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Enrolled Version - Final Version Senate Bill 435 History

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SB435 SUB1 enr
ENROLLED

COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 435

(Senators Kessler and Jenkins, original sponsors)

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[Passed April 9, 2005; in effect ninety days from passage.]

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AN ACT to amend and reenact §8-10-2b of the Code of West Virginia, 1931, as amended; and to amend and reenact §17B-3-3c and §17B- 3-9 of said code, all relating to consequences of not paying fines and fees; requiring notice of possibility of withholding of income tax refund under certain circumstances; providing that Tax Commissioner may withhold income tax refund under certain circumstances; providing for distribution of income tax refund withheld; providing Tax Commissioner's administrative fee; providing Tax Commissioner authority to promulgate rules; authorizing reissuance of notice by municipal court under certain circumstances; providing for continuance of driver's license suspension under certain circumstances; creating fund for administrative fee and providing for expenditures from the fund; providing for consequences of erroneous imposition of fines or fees; and increasing fees.

Be it enacted by the Legislature of West Virginia:
That §8-10-2b of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §17B-3-3c and §17B-3-9 of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and costs or failure to appear in court.

(a) If costs, fines, forfeitures or penalties imposed by the municipal court upon conviction of a person for a criminal offense as defined in section three-c, article three, chapter seventeen-b of this code are not paid in full within one hundred eighty days of the judgment, the municipal court clerk or, upon a judgment rendered on appeal, the circuit clerk shall notify the Division of Motor Vehicles of the failure to pay: Provided, That at the time the judgment is imposed, the judge shall provide the person with written notice that failure to pay the same as ordered may result in the withholding of any income tax refund due the licensee and shall result in the suspension of the person's license or privilege to operate a motor vehicle in this state and that the suspension could result in the cancellation of, the failure to renew or the failure to issue an automobile insurance policy providing coverage for the person or the person's family: Provided, however, That the failure of the judge to provide notice does not affect the validity of any suspension of the person's license or privilege to operate a motor vehicle in this state. For purposes of this section, payment shall be stayed during any period an appeal from the conviction which resulted in the imposition of costs, fines, forfeitures or penalties is pending.
Upon notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the costs, fines, forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the contrary, the notice of the failure to pay costs, fines, forfeitures or penalties may not be given where the municipal court, upon application of the person upon whom the costs, fines, forfeitures or penalties were imposed filed prior to the expiration of the period within which these are required to be paid, enters an order finding that the person is financially unable to pay all or a portion of the costs, fines, forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is financially unable to pay a portion of the costs, fines, forfeitures or penalties, requires the person to pay the remaining portion, the municipal court shall notify the Division of Motor Vehicles of the person's failure to pay if not paid within the period of time ordered by the court.
(c) If a person charged with a criminal offense fails to appear or otherwise respond in court, the municipal court clerk shall notify the Division of Motor Vehicles within fifteen days of the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the judge. Upon notice, the Division of Motor Vehicles shall suspend the person's driver's license or privilege to operate a motor vehicle in this state until such time that the person appears as required.
(d) On and after the first day of July, two thousand eight, if the licensee fails to respond to the Division of Motor Vehicles order of suspension within ninety days of receipt of the certified letter, the municipal court of original jurisdiction shall notify the Tax Commissioner that the licensee has failed to pay the costs, fines, forfeitures or penalties assessed by the court or has failed to respond to the citation. The notice provided by the municipal court to the Tax Commissioner must include the licensee's social security number. The Tax Commissioner, or his or her designee, shall withhold from any personal income tax refund due and owing to a licensee the costs, fines, forfeitures or penalties due to the municipality, the Tax Commissioner's administration fee for the withholding and any and all fees that the municipal court would have collected had the licensee appeared: Provided, That the Tax Commissioner's administration fee may not exceed twenty-five dollars: Provided, however, That the Tax Commissioner may change this maximum amount limitation for this fee for fiscal years beginning on or after the first day of July, two thousand eight, by legislative rule promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided further, That the administrative fees deducted shall be deposited in the special revolving fund hereby created in the state treasury, which shall be designated as the "municipal fines and fees collection fund", and the Tax Commissioner shall make such expenditures from the fund as he or she deems appropriate for the administration of this subsection. After deduction of the Tax Commissioner's administration fee, the Tax Commissioner shall remit to the municipality all remaining amounts withheld pursuant to this section and the municipal court shall distribute applicable costs, fines, forfeitures or penalties owed to the municipality, the Regional Jail Authority Fund, the Crime Victims Compensation Fund, the Community Corrections Fund, the Governor's subcommittee on law- enforcement training or any other fund or payee that may be applicable. After the costs, fines, forfeitures or penalties are withheld, the Tax Commissioner shall refund any remaining balance due the licensee. If the refund is not sufficient to cover all the costs, fines, forfeitures or penalties being withheld pursuant to this section, the Tax Commissioner's administration fee shall be retained by the Tax Commissioner and the remaining money withheld shall be remitted by the Tax Commissioner to the municipality. The municipality shall then allocate the money so remitted to the municipality in the following manner: (1) Any costs, fines, forfeitures or penalties due to the municipality; (2) seventy-five percent of the remaining balance shall be paid to the appropriate Regional Jail Authority Fund; (3) fifteen percent of the remaining balance shall be paid to the Crime Victims Compensation Fund; (4) six percent of the remaining balance shall be paid into the Community Corrections Fund; and (5) the final four percent shall be paid to the Governor's subcommittee on law-enforcement training. When the costs, fines, forfeitures or penalties exceed the licensee's income tax refund, the Tax Commissioner shall withhold the remaining balance in subsequent years until such time as the costs, fines, forfeitures or penalties owed are paid in full. The Tax Commissioner shall remit the moneys that he or she collects to the appropriate municipality no later than the first day of July of each year. If the municipal court or the municipality subsequently determines that any such costs, fines, forfeitures or penalties were erroneously imposed, the municipality shall promptly notify the tax commissioner. If the refunds have not been withheld and remitted, the tax commissioner may not withhold and remit payment to the municipality and shall so inform the municipality. If the refunds have already been withheld and remitted to the municipality, the tax commissioner shall so inform the municipality. In either event, all refunds for erroneously imposed costs, fines, forfeitures or penalties shall be made by the municipality and not by the tax commissioner.
(e) Rules and effective date. - The Tax Commissioner may promulgate such rules as may be useful or necessary to carry out the purpose of this section and to implement the intent of the Legislature, to be effective on the first day of July, two thousand eight. Rules shall be promulgated in accordance with the provisions of article three, chapter twenty-nine-a of this code.
(f) On or before the first day of July, two thousand five, the municipal court may elect to reissue notice as provided in subsections (a) and (c) of this section to the Division of Motor Vehicles for persons who remain noncompliant: Provided, That the person was convicted or failed to appear on or after the first day of January, one thousand nine hundred ninety-three. If the original notification cannot be located, the Division of Motor Vehicles shall accept an additional or duplicate notice from the municipal court clerk.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or penalties imposed as the result of criminal conviction or for failure to appear in court.

(a) The Division shall suspend the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state upon receiving notice from a circuit court, magistrate court or municipal court of this state, pursuant to section two-b, article three, chapter fifty of this code or section two-b, article ten, chapter eight of said code or section seventeen, article four, chapter sixty-two of said code, that such person has defaulted on the payment of costs, fines, forfeitures, penalties or restitution imposed on the person by the circuit court, magistrate court or municipal court upon conviction for any criminal offense by the date such court had required such person to pay the same, or that such person has failed to appear in court when charged with such an offense. For the purposes of this section; section two-b, article three, chapter fifty of said code; section two-b, article ten, chapter eight of said code; and section seventeen, article four, chapter sixty-two of said code, "criminal offense" shall be defined as any violation of the provisions of this code, or the violation of any municipal ordinance, for which the violation thereof may result in a fine, confinement in jail or imprisonment in the a correctional facility of this state: Provided, That any parking violation or other violation for which a citation may be issued to an unattended vehicle shall not be considered a criminal offense for the purposes of this section; section two-b, article ten, chapter eight of said code; section two-b, article three, chapter fifty of said code; or section seventeen, article four, chapter sixty-two of said code.
(b) A copy of the order of suspension shall be forwarded to such person by certified mail, return receipt requested. No order of suspension becomes effective until ten days after receipt of a copy of such order. The order of suspension shall advise the person that because of the receipt of notice of the failure to pay costs, fines, forfeitures or penalties, or the failure to appear, a presumption exists that the person named in the order of suspension is the same person named in the notice. The Commissioner may grant an administrative hearing which substantially complies with the requirements of the provisions of section two, article five-a, chapter seventeen-c of this code upon a preliminary showing that a possibility exists that the person named in the notice of conviction is not the same person whose license is being suspended. Such request for hearing shall be made within ten days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall be for the person requesting the hearing to present evidence that he or she is not the person named in the notice. In the event the Commissioner grants an administrative hearing, the Commissioner shall stay the license suspension pending the Commissioner's order resulting from the hearing.
(c) A suspension under this section and section three-a of this chapter will continue until the person provides proof of compliance from the municipal, magistrate or circuit court and pays the reinstatement fee as provided in section nine of this article. The reinstatement fee is assessed upon issuance of the order of suspension regardless of the effective date of suspension.
§17B-3-9. Surrender and return of license not required.
The Division, upon suspending or revoking a license, may not require that the license be surrendered to and be retained by the Division. The surrender of a license may not be a precondition to the commencement and tolling of any applicable period of suspension or revocation: Provided, That before the license may be reinstated, the licensee shall pay a fee of fifty dollars, in addition to all other fees and charges, which shall be collected by the Division and deposited in a special revolving fund to be appropriated to the Division for use in the enforcement of the provisions of this section.

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