West Virginia Legislature
2016 Regular Session
Introduced
House Bill 2665
2015 Carryover
(By Delegates Folk, Skinner, Espinosa, Householder, Faircloth, Overington, Upson, Blair, Perdue, Sobonya and Waxman)
[Introduced January 13, 2016; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend and reenact §17C‑5‑2b of the Code of West Virginia, 1931, as amended, relating to participation in Motor Vehicle Alcohol Test and Lock Program; limiting eligibility for participation in the program and for dismissal and discharge of charges.
Be it enacted by the Legislature of West Virginia:
That §17C‑5‑2b of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§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 subsections (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 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 paragraph (E), subdivision (1),
subsection (d), section two of this article, and with an alcohol
concentration in his or her blood of ten hundredths of one percent or less,
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 in the program shall be
for a period of at least one hundred and 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.
(b) A defendant=s
election to participate in deferral under this section shall constitute is
a waiver of his or her right to an administrative hearing as provided in
section two, article five‑a of this chapter.
(c) (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 the 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 after that, 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) When the defendant shall have has
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 the 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) Except as provided herein, unless a defendant
adjudicated pursuant to this subsection be is convicted of a
subsequent violation of this article, discharge and dismissal under this
section shall be is 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 subsection (k), (l) and (m), section two
of this article regarding subsequent offenses, the effect of the dismissal and
discharge shall be is 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 may 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 (m), section two of this article.
(f) There may be only one discharge and dismissal under this section with respect to any person.
(g) No person shall be is 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 vehicle(s), or
(3) 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 alcohol, any controlled substance or any other drug;
(4) The person has previously been convicted of driving under the influence under any provision of section two 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
(5) The person refuses to consent to the designated secondary chemical test to determine the level of alcohol concentration in his or her blood.
(h) (1) After a period of not less than one year which shall
begin begins 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) Notwithstanding any provision of this code to the
contrary, any person prosecuted for a violation of subsection(d), section two,
article five of this chapter whose case is disposed of pursuant to the
provisions of this section shall be is liable for any court costs
assessable against a person convicted of a violation of subsection (j), section
two, article five of this chapter. Payment of such the 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.
NOTE: The purpose of this bill is to eliminate existing loopholes in the Motor Vehicle Alcohol Test and Lock Program. It limits eligibility for participation in the program and for dismissal and discharge of charges.
Strike‑throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.