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SB435 SUB1 Senate Bill 435 History

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SB435 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 435

(By Senators Kessler and Jenkins)

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[Originating in the Committee on the Judiciary;

reported March 9, 2005.]

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A BILL 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 the powers and duties of municipal courts; failure to appear for municipal court hearings; failure to pay municipal court fines and fees; cancellation, suspension and revocation of driver's licenses; notice by municipality to Tax Commissioner; payment of fines and fees from state income tax refund; administration fee of Tax Commissioner; allocation of income tax refund; promulgation of rules by Tax Commissioner; suspension of license to continue until fees, fines and reinstatement fee paid; and reissuance of notice by municipality.

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 such 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 such the person's license or privilege to operate a motor vehicle in this state and that such the suspension could result in the cancellation of, the failure to renew or the failure to issue an automobile insurance policy providing coverage for such the person or such the person's family: Provided, however, That the failure of the judge to provide such notice shall does not affect the validity of any suspension of such 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 such costs, fines, forfeitures or penalties is pending.
Upon such 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 such costs, fines, forfeitures or penalties shall may not be given where the municipal court, upon application of the person upon whom the same costs, fines, forfeitures or penalties were imposed filed prior to the expiration of the period within which the same these are required to be paid, enters an order finding that such the person is financially unable to pay all or a portion of the same costs, fines, forfeitures or penalties: Provided, That where the municipal court, upon finding that the person is financially unable to pay a portion thereof of the costs, fines, forfeitures or penalties, requires the person to pay the remaining portion, thereof the municipal court shall notify the Division of Motor Vehicles of such the person's failure to pay the same if the same is if not paid within the period of time ordered by such 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 thereof within fifteen days of the scheduled date to appear unless such the person sooner appears or otherwise responds in court to the satisfaction of the judge. Upon such 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 fines 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 fees or fines 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. 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 fines and fees 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 fees and fines are withheld, the Tax Commissioner shall refund any remaining balance due the licensee. If the refund is not sufficient to cover all the fees and fines 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 fees or fines 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 fees and fines exceed the licensee's income tax refund, the Tax Commissioner shall withhold the remaining balance in subsequent years until such time as the fees and fines 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.
(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 penitentiary 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, shall may not require that the license be surrendered to and be retained by the Division. The surrender of a license shall 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 fifteen 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. Provided, however, That when any license is suspended for failure to maintain motor vehicle liability insurance the reinstatement fee is fifty dollars
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(NOTE: The purpose of this bill is to create a way that municipalities, the Regional Jail Authority, the Crime Victims Compensation Fund, the West Virginia Community Corrections Fund and the Governor's Subcommittee on Law-Enforcement Training can recover moneys for fines and fees that are currently not collectable due to failure to appear in municipal courts.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.)
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