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Introduced Version House Bill 3037 History

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hb3037 intr
H. B. 3037


(By Mr. Speaker, Mr. Kiss, (By Request))
[Introduced March 15, 2005; referred to the
Committee on the Judiciary.]




A BILL to amend and reenact §17C-5A-1, §17C-5A-1a, §17C-5A-2, §17C- 5A-2a, §17C-5A-3, §17C-5A-3a and §17C-5A-4 of the Code of West Virginia, 1931, as amended, all relating to providing for judicial procedures for suspension and revocation of licenses for driving under the influence of alcohol, controlled substances or drugs; eliminating the administrative procedures for suspension and revocation; providing that a judicial officer upon certain findings or a conviction shall suspend or revoke a license for driving under the influence of alcohol, controlled substances or drugs; providing a procedure for judicial reinstatement of a suspended or revoked license and making certain technical changes.

Be it enacted by the Legislature of West Virginia:
That §17C-5A-1, §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3, §17C-5A-3a and §17C-5A-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5.
JUDICIAL PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

§17C-5A-1. Implied consent to judicial 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 designated secondary chemical test, 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.
(b) Any law-enforcement officer arresting a person for an offense described in section two, 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 shall report to the commissioner of the division of motor vehicles by written statement within forty-eight hours the name and address of the person so arrested. 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 shall constitute an oath or affirmation by the person signing the statement that the statements contained therein 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. immediately take the person arrested for an initial appearance before the magistrate or other judicial officer with jurisdiction to hear the matter.
(c) If, upon examination of the a written statement of the officer and the tests results described in subsection (b) of this section, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall determine that a person was arrested for an offense described in section two, 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, 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 was arrested he or she was under the influence of alcohol, controlled substances or drugs, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall make and enter an order revoking suspending the person's license to operate a motor vehicle in this state. The driver shall immediately surrender his or her license to operate a motor vehicle, 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 magistrate or other judicial officer with jurisdiction to hear the matter 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 given 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 for in section two of this article. The clerk of the court shall forward the surrendered driver's license along with a copy of the order to the Commissioner. No revocation or suspension shall 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 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 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 shall constitute an oath or affirmation by the person signing such statement that the statements contained therein are true and that any copy filed is a true copy. Such 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 tests 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) or (g), 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 subsection (a), (b), (c), (d), (e), (f) or (g), section two, article five of this chapter 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 such 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. No suspension or revocation shall become effective until ten days after receipt of a copy of such order.
§17C-5A-1a. Revocation upon conviction for driving under the influence of alcohol, controlled substances or drugs.

(a) If a person is convicted for an offense defined in section two, 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 that 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 is convicted for an offense described in section two, 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 shall forward to the Commissioner 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 and the revoked license when the person convicted has not requested an appeal within twenty days of the sentencing for such conviction. 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 and the revoked license 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 and the revoked license 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, the commissioner shall determine that the person was convicted for an offense described in section two, 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 section two of this article. 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.
(e) (c) 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.
§17C-5A-2. Conviction; revocation.
(a) Upon the written request of a person whose license to operate a motor vehicle in this state has been revoked or suspended under the provisions of section one of this article or section seven, article five of this chapter, the commissioner of the division of motor vehicles shall stay the imposition of the period of revocation or suspension and afford the person an opportunity to be heard. The written request must be filed with the commissioner in person or by registered or certified mail, return receipt requested, within thirty calendar days after receipt of a copy of the order of revocation or suspension or no hearing will be granted. The hearing shall be before the commissioner or a hearing examiner retained by the commissioner who shall rule on evidentiary issues and submit proposed findings of fact and conclusions of law for the consideration of the commissioner and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The hearing shall be held at an office of the division located in or near the county wherein the arrest was made in this state or at some other suitable place in the county wherein the arrest was made if an office of the division is not available.
(b) Any such hearing shall be held within one hundred eighty days after the date upon which the commissioner received the timely written request therefor unless there is a postponement or continuance. The commissioner may postpone or continue any hearing on the commissioner's own motion or upon application for each person for good cause shown. The commissioner shall adopt and implement by a procedural rule written policies governing the postponement or continuance of any such hearing on the commissioner's own motion or for the benefit of any law-enforcement officer or any person requesting the hearing, and such policies shall be enforced and applied to all parties equally. For the purpose of conducting the hearing, the commissioner shall have the power and authority to issue subpoenas and subpoenas duces tecum in accordance with the provisions of section one, article five, chapter twenty-nine-a of this code: Provided, That the notice of hearing to the appropriate law-enforcement officers by registered or certified mail, return receipt requested, shall constitute a subpoena to appear at the hearing without the necessity of payment of fees by the division of motor vehicles.
(c) Law-enforcement officers shall be compensated for the time expended in their travel and appearance before the commissioner by the law-enforcement agency by whom they are employed at their regular rate if they are scheduled to be on duty during said time or at their regular overtime rate if they are scheduled to be off duty during said time.
(d) The principal question at the hearing shall be whether the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or did refuse to submit to the designated secondary chemical test, 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.
The commissioner may propose a legislative rule in compliance with the provisions of article three, chapter twenty-nine-a of this code, which rule may provide that if a person accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused 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, intends to challenge the results of any secondary chemical test of blood, breath or urine, or intends to cross-examine the individual or individuals who administered the test or performed the chemical analysis, the person shall, within an appropriate period of time prior to the hearing, notify the commissioner in writing of such intention. The rule may provide that when there is a failure to comply with the notice requirement, the results of the secondary test, if any, shall be admissible as though the person and the commissioner had stipulated the admissibility of such evidence. Any such rule shall provide that the rule shall not be invoked in the case of a person who is not represented by counsel unless the communication from the commissioner to the person establishing a time and place for the hearing also informed the person of the consequences of the person's failure to timely notify the commissioner of the person's intention to challenge the results of the secondary chemical test or cross-examine the individual or individuals who administered the test or performed the chemical analysis.
(e) In the case of a hearing wherein a person is accused of driving a motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or accused 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 specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol, controlled substances or drugs, or while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or to have been 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; (2) whether the person was lawfully placed under arrest for an offense involving driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of administering a secondary test; and (3) whether the tests, if any, were administered in accordance with the provisions of this article and article five of this chapter.
(f) (a) If, upon conviction, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's 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, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person and was committed in reckless disregard of the safety of others, and if the commissioner magistrate or other judicial officer with jurisdiction to hear the matter further finds that the influence of alcohol, controlled substances or drugs or the alcohol concentration in the blood was a contributing cause to the death, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of ten years: Provided, That if the commissioner person's license has previously been suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(g) (b) If, upon conviction in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of five years: Provided, That if the commissioner the person's license has was previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(h) (c) If, upon conviction, in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of two years: Provided, That if the commissioner the person's license has was previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner the person's license has was previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(i) (d) If, upon conviction, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter finds by a preponderance of the evidence that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, or finds that the person, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, did drive a motor vehicle, or finds that the person knowingly permitted the person's vehicle to be driven by another person who was under the influence of alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by another person who had an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of six months: Provided, That if the commissioner the person's license has was previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner the person's license has was previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(j) (e) If, upon conviction, in addition to a finding that the person 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, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, and if the commissioner magistrate or other judicial officer with jurisdiction to hear the matter further finds that the alcohol concentration in the blood was a contributing cause to the death, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of five years: Provided, That if the commissioner the person's license has was previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(k) (f) If, upon conviction, in addition to a finding that the person 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, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, and if the commissioner magistrate or other judicial officer with jurisdiction to hear the matter further finds that the alcohol concentration in the blood was a contributing cause to the bodily injury, the commissioner shall revoke the person's license for a period of two years: Provided, That if the commissioner the person's license has been previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner the person's license has been previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(l) (g) If, upon conviction the commissioner magistrate or other judicial officer with jurisdiction to hear the matter finds by a preponderance of the evidence that the person 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, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall suspend the person's license for a period of sixty days: Provided, That if the commissioner the person's license has been previously suspended or revoked the person's license under the provisions of this section or section one of this article, the period of suspension or revocation shall be for one year, or until the person's twenty-first birthday, whichever period is longer.
(m) (h) If, upon conviction in addition to a finding that the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in the person's blood of eight hundredths of one percent or more, by weight, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter also finds by a preponderance of the evidence that the person when so driving did have on or within the motor vehicle another person who has not reached his or her sixteenth birthday, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license for a period of one year: Provided, That if the commissioner the person's license has been previously suspended or revoked the person's license under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be ten years: Provided, however, That if the commissioner the person's license has been previously suspended or revoked the person's license more than once under the provisions of this section or section one of this article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(n) (i) For purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of criminal convictions or previous administrative suspensions or revocations shall also be regarded as suspensions or revocations under this section or section one of this article:
(1) Any previous administrative revocation under the provisions of the prior enactment of this section for conduct which occurred within the ten years immediately preceding the date of arrest.
(2) 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, article five of this chapter, for conduct which occurred within the ten years immediately preceding the date of arrest.
(3) Any revocation under the provisions of section seven, article five of this chapter, for conduct which occurred within the ten years immediately preceding the date of arrest.
(o) (j) In the case of a hearing wherein a person is accused of refusing to submit to a designated secondary test, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall make specific findings as to: (1) Whether the arresting law-enforcement officer had reasonable grounds to believe the person had been driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (2) whether 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) whether the person refused to submit to the secondary test finally designated in the manner provided in section four, article five of this chapter; and (4) whether the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for at least one year and up to life if the person refused to submit to the test finally designated in the manner provided in said that section.
(p) (k) If, upon conviction the commissioner magistrate or other judicial officer with jurisdiction to hear the matter finds by a preponderance of the evidence that: (1) The arresting law-enforcement officer had reasonable grounds 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; and (4) the person had been given a written statement advising the person that the person's license to operate a motor vehicle in this state would be revoked for a period of at least one year and up to life if the person refused to submit to the test finally designated, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall revoke the person's license to operate a motor vehicle in this state for the periods specified in section seven, article five of this chapter. The revocation period prescribed in this subsection shall run concurrently with any other revocation period ordered under this section or section one of this article arising out of the same occurrence.
(q) (l) If the commissioner magistrate or other judicial officer with jurisdiction to hear the matter finds to the contrary with respect to the above issues, the commissioner magistrate or other judicial officer with jurisdiction to hear the matter shall rescind his or her earlier order of suspension or revocation or shall reduce the order of suspension or revocation to the appropriate period of revocation under this section or section seven, article five of this chapter.
A copy of the commissioner's order made and entered following the hearing shall be served upon the person by registered or certified mail, return receipt requested. During the pendency of any such hearing, the revocation of the person's license to operate a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an order affirming the commissioner's earlier order of revocation, the person shall be entitled to judicial review as set forth in chapter twenty-nine-a of this code. The commissioner may not stay enforcement of the order. The court may grant a stay or supersede as of the order only upon motion and hearing, and a finding by the court upon the evidence presented, that there is a substantial probability that the appellant shall prevail upon the merits, and the appellant will suffer irreparable harm if the order is not stayed: Provided, That in no event shall the stay or supersede as of the order exceed one hundred fifty days. Notwithstanding the provisions of section four, article five of said chapter, the commissioner may not be compelled to transmit a certified copy of the transcript of the hearing to the circuit court in less than sixty days.
(r) (m) In any revocation or suspension pursuant to this section, if the driver whose license is revoked or suspended had not reached the driver's eighteenth birthday at the time of the conduct for which the license is revoked or suspended, the driver's license shall be revoked or suspended until the driver's eighteenth birthday or the applicable statutory period of revocation or suspension prescribed by this section, whichever is longer.
(s) Funds for this section's hearing and appeal process may be provided from the drunk driving prevention fund, as created by section forty-one, article two, chapter fifteen of this code, upon application for such funds to the commission on drunk driving prevention.
§17C-5A-2a. No right to an administrative hearing.

The department of motor vehicles is hereby authorized and required to assess witness costs at the same rate as witness fees in circuit court and a docket fee of ten dollars for each hearing request against any person filing a request for a hearing under section two of this article who fails to appear, fails to have said order rescinded or fails to have said order modified to a lesser period of revocation.
All fees and costs collected hereunder shall be paid into a special revenue account in the state treasury. The funds in said account shall be used to pay or reimburse the various law- enforcement agencies at the same rate as witnesses in circuit court for the travel and appearance of its officers before the commissioner or authorized deputy or agent pursuant to a hearing request under the provisions of this article. The department shall authorize payment to the law-enforcement agencies from said account as the fees for a particular hearing request are received from the person against whom the costs were assessed. The department shall authorize transfer to an appropriate agency account from the special account to pay costs of registered and certified mailings and other expenses associated with the conduct of hearings under this article as the docket fee for a particular hearing request is received from the person against whom the costs were assessed.
In the event judicial review results in said order being rescinded or modified to a lesser period of revocation the costs assessed shall be discharged. No person has a right to an administrative hearing when his or her license is suspended or revoked under the provisions of this article.
§17C-5A-3. Safety and treatment program; reissuance of license.

(a) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the Division of Alcoholism and Drug Abuse, shall propose a legislative rule or rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code, establishing a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article, or section seven, article five of this chapter, or subsection (6), section five, article three, chapter seventeen-b of this code, and shall likewise establish the minimum qualifications for mental health facilities or other public agencies or private entities conducting the safety and treatment program: Provided, That the Commissioner 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. 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.
(b) (1) The Division of Motor Vehicles, in cooperation with the Department of Health and Human Resources, the Division of Alcoholism and Drug Abuse, shall provide for the preparation of an educational and treatment program for each person whose license has been revoked under the provisions of this article 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: (A) A listing and evaluation of the offender's prior traffic record; (B) characteristics and history of alcohol or drug use, if any; (C) his or her amenability to rehabilitation through the alcohol safety program; and (D) 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. The cost of the program shall be paid out of fees established by the Commissioner of Motor Vehicles in cooperation with the Department of Health and Human Resources, Division of Alcohol and Drug Abuse. The program provider shall collect the established fee from each participant upon enrollment. The program provider shall also at the time of enrollment remit to the Commissioner a portion of the collected fee established by the Commissioner of Motor Vehicles in cooperation with the Department of Health and Human Resources,
which shall be deposited into an account designated the driver's rehabilitation fund, which was created by a prior enactment of this section and which is hereby continued, to be used for the administration of the program.
(2) The Commissioner, 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 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:
(A) When the period of revocation is six months, the license to operate a motor vehicle in this state shall may not be reissued until: (i) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid, and (iv) all costs assessed as a result of a revocation hearing have been paid.
(B) When the period of revocation is for a period of years, the license to operate a motor vehicle in this state shall may not be reissued until: (i) At least one half of such the time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(C) When the period of revocation is for life, the license to operate a motor vehicle in this state shall may not be reissued until: (i) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (ii) the offender has successfully completed the program; (iii) all costs of the program and administration have been paid; and (iv) all costs assessed as a result of a revocation hearing have been paid.
(D) 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 such the person has successfully completed the program.
(c) (1) The Division of Motor Vehicles in cooperation with the Department of Health and Human Resources, Division of Alcohol 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 (l), 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 shall 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.
(d) A required component of the rehabilitation program provided for in subsection (b) and the education program provided for in subsection (c) 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 Commissioner shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code to implement 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 such victims are not available, so as 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 such offenses on victims and offenders. The legislative rules proposed for promulgation by the Commissioner 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.
Any rules promulgated pursuant to this subsection shall contain provisions which ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.

A reduction in the period of suspension or revocation is not effective until a petition therefore has been submitted to and granted by the court that suspended or revoked the license.
§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. Such The program shall include the establishment of a user's 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 revoked 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 subsection (a) or (b), section two, article five of this chapter, or pursuant to the provisions of subsection (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 the 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 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 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 shall 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 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 section two, article five of this chapter, or pursuant to subsection (i), 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 thirty days, and the minimum period for the use of the ignition interlock device is five months, or that 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 the 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 offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in section two, article five of this chapter, or pursuant to 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 months, and the minimum period for the use of the ignition interlock device is eighteen months, 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 pursuant to the provisions of section one-a of this article for conviction of an offense defined in section two, article five of this chapter, or pursuant to section two of this article or pursuant to section seven, article five of this chapter, the minimum period of revocation is eighteen 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) An applicant for the test and lock program must 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 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) Upon permitting an eligible person to participate in the program, the Commissioner shall issue to such the person, and such person who shall be required to exhibit on demand, a driver's license which shall reflect that such person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
(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 may petition the court that suspended or revoked his or her driver's license for restoration of his or her 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) 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 entitled to may petition the court that suspended or revoked his or her driver's license for 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 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 records they have been expunged and by securely sealing and filing the records. Expungement shall have the legal effect as if the suspension never occurred. The records shall 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 information does not divulge the identity of the person.
(g) 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 to bypass the 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.
§17C-5A-4. Search for record of prior offenses by driver.

The Commissioner shall immediately upon receipt of the statements required by section seven, article five of this chapter and section one of this article record the date and time of day of the receipt of such statements and shall forthwith cause a search of the appropriate records of the department to be made for any record of prior offenses under this article and such the Commissioner shall immediately report to the officer making such the statement, an abstract showing any such prior offense, the date thereof, the identity of any court in which any proceedings in regard thereto were instituted and the disposition thereof.
+Any law-enforcement officer who fails to file the statements required by this chapter within forty-eight hours of the arrest of any person charged for any violation of section two, article five of this chapter, or for any offense described in a municipal ordinance which has the same elements as an offense described in said section two, of article five, shall be guilty of a misdemeanor and shall be subject to a fine of not less than twenty dollars nor more than five hundred dollars. And if the commissioner shall willfully fail to post by United States mail or other adequate means of communication a written report addressed to the law- enforcement officer of any such offense, as required by this section, within a period of forty-eight hours after the receipt of the statement, the commissioner shall be guilty of a misdemeanor and shall be subject to a fine of not less than twenty dollars nor more than five hundred dollars.



NOTE: The purpose of this bill is to
eliminate the administrative procedures for suspension and revocation of a driver's license for driving under the influence of alcohol, controlled substances or drugs and to provide instead for a judicial procedure for suspending and revoking the license of a person arrested or convicted of driving under the influence of alcohol, controlled substances or drugs . The bill also provides a procedure for the court to reinstate the driver's license of a person who completes a rehabilitation program.

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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