receipt requested. No revocation or suspension shall
become effective until ten days after receipt of a copy of the order.
(d) The provisions of
this section shall not apply if an order reinstating the operator’s license of
the person has been entered by the commissioner prior to the receipt of the
transcript of the judgment of conviction.
(d) If a person receives
an order advising that his or her license has been suspended or revoked
following receipt by the commissioner of a transcript of a judgment of
conviction, and the person believes that he or she is not the person named in
the commissioner’s order, the person may notify the commissioner in writing.
Upon receipt of this notification, the commissioner shall immediately review
the contents of the judgment of conviction and the information provided by the
person in question and determine if an error has been made. If such an error is
discovered, the commissioner shall immediately reverse the suspension or
revocation of the person’s license and take steps to correctly identify the
individual against whom the judgment of conviction has been entered and
immediately suspend his or her license pursuant to subsection (c) of this
section.
(e) For the purposes of
this section, a person is convicted when the person enters a plea of guilty or
is found guilty by a court or jury. A plea of no contest does not constitute a
conviction for purposes of this section except where the person holds a
commercial drivers license or operates a commercial vehicle.
§17C-5A-1b. Pretrial
suspension of driver’s license.
(a) The court shall, at
the first appearance or arraignment, or as soon as such relevant information
becomes available, suspend the driver’s license and driving privileges of any
person charged with a violation of section two, article five of this chapter
who refused to submit to a secondary chemical test as required by section four
of said article.
(b) Upon motion by the
prosecutor, the court may, at the arraignment or as soon as such relevant
information becomes available, suspend the driver’s license and driving
privileges of any person charged with a violation of section two, article five
of this chapter if the court finds that allowing the person to maintain a
license would pose a substantial risk of harming others during the pendency of
the action.
(c) A person whose
license has been suspended pursuant to this section may file a motion for a
hearing of the suspension in the court in which the charges are pending within ten
days, and the court shall conduct the review in accordance with this article
within thirty days after the filing of the motion. The court shall, at the time of the
suspension, advise the defendant of his or her right to a hearing.
(d) Upon notice that the
court has ordered the suspension of a person’s license, the clerk of the court
in which the charges are pending shall forthwith transmit to the Commissioner
of the Division of Motor Vehicles a copy of the order suspending the person’s
license, along with any license surrendered by the person, and the commissioner
shall promptly update the division’s records to indicate that the person’s
license is suspended.
(e) Licenses suspended
under this section shall remain suspended until a judgment of conviction or
acquittal is entered in the case or until the court enters an order directing
the Commissioner of the Division of Motor Vehicles to terminate the suspension,
but in no event for a period longer than the maximum license suspension period
applicable to the person under section two, article five of this chapter.
(f) Any person whose
driver’s license has been suspended pursuant to this section shall be given
credit for all pretrial suspension time against the period of revocation
imposed.
(g) The court may, in
its discretion or upon motion by a party, impose a modified pretrial suspension
of the driver’s license and driving privileges for any person whose license is
suspended pursuant to the provisions of this section. No person shall be given
credit for any such period of modified pretrial suspension against any future
period of revocation imposed.
§17C-5A-1c. License
suspension and registration for test refusal.
(a) If a person files a
motion for a hearing upon a pretrial suspension of his or her license under subsection
(a), section one-b of this article, the scope of the hearing is limited to
determining whether one or more of the following conditions have not been met:
(1) Whether the
arresting law-enforcement officer had reasonable grounds to believe the
arrested person had committed a violation of section two, article five of this
chapter;
(2) Whether the
law-enforcement officer requested the arrested person to submit to the chemical
test or tests designated pursuant to section four, article five of this chapter;
(3) Whether, at the time
the test was requested, the law-enforcement officer administered the required
written and verbal warnings pursuant to section seven, article five of this
chapter; and
(4) Whether the arrested
person refused to submit to the chemical test or tests requested by the
law-enforcement officer.
(b) Following a hearing
held pursuant to subsection (a) of this section, the clerk of the court in
which the charges are pending shall forthwith transmit to the Commissioner of
the Division of Motor Vehicles a copy of the order entered.
(c) If a person whose license
is suspended under subsection (a), section one-b of this article fails to file
a timely request for a hearing, the determination that the individual refused
to submit to the requested secondary chemical test shall be determined to be
final. At the expiration of this time, the court shall make and enter an order
to that effect. The clerk of the court in which the charges are pending shall
forthwith transmit to the Commissioner of the Division of Motor Vehicles a copy
of the order.
(d) Upon receipt of an
order provided pursuant to subsection (b) or (c) of this section finding that a
person did not refuse the secondary chemical test, the Commissioner of the
Division of Motor Vehicles shall reinstate the person’s driver’s license from
any pretrial suspension imposed for refusal to submit to the secondary chemical
test.
(e) Upon receipt of an
order provided pursuant to subsection (b) or (c) of this section finding that a
person refused the secondary chemical test, the Commissioner of the Division of
Motor Vehicles shall make and enter an order revoking the person’s driver’s
license as follows:
(1) For the first
refusal to submit to the designated secondary chemical test, the commissioner
shall make and enter an order revoking the person’s license to operate a motor
vehicle in this state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol Test and Lock
Program in accordance with the provisions of section three-a, article five-a of
this chapter: Provided, That a person whose license is revoked for
driving while under the influence of drugs is not eligible to participate in
the Motor Vehicle Test and Lock Program.
(2) If the person’s
license has previously been revoked under the provisions of this section, the
commissioner shall, for the refusal to submit to the designated secondary
chemical test, make and enter an order revoking the person’s license to operate
a motor vehicle in this state for a period of ten years: Provided, That
the license may be reissued in five years in accordance with the provisions of
section three of this article.
(3) If the person’s
license has previously been revoked more than once under the provisions of this
section, the commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking the person’s license
to operate a motor vehicle in this state for a period of life.
(f) A copy of each order
entered pursuant to subsection (d) of this section shall be forwarded to the
person by registered or certified mail, return receipt requested, and shall
contain the reasons for the revocation and shall specify the revocation period
imposed pursuant to this section.
(g) A revocation under
this section shall run concurrently with the period of any suspension or
revocation imposed in accordance with other provisions of this code and growing
out of the same incident which gave rise to the arrest for driving a motor
vehicle while under the influence of alcohol, controlled substances or drugs
and the subsequent refusal to undergo the test finally designated in accordance
with the provisions of section four of this article.
§17C-5A-3. Safety and
treatment program; reissuance of license.
(a) The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse shall
administer a comprehensive safety and treatment program for persons whose
licenses have been revoked under the provisions of this article or section
two, article five of this chapter or section seven, article five of this
chapter or subsection (6), section five, article three, chapter seventeen-b of
this code and shall also establish the minimum qualifications for mental health
facilities, day report centers, community correction centers or other public
agencies or private entities conducting the safety and treatment program: Provided,
That the Department of Health and Human Resources, Division of Alcoholism and
Drug Abuse may establish standards whereby the division will accept or approve
participation by violators in another treatment program which provides the same
or substantially similar benefits as the safety and treatment program
established pursuant to this section.
(b) The program shall
include, but not be limited to, treatment of alcoholism, alcohol and drug
abuse, psychological counseling, educational courses on the dangers of alcohol
and drugs as they relate to driving, defensive driving or other safety driving
instruction and other programs designed to properly educate, train and
rehabilitate the offender.
(c) The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide
for the preparation of an educational and treatment the program for each
person whose license has been revoked under the provisions of this article or
section two, article five of this chapter or section seven, article five of
this chapter or subsection (6), section five, article three, chapter
seventeen-b of this code which shall contain the following: (1) A listing and
evaluation of the offender’s prior traffic record; (2) the characteristics and
history of alcohol or drug use, if any; (3) his or her amenability to
rehabilitation through the alcohol safety program; and (4) a recommendation as
to treatment or rehabilitation and the terms and conditions of the treatment or
rehabilitation. The program shall be prepared by persons knowledgeable in the
diagnosis of alcohol or drug abuse and treatment.
(d) There is hereby created
a special revenue account within the State Treasury known as the Department of
Health and Human Resources Safety and Treatment Fund. The account shall be
administered by the Secretary of the Department of Health and Human Resources
for the purpose of administering the comprehensive safety and treatment program
established by subsection (a) of this section. The account may be invested, and
all earnings and interest accruing shall be retained in the account. The
Auditor shall conduct an audit of the fund at least every three fiscal years.
Effective July 1, 2010,
the State Treasurer shall make a one-time transfer of $250,000 from the Motor
Vehicle Fees Fund into the Department of Health and Human Resources Safety and
Treatment Fund.
(e) (1) The program
provider shall collect the established fee from each participant upon
enrollment unless the department has determined that the participant is an
indigent based upon criteria established pursuant to legislative rule
authorized in this section.
(2) If the department
determined that a participant is an indigent based upon criteria established
pursuant to the legislative rule authorized by this section, the department
shall provide the applicant with proof of its determination regarding indigency,
which proof the applicant shall present to the interlock provider as part of
the application process provided in section three-a of this article and/or the
rules promulgated pursuant thereto.
(3) Program providers shall
remit to the Department of Health and Human Resources a portion of the fee
collected, which shall be deposited by the Secretary of the Department of
Health and Human Resources into the Department of Health and Human Resources
Safety and Treatment Fund. The Department of Health and Human Resources shall
reimburse enrollment fees to program providers for each eligible indigent
offender.
(f) On or before January 15
of each year, the Secretary of the Department of Health and Human Resources
shall report to the Legislature on:
(1) The total number of
offenders participating in the safety and treatment program during the prior
year;
(2) The total number of
indigent offenders participating in the safety and treatment program during the
prior year;
(3) The total number of
program providers during the prior year; and
(4) The total amount of
reimbursements paid to program provider during the prior year.
(g) The Commissioner of the
Division of Motor Vehicles, after giving due consideration to the program
developed for the offender, shall prescribe the necessary terms and conditions
for the reissuance of the license to operate a motor vehicle in this state
revoked under this article or section two, article five of this chapter,
or section seven, article five of this chapter or subsection (6), section five,
article three, chapter seventeen-b of this code which shall include successful
completion of the educational, treatment or rehabilitation program, subject to
the following:
(1) When the period of
revocation is six months, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ninety days have elapsed from the date
of the initial revocation, during which time the revocation was actually in
effect; (B) the offender has successfully completed the program; (C) all costs
of the program and administration have been paid; and (D) all costs assessed as
a result of a revocation hearing have been paid.
(2) When the period of
revocation is for a period of one year or for more than a year, the license to
operate a motor vehicle in this state may not be reissued until: (A) At least
one-half of the time period has elapsed from the date of the initial
revocation, during which time the revocation was actually in effect; (B) the
offender has successfully completed the program; (C) all costs of the program
and administration have been paid; and (D) all costs assessed as a result of a
revocation hearing have been paid. Notwithstanding any provision in this code,
a person whose license is revoked for refusing to take a chemical test as
required by section seven, article five of this chapter for a first offense is
not eligible to reduce the revocation period by completing the safety and
treatment program.
(3) When the period of
revocation is for life, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ten years have elapsed from the date of
the initial revocation, during which time the revocation was actually in
effect; (B) the offender has successfully completed the program; (C) all costs
of the program and administration have been paid; and (D) all costs assessed as
a result of a revocation hearing have been paid.
(4) Notwithstanding any
provision of this code or any rule, any mental health facilities or other
public agencies or private entities conducting the safety and treatment program
when certifying that a person has successfully completed a safety and treatment
program shall only have to certify that the person has successfully completed
the program.
(h) (1) The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide
for the preparation of an educational program for each person whose license has
been suspended for sixty days pursuant to the provisions of subsection (n),
section two, article five-a of this chapter. The educational program shall
consist of not less than twelve nor more than eighteen hours of actual
classroom time.
(2) When a sixty-day period
of suspension has been ordered, the license to operate a motor vehicle may not
be reinstated until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually in effect;
(B) the offender has successfully completed the educational program; (C) all
costs of the program and administration have been paid; and (D) all costs
assessed as a result of a suspension hearing have been paid.
(i) A required component of
the treatment program provided in subsection (b) of this section and the
education program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program providing a
forum for victims of alcohol and drug-related offenses and offenders to share
first-hand experiences on the impact of alcohol and drug-related offenses in
their lives. The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall propose and implement a plan for victim
impact panels where appropriate numbers of victims are available and willing to
participate and shall establish guidelines for other innovative programs which
may be substituted where the victims are not available to assist persons whose
licenses have been suspended or revoked for alcohol and drug-related offenses
to gain a full understanding of the severity of their offenses in terms of the
impact of the offenses on victims and offenders. The plan shall require, at a
minimum, discussion and consideration of the following:
(A) Economic losses
suffered by victims or offenders;
(B) Death or physical
injuries suffered by victims or offenders;
(C) Psychological injuries
suffered by victims or offenders;
(D) Changes in the personal
welfare or familial relationships of victims or offenders; and
(E) Other information
relating to the impact of alcohol and drug-related offenses upon victims or
offenders.
The Department of Health
and Human Resources, Division of Alcoholism and Drug Abuse shall ensure that
any meetings between victims and offenders shall be nonconfrontational and
ensure the physical safety of the persons involved.
(j)(1) The Secretary of the
Department of Health and Human Resources shall promulgate a rule for
legislative approval in accordance with article three, chapter twenty-nine-a of
this code to administer the provisions of this section and establish a fee to
be collected from each offender enrolled in the safety and treatment program.
The rule shall include: (A) A reimbursement mechanism to program providers of
required fees for the safety and treatment program for indigent offenders,
criteria for determining eligibility of indigent offenders, and any necessary
application forms; and (B) program standards that encompass provider criteria
including minimum professional training requirements for providers, curriculum
approval, minimum course length requirements and other items that may be
necessary to properly implement the provisions of this section.
(2) The Legislature finds
that an emergency exists and, therefore, the Secretary shall file by July 1,
2010, an emergency rule to implement this section pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.
(k) Nothing in this section
may be construed to prohibit day report or community correction programs,
authorized pursuant to article eleven-c, chapter sixty-two of this code, from
administering a comprehensive safety and treatment program pursuant to this
section.
ARTICLE 5C. OFFICE OF
ADMINISTRATIVE HEARINGS.
§17C-5C-6. Phase out
and termination of Office of Administrative Hearings.
(a) The Office of
Administrative Hearings shall retain jurisdiction over proceedings described in
subdivision (3), section three of this article arising from offenses occurring
on or before June 30, 2017. The Office
of Administrative Hearings shall have no jurisdiction over proceedings described
in said subdivision arising from offenses occurring on or after July 1,
2017.
(b) With respect to all
other proceedings described in section three of this article, the Office of
Administrative Hearings shall retain jurisdiction until June 30, 2018. Beginning
on July 1, 2018, jurisdiction over all matters then pending or thereafter filed
shall be returned to the Commissioner of the Division of Motor Vehicles.
(c) The Office of
Administrative Hearings shall, in an orderly and efficient manner, bring disposition
to all such matters pending before it.
(d) Upon resolution of
all such matters, the Office of Administrative Hearings shall be terminated: Provided, That the Office of
Administrative Hearings shall terminate no later than July 1, 2020.
(e) The Secretary of the
Department of Transportation may establish interim policies and procedures to
aid in the orderly and efficient process during the disposition of remaining
cases before the Office of Administrative Hearings during the phase-out period
until termination, including the transfer of employees from the Office of
Administrative Hearings, if feasible, to other divisions under the Department
of Transportation.
(f) The Office of
Administrative Hearings may apply to the Purchasing Division to purchase in the
open market services pursuant to the provisions of section fifteen, article
three, chapter five-a of this code if the Secretary of the Department of
Transportation determines that doing so is necessary for the orderly and
efficient disposition of those matters pending before it, as required by
subsection (b) of this section.
(g) If, by the deadline
set forth in subsection (c) of this section, the Office of Administrative
Hearings has been unable to finally dispose of and resolve all matters pending
before it, the Secretary of the Department of Transportation is directed to
appoint additional hearing examiners on a temporary basis and other support
personnel to bring to a resolution all remaining matters.
ARTICLE 19. PARTIES, PROCEDURE UPON ARREST AND REPORTS IN CRIMINAL CASES.
§17C-19-3. When person arrested must be taken immediately before a magistrate or court.
(a) Whenever any person is arrested for any violation of this chapter punishable as a misdemeanor, the arrested person shall be immediately taken before a magistrate or court within the county in which the offense charged is alleged to have been committed and who has jurisdiction of the offense and is nearest or most accessible with reference to the place where the arrest is made, in any of the following cases:
(1) When a person arrested demands an immediate appearance before a magistrate or court;
(2) When the person is arrested upon a charge of negligent homicide;
(3) When the person is arrested upon a charge of driving while under the influence of alcohol, or under the influence of any controlled substance, or under the influence of any other drug, or under the combined influence of alcohol and any controlled substance or any other drug;
(4) When the person is arrested upon a charge of failure to stop in the event of an accident causing death, personal injury or damage to property;
(5) When the person is arrested upon a charge of violating section fourteen, article seventeen of this chapter relating to weight violations, except as otherwise provided in that section;
(6) When the person arrested is a resident of a state that has not entered into a nonresident violator compact with this state;
(7) In any other event when the person arrested refuses to accept the written notice to appear in court as his or her promise to appear in court or to comply with the terms of the written notice to appear in court as provided in section four of this article; and
(8) When a person is arrested for driving with a suspended or revoked driver's license for miscellaneous reasons: Provided, That when a person is arrested for driving with a suspended or revoked driver's license for miscellaneous reasons, the arresting officer may issue a charge by citation if a magistrate or judge is not on duty or reasonably available.
(b) When the person arrested is a resident of a state that has entered into a nonresident violator compact with this state, the arresting officer shall issue the person a written notice as provided for in section four of this article and may not take the person immediately before a magistrate or court, except under the terms of the compact or under the circumstances set forth in subsection (a) of this section.
(c) Whenever a person is arrested for any violation of
section two, article five of this chapter, the arresting officer shall request,
and the person shall immediately surrender, his or her driver’s license. The
arresting officer shall submit the person’s driver’s license to the court
before which the person is taken to appear pursuant to subsection (a) of this
section.
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