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Introduced Version House Bill 2444 History

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hb2444 intr
H.B.2444


(By Delegates Amores, Palumbo, Pethtel,

Stemple, and Craig)


[Introduced February 16, 2005;

referred to the Committee on the Judiciary.]



A BILL to amend and reenact §17B-1-1 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §17C-1-67 ; and to amend and reenact §17C-5A-3a of said code, all relating to mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders.

Be it enacted by the Legislature of West Virginia:
That
§17B-1-1 of the code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §17C-1-67 ; and that §17C-5A-3a of said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 1. WORDS AND PHRASES DEFINED.
§17B-1-1. Definitions.
The following words and phrases when used in this chapter shall, for the purpose of this chapter, have the meanings respectively ascribed to them in this article:
(a) Vehicle. -- Every device in, upon or by which any person or property is or may be transported or drawn upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks;
(b) Motor vehicle. -- Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails;
(c) Motorcycle. -- Every motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a farm tractor as defined herein, a moped as defined in section five-a, article one, chapter seventeen-c of this code, a snowmobile as defined in section one-mm, article one, chapter seventeen-a of said code and an all-terrain vehicle as defined in section one-ii of said article;
(d) Farm tractor. -- Every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines and other implements of husbandry;
(e) School bus. -- Every motor vehicle owned by a public governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to or from school;
(f) Person. -- Every natural person, firm, copartnership, association or corporation;
(g) Operator. -- Every person, other than a chauffeur, who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle;
(h) Chauffeur. -- Every person who is employed by another for the principal purpose of driving a motor vehicle and every person who drives a school bus transporting school children or any motor vehicle when in use for the transportation of persons or property for compensation;
(i) Driver. -- Means any person who drives, operates or is in physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic or who is required to hold a driver's license;
(j) Driver's license. -- Means any permit or license issued by this state to a person which authorizes the person to drive a motor vehicle of a specific class or classes subject to any restriction or endorsement contained thereon;
(k) Owner. -- A person who holds the legal title of a vehicle or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then such conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter;
(l) Nonresident. -- Every person who is not a resident of this state;
(m) Street or highway. -- The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel;
(n) Commissioner. -- The commissioner of motor vehicles of this state;
(o) Department Division. -- The department division of motor vehicles of this state acting directly or through its duly authorized officers or agents;
(p) Suspension. -- Suspension means that the driver's license and privilege to drive a motor vehicle on the public highways are temporarily withdrawn but only during the period of such suspension;
(q) Revocation. -- Revocation means that the driver's license and privilege to drive a motor vehicle on the public highways are terminated and shall not be renewed or restored, except that an application for a new license may be presented and acted upon by the division after the expiration of at least one year after the date of revocation, except as otherwise provided in section two, article five-a, chapter seventeen-c of this code;
(r) Cancellation. -- Cancellation means that a driver's license is annulled and terminated because of some error or defect or because the licensee is no longer entitled to such license, but the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation;
(s) Conviction. -- Conviction means a plea of guilty or nolo contendere, a forfeiture of bond or collateral or a finding of guilt by a court or a jury.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17C-1-67. Conviction.

"Conviction" as used in this chapter shall have the same meaning as that term is defined in article one, chapter seventeen-b of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3a. Establishment of and participation in the motor vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate a motor vehicle alcohol test and lock program for persons whose licenses have been revoked pursuant to this article or the provisions of article five of this chapter, or have been convicted under section two, article five of this chapter. Such The program shall include the establishment of a users fee for persons participating in the program which shall be paid in advance and deposited into the driver's rehabilitation fund. Except where specified otherwise, the use of the term "program" in this section refers to the motor vehicle alcohol test and lock program. The commissioner of the division of motor vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section. Such The rules shall also prescribe those requirements which, in addition to the requirements specified by this section for eligibility to participate in the program, the commissioner determines must be met to obtain the commissioner's approval to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system. For purposes of this section, a "motor vehicle alcohol test and lock system" means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system's assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, such the person is determined to be under the influence of alcohol.
(b) (1) Any person whose license has been is revoked for the first time pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when such the person's minimum revocation period as specified by subsection (c) of this section has expired and such the person is enrolled in or has successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval to participate by the commissioner that he or she is enrolled in a safety and treatment program. Provided, That no person whose license has been revoked pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsections a) or (b), section two, article five of this chapter, or pursuant to the provisions of subsections (f) or (g), section two of this article, shall be eligible for participation in the program: Provided, however, That any person whose license is revoked pursuant to this article or pursuant to article five of this chapter for an act which occurred either while participating in or after successfully completing the program shall not again be eligible to participate in such program
(2) Any person whose license has been suspended pursuant to the provisions of subsection (l), section two of this article for 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 ten eight hundredths of one percent, by weight, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect: Provided, That in the case of a person under the age of eighteen, the person shall be is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person's eighteenth birthday, whichever is later. Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to thereafter comply with the following conditions:
(A) If not already enrolled, the person will enroll in and complete the educational program provided for in subsection (c), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(B) The person will pay all costs of the educational program, any administrative costs and all costs assessed for any suspension hearing.
(3) Notwithstanding the provisions of this section to the contrary, no person eligible to participate in the program under this subsection shall may operate a motor vehicle unless approved to do so by the commissioner.
(c) For purposes of this section, "minimum revocation period" means the portion which has actually expired of the period of revocation imposed by the commissioner pursuant to this article or the provisions of article five of this chapter upon a person eligible for participation in the program A person who participates in the program under subdivision (1), subsection (b) of this section is subject to a minimum revocation period and minimum period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (d) or (f), section two, article five of this chapter or pursuant to subsection (i), section two of this article, the minimum period of revocation before such person is eligible for participation in the test and lock program is thirty days and the minimum period for the use of the ignition interlock device is five months; or that the period described in subdivision (1), subsection (e) of this section, whichever period is greater
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter, refusal to submit to a designated secondary chemical test, the minimum period of revocation before such person is eligible for participation in the test and lock program is thirty days and the minimum period for the use of the ignition interlock device is nine months; or the period set forth in subdivision (1), subsection (e) of this section, whichever period is greater
(3) For a person whose license has been revoked for a second first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (a), section two, article five of this chapter or pursuant to subsection (f), section two of this article, the minimum period of revocation before such the person is eligible for participation in the test and lock program is nine twelve months and the minimum period for the use of the ignition interlock device is eighteen months two years; or that period set forth in subdivision (2), subsection (e) of this section, whichever period is greater
(4) For a person whose license has been revoked for any other period of time a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b), section two, article five of this chapter or pursuant to subsection (g), section two of this article, or pursuant to section seven, article five of this chapter the minimum period of revocation is eighteen six months and the minimum period for the use of the ignition interlock device is two years; or that period set forth in subdivision (3), subsection (e) of this section, whichever period is greater
(5) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection (h), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is one year;
(6) For a person whose license has been revoked for a first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (i), section two, article five of this chapter or pursuant to subsection (m), section two of this article, the minimum period of revocation for participation in the program is two months and the minimum period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article or section seven, article five of this chapter and the person was previously either convicted or license was revoked under any provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in the program under this subsection is one year and the minimum period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to participate because of a violation of subsection (l), section two of this article or subsection (h), section two, article five of this chapter is two months and the minimum period of participation is one year. The division will add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past ten years. Any person required to participate under this subsection must have an ignition interlock device installed on every vehicle he or she owns or operates.
(5) (e) An applicant for the test and lock program must may not have been convicted of any violation of section three, article four, chapter seventeen-b of this code for driving while the applicant's driver's license was suspended or revoked within the two-year six-month period preceding the date of application for admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals in the test and lock program an additional device or devices if such is necessary for employment purposes.
(d) (f) Upon permitting an eligible person to participate in the program, the commissioner shall issue to such the person, and such the person shall be is required to exhibit on demand, a driver's license which shall reflect that such the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(g) The commissioner may extend the minimum period of revocation and the minimum period of participation in the program for a person who violates the terms and conditions of participation in the program as found in this section, or legislative rule, or any agreement or contract between the participant and the division or program service provider.
(e) Any person who has completed the safety and treatment program and who has not violated the terms required by the commissioner of such person's participation in the motor vehicle alcohol test and lock program shall be entitled to the restoration of such person's driver's license upon the expiration of:
(1) One hundred eighty days of the full revocation period imposed by the commissioner for a person described in subdivision (1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for a person described in subdivision (3), subsection (c) of this section;
(3) One year from the date a person described in subdivision (4), subsection (c) of this section is permitted to operate a motor vehicle by the commissioner.
(f) (h) A person whose license has been suspended pursuant to the provisions of subsection (l), section two of this article who has completed the educational program, and who has not violated the terms required by the commissioner of such the person's participation in the motor vehicle alcohol test and lock program, shall be is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person shall be is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that such the records have been expunged and by securely sealing and filing the records. Expungement shall have has the legal effect as if the suspension never occurred. The records shall may not be disclosed or made available for inspection and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of such the information does not divulge the identity of the person.
(g) (i) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during such person's participation in the motor vehicle alcohol test and lock program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars. Any person who assists another person required by the terms of such other person's participation in the motor vehicle alcohol test and lock program to use a motor vehicle alcohol test and lock system in any effort attempts to bypass the alcohol test and lock system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars. Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site, if such is a condition of his or her employment. For the purpose of this section, job site does not include any street or highway open to the use of the public for purposes of vehicular traffic.

NOTE: The purpose of this bill is to require mandatory participation in the motor vehicle alcohol test and lock program for repeat offenders in accordance with federal "Repeat Offender" law; define DUI conviction as either finding of guilt or nolo contendere; and to make various stylistic changes.

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

§17C-1-67
is new; therefore, strike-throughs and underscoring have been omitted.



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