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WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary
A BILL to amend and
reenact §17C-5-2, §17C-5-2b, §17C-5-4 and §17C-5-7 of the Code of West
Virginia, 1931, as amended; to amend and reenact §17C-5A-1, §17C-5A-1a and §17C-5A-3
of said code; to amend said code by adding thereto two new sections, designated
§17C-5A-1b and §17C-5A-1c; and to amend said code by adding thereto a new
section, designated §17C-5C-6, all relating generally to the procedures for
drivers’ license suspensions and revocations for driving under the influence of
alcohol, controlled substances or drugs; transferring authority for hearing
matters related to suspensions or revocations of drivers’ license for operating
a motor vehicle while under the influence of alcohol, controlled substances or
drugs from the Office of Administrative Hearings to magistrate courts; granting
authority to magistrate courts to suspend or revoke driver’s licenses in such
cases; establishing mandatory revocation periods for individuals convicted of
driving under the influence; authorizing alternate revocation period involving
participation in motor vehicle alcohol test and lock period for certain first
offenses; establishing mandatory revocation periods for individuals upon
subsequent convictions for driving under the influence; requiring individuals
whose driver’s licenses have been revoked upon conviction for driving under the
influence to complete comprehensive safety and treatment program; making
individuals who are found guilty of driving under the influence ineligible for
deferral of further proceedings upon condition of participation in Motor
Vehicle Alcohol Test and Lock Program; making individuals who refuse to submit
to a secondary chemical test ineligible for deferral of further proceedings
upon condition of participation in Motor Vehicle Alcohol Test and Lock Program;
prohibiting secondary test of blood without issuance of warrant signed by a
magistrate or circuit judge; requiring that individual arrested for driving
under the influence be advised orally of certain consequences for refusal to
submit to secondary chemical test; requiring that individual arrested for
driving under the influence be given written statement informing the
individuals of legal consequences of taking or refusing to take a preliminary
breath test and informing the individual of right to receive secondary blood
test; requiring that officer give second oral warning fifteen minutes after
first warning given and before refusal is considered final; requiring that,
following an individual’s refusal to take a preliminary breath test, an
arresting officer execute a signed statement that the officer administered all
required warnings; directing officer to submit copy of written statement to
court having jurisdiction over charges filed against the individual;
eliminating all statutory provisions authorizing or requiring the Commissioner
of the Division of Motor Vehicles to take administrative action upon an
individual’s driver’s license on the basis of a driving under the influence
arrest; limiting administrative jurisdiction of Division of Motor Vehicles and
Office of Administrative Hearings to offenses occurring on or before June 30,
2017; providing that administrative hearings relating to refusal to undergo a
secondary chemical test does not apply to offenses occurring on or after July
1, 2017; eliminating requirement for an order entered by the Division of Motor
Vehicles revoking a driver’s license to advise of procedures for requesting
administrative hearing when the offense is driving under the influence;
limiting the right of individuals to challenge suspension or revocation of
driver’s licenses to the issue of mistaken identity; requiring the commissioner
to take corrective action if a driver’s license is incorrectly suspended or
revoked based on mistaken identity; providing that plea of no contest
constitutes a conviction; requiring pretrial suspension of driver’s licenses if
individual refuses to submit to secondary chemical test; permitting pretrial
suspension of driver’s license by court under certain circumstances;
establishing right to request and receive judicial review of suspension orders
pending criminal proceedings; establishing the scope of review for judicial
review of pretrial driver’s license suspension for refusal to submit to
secondary chemical test; requiring the clerk of a court to transmit a copy of
an order suspending or revoking a driver’s license to the Division of Motor
Vehicles; providing terms and length of pretrial license suspension; giving
person’s convicted of driving under the influence credit for pretrial
suspension time against period of revocation imposed; making persons convicted
of driving under the influence eligible for participation in comprehensive
safety and treatment program and related reductions in length of revocation for
successful competition thereof; establishing procedures and timeline for the
Division of Motor Vehicles to transfer jurisdiction of driver’s license
suspension and revocation to the courts; and making technical corrections.
Be it enacted by the
Legislature of West Virginia:
That §17C-5-2, §17C-5-2b,
§17C-5-4 and §17C-5-7 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; that §17C-5A-1, §17C-5A-1a and §17C-5A-3 of said code be
amended and reenacted; that said code be amended by adding thereto two new
sections, designated §17C-5A-1b and §17C-5A-1c; and that said code be amended
by adding thereto a new section, designated §17C-5C-6, all to read as follows:
ARTICLE 5. SERIOUS
TRAFFIC OFFENSES.
§17C-5-2. Driving under
influence of alcohol, controlled substances or drugs; penalties.
(a) Definitions-
(1) “Impaired state” means
a person:
(A) Is under the influence
of alcohol;
(B) Is under the influence
of any controlled substance;
(C) Is under the influence
of any other drug or inhalant substance;
(D) Is under the combined
influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol
concentration in his or her blood of eight hundredths of one percent or more,
by weight.
(2) “Bodily injury” means
injury that causes substantial physical pain, illness or any impairment of
physical condition.
(3) “Serious bodily injury”
means bodily injury that creates a substantial risk of death, that causes
serious or prolonged disfigurement, prolonged impairment of health or prolonged
loss or impairment of the function of any bodily organ.
(b) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes the death of any person is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state correctional facility
for not less than three nor more than fifteen years, and shall be fined
not less than $1,000 nor more than $3,000, and shall have his or her
driver’s license revoked for a period of ten years: Provided, That
any death charged under this subsection must occur within one year of the
offense: Provided, however,
That if the person has previously been convicted under the provisions of this
section, then the person shall have his or her driver’s license revoked for
life.
(c) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes serious bodily injury to any person other than himself
or herself, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two nor more than
ten years, and shall be fined not less than $1,000 nor more than $3,000,
and shall have his or her driver’s license revoked for a period of five
years: Provided, That if the person
has previously been convicted under the provisions of this section, then the
person shall have his or her driver’s license revoked for life.
(d) Any person who drives a
vehicle in this state while he or she is in an impaired state and such impaired
state proximately causes a bodily injury to any person other than himself or
herself, is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for not less than one day more than one year, and shall
be fined not less than $200 nor more than $1,000, and shall have his or her
driver’s license revoked for a period of two years: Provided, That
such jail term shall include actual confinement of not less than twenty-four
hours: Provided, however, That a person sentenced pursuant to this
subsection shall receive credit for any period of actual confinement he or she
served upon arrest for the subject offense: Provided
further, That if the person has previously been convicted under the
provisions of this section, then the person shall have his or her driver’s
license revoked for life.
(e) Any person who drives a
vehicle in this state: (i) while he or she is in an impaired state or (ii) while he or she is in
an impaired state but has an alcohol concentration in his or her blood of less
than fifteen hundredths of one percent by weight, is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for up to six months, and
shall be fined not less than $100 nor more than $500, and shall have his or
her driver’s license revoked for a period of six months or a period of fifteen
days with an additional one hundred and twenty days of participation in the
Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions
of section three-a, article five-a of this chapter: Provided, That a
person sentenced pursuant to this subsection shall receive credit for any
period of actual confinement he or she served upon arrest for the subject
offense.
(f) Any person who drives a
vehicle in this state while he or she has an alcohol concentration in his or
her blood of fifteen hundredths of one percent or more, by weight, is guilty of
a misdemeanor and, upon conviction thereof, shall be confined in jail for not
less than two days nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than $200 nor more than $1,000, and shall have his or her
driver’s license revoked for a period of one year or for a period of forty-five
days with an additional two hundred and seventy days of participation in the
Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions
of section three-a, article five-a of this chapter. A person sentenced
pursuant to this subdivision subsection shall receive credit for
any period of actual confinement he or she served upon arrest for the subject
offense.
(g) Any person who, being a
habitual user of narcotic drugs or amphetamine or any derivative thereof,
drives a vehicle in this state is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for not less than one day nor more than six
months, which jail term is to include actual confinement of not less than
twenty-four hours, and shall be fined not less than $100 nor more than
$500, and shall have his or her driver’s license revoked for a period of six
months. A person sentenced pursuant to this subdivision subsection
shall receive credit for any period of actual confinement he or she served upon
arrest for the subject offense.
(h) Any person who
knowingly permits his or her vehicle to be driven in this state by any other
person who is in an impaired state is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not more than six months, and
shall be fined not less than $100 nor more than $500, and shall have his or
her driver’s license revoked for a period of six months or a period of fifteen
days with an additional one hundred and twenty days of participation in the
Motor Vehicle Alcohol Test and Lock Program in accordance with the provisions
of section three-a, article five-a of this chapter.
(i) Any person who
knowingly permits his or her vehicle to be driven in this state by any other
person who is a habitual user of narcotic drugs or amphetamine or any
derivative thereof is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months, and shall be
fined not less than $100 nor more than $500, and shall have his or her driver’s
license revoked for a period of six months.
(j) Any person under the
age of twenty-one years who drives a vehicle in this state while he or she has
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,
for a first offense under this subsection is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $25 nor more than $100 and
have his or her driver’s license suspended for a period of sixty days. For
a second or subsequent offense under this subsection, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four
hours, and shall be fined not less than $100 nor more than $500, and
shall have his or her driver’s license suspended or revoked for a period of one
year, or until the person’s twenty-first birthday, whichever period is longer.
A person who is charged with a first offense under the provisions of this
subsection may move for a continuance of the proceedings, from time to time, to
allow the person to participate in the Motor Vehicle Alcohol Test and Lock
Program as provided in section three-a, article five-a of this chapter. Upon
successful completion of the program, the court shall dismiss the charge
against the person and expunge the person's record as it relates to the alleged
offense. In the event the person fails to successfully complete the program,
the court shall proceed to an adjudication of the alleged offense. A motion for
a continuance under this subsection may not be construed as an admission or be
used as evidence.
A person arrested and
charged with an offense under the provisions of this subsection or subsection
(b), (c), (d), (e), (f), (g), (h) or (i) of this section may not also be
charged with an offense under this subsection arising out of the same
transaction or occurrence.
(k) Any person who drives a
vehicle in this state while he or she is in an impaired state and has within
the vehicle one or more other persons who are unemancipated minors who have not
yet reached their sixteenth birthday is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than two days nor
more than twelve months, and shall be fined not less than $200 nor more
than $1,000, and shall have his or her driver’s license revoked for a period
of one year: Provided, That such jail term shall include actual
confinement of not less than forty-eight hours: Provided, however, That
a person sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the subject
offense: Provided further,
That if the person has previously been convicted under the provisions of this
section, then the person shall have his or her driver’s license revoked for a
period of ten years: And provided further,
That if the person has previously been convicted under the provisions of this
section, then the person shall have his or her driver’s license revoked for life.
(l) A person violating any
provision of subsection (d), (e), (f), (g), (h) or (j) (i) of
this section, for the second offense under this section, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for not
less than six months nor more than one year, shall have his or her driver’s
license revoked for a period of ten years, and the court may, in its
discretion, impose a fine of not less than $1,000 nor more than $3,000: Provided, That a person
violating subsection (d) for the second offense shall have his or her driver’s
license revoked for life.
(m) A person violating any
provision of subsection (d), (e), (f), (g), (h) or (j) (i) of
this section, for the third or any subsequent offense under this section, is
guilty of a felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than two nor more than five years, shall
have his or her driver’s license revoked for life, and the court may, in
its discretion, impose a fine of not less than $3,000 nor more than $5,000.
(n) For purposes of
subsections (l) and (m) of this section relating to second, third and
subsequent offenses, the following events shall be regarded as offenses under
this section:
(1) Any conviction under
the provisions of subsection (b), (c), (d), (e), (f), (g) or (h) of this
section or under a prior enactment of this section for an offense which
occurred within the ten-year period immediately preceding the date of arrest in
the current proceeding;
(2) Any conviction under a
municipal ordinance of this state or any other 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 subsection (b), (c), (d), (e), (f), (g), (h) or (i) of
this section, which offense occurred within the ten-year period immediately
preceding the date of arrest in the current proceeding; and,
(3) Any period of
conditional probation imposed pursuant section two-b of this article for
violation of subsection (e) of this section, which violation occurred within
the ten-year period immediately preceding the date of arrest in the current
proceeding.
(o) A person may be charged
in a warrant or indictment or information for a second or subsequent offense
under this section if the person has been previously arrested for or charged
with a violation of this section which is alleged to have occurred within the
applicable time period for prior offenses, notwithstanding the fact that there
has not been a final adjudication of the charges for the alleged previous
offense. In that case, the warrant or indictment or information must set forth
the date, location and particulars of the previous offense or offenses. No
person may be convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final, or the person
has previously had a period of conditional probation imposed pursuant to
section two-b of this article.
(p) The fact that any
person charged with a violation of subsection (b), (c), (d), (e), (f) or (g) of
this section, or any person permitted to drive as described under subsection(h)
or (i) of this section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense against any charge
of violating subsection (b), (c), (d), (e), (f), (g), (h) or (i) of this
section.
(q) For purposes of this
section, the term “controlled substance” has the meaning ascribed to it in
chapter sixty-a of this code.
(r) The sentences provided
in this section upon conviction for a violation of this article are mandatory
and are not subject to suspension or probation: Provided, That the court
may apply the provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for a first
offense under this section: Provided, however, That the court may impose
a term of conditional probation pursuant to section two-b of this article to
persons adjudicated thereunder. An order for home detention by the court
pursuant to the provisions of article eleven-b of said chapter may be used as
an alternative sentence to any period of incarceration required by this section
for a first or subsequent offense: Provided, further, That for any
period of home incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no fewer than
five days of the total period of home confinement ordered and the offender may
not leave home for those five days notwithstanding the provisions of section
five, article eleven-b, chapter sixty-two of this code: And provided further,
That for any period of home incarceration ordered for a person convicted of a
third or subsequent violation of this section, electronic monitoring shall be
included for no fewer than ten days of the total period of home confinement
ordered and the offender may not leave home for those ten days notwithstanding
section five, article eleven-b, chapter sixty-two of this code.
(s) A person whose
driver’s license has been revoked pursuant to this section must complete a
comprehensive safety and treatment program as set forth in section three,
article five-a of this chapter before his or her driver’s license can be
reinstated.
(t) No person convicted
of a felony offense under this section shall be eligible for participation in
the Motor Vehicle Alcohol Test and Lock Program as described in section three-a,
article five-a of this chapter. Unless otherwise ordered by the court, any
person who is convicted of a misdemeanor offense is eligible for participation
in the Motor Vehicle Alcohol Test and Lock Program as described in section
three-a, article five-a of this chapter.
§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
subsection (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 of 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 subsection
(e), section two of this article, 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 shall be
for a period of at least one hundred 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 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
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, 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 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 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 convicted of a
subsequent violation of this article, discharge and dismissal under this
section shall be 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 subsections (l), (m) and (n), section two of this article regarding
subsequent offenses, the effect of the dismissal and discharge shall be 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 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 (n), 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
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); (3) If 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 of
alcohol, any controlled substance or any other drug; or (4) If the person
refused the secondary chemical test pursuant to section seven of this article.
(h) (1) After a period of
not less than one year which shall begin 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 (e), section two,
article five of this chapter whose case is disposed of pursuant to the
provisions of this section shall be 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 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.
§17C-5-4. Implied
consent to test; administration at direction of law-enforcement officer;
designation of type of test; definition of law-enforcement officer.
(a) Any person who drives a
motor vehicle in this state is considered to have given his or her consent by
the operation of the motor vehicle to a preliminary breath analysis and a
secondary chemical test of either his or her blood or breath to determine the alcohol
concentration in his or her blood, or the concentration in the person’s body of
a controlled substance, drug or any combination thereof.
(b) A preliminary breath
analysis may be administered in accordance with the provisions of section five
of this article whenever a law-enforcement officer has reasonable cause to
believe a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which has the same
elements as an offense described in section two of this article.
(c) A secondary test of
blood or breath is incidental to a lawful arrest and is to be administered at
the direction of the arresting law-enforcement officer having probable cause to
believe the person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which has the same
elements as an offense described in section two of this article: Provided, That no secondary
test of blood may be performed without issuance of a warrant signed by a
magistrate or a circuit judge.
(d) The law-enforcement
agency that employs the arresting law-enforcement officer shall designate the
secondary tests to be administered: Notwithstanding the provisions of section
seven of this article, the refusal to submit to a blood test only may not
result in the revocation of the arrested person’s license to operate a motor
vehicle in this state.
(e) Any person to whom a preliminary breath
test is administered who is arrested shall be advised orally that his or her
refusal to submit to a secondary chemical test will result in revocation of his
or her license to operate a motor vehicle while any criminal charges are
pending brought pursuant to section two of this article or an ordinance of a
municipality of this state which has the same elements as an offense described
in section two of this article, and given a written statement advising him
or her that his or her refusal to submit to the secondary chemical test
pursuant to subsection (d) of this section will result in the revocation of his
or her license to operate a motor 'vehicle in this state for a period of at
least forty-five days and up to life of the following:
(1) That a person’s
refusal to submit to a secondary chemical test pursuant to subsection (d) of
this section will result in the revocation of his or her license to operate a
motor vehicle during the pendency of any criminal charges brought alleging a
violation of section two of this article or an ordinance of a municipality of
this state which has the same elements as an offense described in section two
of this article;
(2) That, if a test is
taken, the results of the test may be used against him or her in court as
evidence of violating section two of this article or an ordinance of a municipality
of this state which has the same elements as an offense described in section
two of this article; and
(3) That, if the person
first submits to the requested alcohol and/or substance tests, the person has
the right to have a test or tests of his or her blood performed as provided in
section nine of this article.
(f) Any law-enforcement
officer who has been properly trained in the administration of any secondary
chemical test authorized by this article, including, but not limited to, certification
by the Bureau for Public Health in the operation of any equipment required for
the collection and analysis of a breath sample, may conduct the test at any
location in the county wherein the arrest is made: Provided, That the
law-enforcement officer may conduct the test at the nearest available properly
functioning secondary chemical testing device located outside the county in
which the arrest was made, if: (i) There is no properly functioning secondary
chemical testing device located within the county the arrest was made; or (ii)
there is no magistrate available within the county the arrest was made for the
arraignment of the person arrested. A law-enforcement officer who is directing
that a secondary chemical test be conducted has the authority to transport the
person arrested to where the secondary chemical testing device is located.
(g) If the arresting
officer lacks proper training in the administration of a secondary chemical
test, then any other law-enforcement officer who has received training in the
administration of the secondary chemical test to be administered may, upon the
request of the arresting law-enforcement officer and in his or her presence,
conduct the secondary test. The results of a test conducted pursuant to this
subsection may be used in evidence to the same extent and in the same manner as
if the test had been conducted by the arresting law-enforcement officer.
(h) Only the person
actually administering or conducting a test conducted pursuant to this article
is competent to testify as to the results and the veracity of the test.
(I) (i) (1) For the purpose of this article, the term
“law-enforcement officer” or “police officer” means: (1) Any member of the West
Virginia State Police; (2) any sheriff and any deputy sheriff of any county;
(3) any member of a police department in any municipality as defined in section
two, article one, chapter eight of this code; (4) any natural resources police
officer of the Division of Natural Resources; and (5) any special police
officer appointed by the Governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the course of
instruction at a law-enforcement training academy as provided for under the
provisions of section nine, article twenty-nine, chapter thirty of this code.
(2) In addition to
standards promulgated by the Governor’s Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty of
this code, governing the qualification of law-enforcement officers and the
entry-level law-enforcement training curricula, the Governor’s Committee on
Crime, Delinquency and Correction shall require the satisfactory completion of
a minimum of not less than six hours of training in the recognition of
impairment in drivers who are under the influence of controlled substances or
drugs other than alcohol.
(3) In addition to
standards promulgated by the Governor’s Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty of
this code, establishing standards governing in-service law-enforcement officer
training curricula and in-service supervisory level training curricula, the
Governor’s Committee on Crime, Delinquency and Correction shall require the
satisfactory completion of a minimum of not less than six hours of training in
the recognition of impairment in drivers who are under the influence of
controlled substances or drugs other than alcohol.
(4) That after December
31, 2014 A law-enforcement officer who has not satisfactorily completed the
minimum number of hours of training in the recognition of impairment in drivers
who are under the influence of controlled substances or drugs other than
alcohol, required by subdivisions (2) or (3), may no longer require any person
to submit to secondary chemical test of his or her blood for the purposes of
determining the concentration in the person’s body of a controlled substance,
drug, or any combination thereof.
(j) A law-enforcement
officer who has reasonable cause to believe that person has committed an
offense prohibited by section eighteen, article seven, chapter twenty of this
code, relating to the operation of a motorboat, jet ski or other motorized
vessel, shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis and incidental to a
lawful arrest, a secondary chemical test of the accused person’s blood or
breath to determine the alcohol concentration in his or her blood, or the concentration
in the person’s body of a controlled substance, drug, or any combination
thereof.
§17C-5-7. Refusal to
submit to tests; revocation of license or privilege; consent not withdrawn if
person arrested is incapable of refusal; hearing.
(a) If any person under
arrest as specified in section four of this article refuses to submit to any
secondary chemical test, the tests shall not be given: Provided, That
prior to the refusal, the person is given an oral warning and a written
statement advising him or her that containing the warnings contained
in subsection (e), section four of this article, and an oral warning that
his or her refusal to submit to the secondary test finally designated will
result in the revocation suspension of his or her license to
operate a motor vehicle in this state for a period of at least forty-five
days and up to life during the pendency of any criminal charge brought
pursuant to section two of this article or an ordinance of a municipality of this
state which has the same elements as an offense described in section two of
this article. and that after After fifteen minutes following
the receipt of these warnings by the person under arrest, then the
officer shall again issue an oral warning to the person under arrest. If the person still refuses to consent,
the refusal is considered final. The arresting officer after that period of
time expires has no further duty to provide the person with an opportunity to
take the secondary test.
(b) The officer shall, within forty-eight hours of the
refusal, sign and submit to the Commissioner of Motor Vehicles and the court
having jurisdiction over the charge filed against the person pursuant to
section two of this article a written statement of the officer that: (1) He
or she had probable cause 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 in the manner provided
in section four of this article; and (4) the person was given a written
statement advising him or her that containing the warnings contained in subsection (e),
section four of this article, and an oral warning that his or her refusal to
submit to the secondary test finally designated will result in the suspension
of his or her license to operate a
motor vehicle in this state would be revoked for a period of at least forty-five
days and up to life if he or she refused to submit to the secondary test
finally designated in the manner provided in section four of this article during
the pendency of any criminal charge brought pursuant to section two of this
article or an ordinance of a municipality of this state which has the same
elements as an offense described in section two of this article. The
signing of the statement required to be signed by this section constitutes an
oath or affirmation by the person signing the statement that the statements
contained in the statement 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. Upon
receiving the statement the commissioner shall make and enter an order revoking
the person's license to operate a
motor vehicle in this state for the period prescribed by this section
For
the first refusal to submit to the designated secondary chemical test, the
commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state for
a period of one year or forty-five days, with an additional one year of
participation in the Motor Vehicle Alcohol Test and Lock Program in accordance
with the provisions of section three-a, article five-a of this chapter: Provided,
That a person revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program. The
application for participation in the Motor Vehicle Alcohol Test and Lock
Program shall be considered to be a waiver of the hearing provided in section
two of said article. If the person's
license has previously been revoked under the provisions of this section, the
commissioner shall, for the refusal to submit to the designated secondary
chemical test, make and enter an order revoking the person's license to operate a motor vehicle in this state for
a period of ten years: Provided, however, That the license may be
reissued in five years in accordance with the provisions of section three,
article five-a of this chapter. If the person's license has previously been revoked more than once
under the provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter an order
revoking the person's license to
operate a motor vehicle in this state for a period of life. A copy of each
order shall be forwarded to the person by registered or certified mail, return
receipt requested, and shall contain the reasons for the revocation and shall
specify the revocation period imposed pursuant to this section. A revocation
shall not become effective until ten days after receipt of the copy of the
order. Any person who is unconscious or who is otherwise in a condition
rendering him or her incapable of refusal shall be considered not to have
withdrawn his or her consent for a test of his or her blood or breath as
provided in section four of this article and the test may be administered
although the person is not informed that his or her failure to submit to the
test will result in the revocation of his or her license to operate a motor
vehicle in this state for the period provided for in this section. A revocation
under this section shall run concurrently with the period of any suspension or
revocation imposed in accordance with other provisions of this code and growing
out of the same incident which gave rise to the arrest for driving a motor
vehicle while under the influence of alcohol, controlled substances or drugs
and the subsequent refusal to undergo the test finally designated in accordance
with the provisions of section four of this article.
(b) For the purposes of
this section, where reference is made to previous suspensions or revocations
under this section, the following types of suspensions or revocations shall
also be regarded as suspensions or revocations under this section:
(1) 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 of this
article for conduct which occurred on or after June 10, 1983; and
(2) Any revocation under
the provisions of section one or two, article five-a of this chapter for
conduct which occurred on or after June 10, 1983.
(c) A person whose
license to operate a motor vehicle in this state has been revoked shall be
afforded an opportunity to be heard, in accordance with the provisions of
section two, article five-a of this chapter.
(d) The refusal to
submit to a blood test may be admissible at the courts discretion in a trial
for the offense of driving a motor vehicle in this state while under the
influence of alcohol a controlled substance or drug or the combination of
alcohol and drugs.
ARTICLE 5A.
ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING
UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1. Implied consent to administrative 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 secondary chemical test required under the provisions
of article five of this chapter 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: Provided,
That the provisions of this subsection do not apply to offenses occurring on or
after July 1, 2017.
(b) Any law-enforcement
officer investigating a person for an offense described in section two, article
five of this chapter occurring on or before June 30, 2017, or for an
offense described in a municipal ordinance which has the same elements as an
offense described in said section occurring on or before June 30, 2017,
shall report to the Commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours of the conclusion of the investigation the
name and address of the person believed to have committed the offense. 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
constitutes an oath or affirmation by the person signing the statement that the
statements contained in the statement 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.
(c) If, upon examination of
the written statement of the officer and the tests results described in
subsection (b) of this section, the commissioner determines that a person
committed an offense described in section two, article five of this chapter or
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 committed the offense he
or she was under the influence of alcohol, controlled substances or drugs, the
commissioner shall make and enter an order revoking or suspending the person’s
license to operate a motor vehicle in this state. 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 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 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 in section two of this article. A revocation or suspension
shall not 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 on or before June 30, 2017, 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 constitutes an oath or affirmation by
the person signing the statement that the statements contained in the statement
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.
(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
test 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), (g) or (h), 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), (g) or (h), 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 the 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. A suspension
or revocation shall not become effective until ten days after receipt of a copy
of the order.
§17C-5A-1a. Revocation
upon conviction for driving under the influence of alcohol, controlled
substances or drugs.
(a) If a person has a term
of conditional probation imposed pursuant to section two-b, article five of
this chapter, or 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 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 has had a term of conditional probation imposed pursuant to
section two-b, article five of this chapter, or 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 of the Division of Motor Vehicles
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
when the person convicted has not requested an appeal within twenty days of the
sentencing for such conviction. If the term of conditional probation is the act
of a magistrate court, the magistrate court clerk shall forward the transcript
when the order imposing the term of conditional probation is entered. 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 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 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, or imposition of a term of
conditional probation pursuant to section two-b, article five of this chapter,
the Commissioner of the Division of Motor Vehicles determines that the
person was convicted for an offense described in section two, article five of
this chapter or
an ordinance of a municipality of this state which has the same elements as an
offense described in section two of this article, or had a period of conditional probation imposed
pursuant to section two-b, 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.
(d) If a person receives
an order advising that his or her license has been suspended or revoked
following receipt by the commissioner of a transcript of a judgment of
conviction, and the person believes that he or she is not the person named in
the commissioner’s order, the person may notify the commissioner. Upon receipt of this notification, the
commissioner shall immediately review the contents of the judgment of
conviction and the information provided by the person in question and determine
if an error has been made. If such an
error is discovered, the commissioner shall immediately reverse the suspension
or revocation of the person’s license and take steps to correctly identify the
individual against whom the judgment of conviction has been entered and
immediately suspend his or her license pursuant to subsection (c) of this
section.
(e) 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. A plea of no contest does not constitute a
conviction for purposes of this section except where the person holds a
commercial drivers license or operates a commercial vehicle.
§17C-5A-1b. Pretrial
suspension of driver’s license.
(a) The court shall, at
the arraignment or as soon as such relevant information becomes available,
suspend the driver’s license and driving privileges of any person charged with
a violation of section two, article five of this chapter who refused to submit
to a secondary chemical test as required by section four, article five of this
chapter.
(b) Upon motion by the
prosecutor, the court may, at the arraignment or as soon as such relevant
information becomes available, suspend the driver’s license and driving
privileges of any person charged with a violation of section two, article five
of this chapter if the court finds that allowing the person to maintain a
license would pose a high risk of harming others during the pendency of the
action.
(c) A person whose
license has been suspended pursuant to this section may file a motion for
judicial review of the suspension, and the court shall conduct the review in
accordance with this article within thirty days after the filing of the motion. The court shall, at the time of the
suspension, advise the defendant of his or her right to the review.
(d) Upon notice that the
court has ordered the suspension of a person’s license, the clerk of the court
in which the charges are pending shall forthwith transmit to the Commissioner
of the Division of Motor Vehicles a copy of the order suspending the person’s
license, along with any license surrendered by the person, and the commissioner
shall promptly update the division’s records to indicate that the person’s
license is suspended.
(e) Licenses suspended
under this section shall remain suspended until a judgment of conviction or
acquittal is entered in the case or until the court enters an order terminating
the suspension, but in no event for a period longer than the maximum license
suspension period applicable to the person under section two, article five of
this chapter.
(f) Any person whose
driver’s license has been suspended pursuant to this section shall be given
credit for all pretrial suspension time against the period of revocation
imposed.
§17C-5A-1c. Judicial
review of pretrial license suspension for test refusal.
If a person appeals a
pretrial suspension of his or her license under section one-b of this article,
the scope of the appeal is limited to determining whether one or more of the
following conditions have not been met:
(1) Whether the
arresting law-enforcement officer had reasonable grounds to believe the
arrested person had committed a violation of section two, article five of this
chapter;
(2) Whether the law-enforcement
officer requested the arrested person to submit to the chemical test or tests
designated pursuant to section four, article five;
(3) Whether, at the time
the test was requested, the law-enforcement officer administered the required
written and verbal warnings pursuant to section seven, article five of this
chapter; and
(4) Whether the arrested
person refused to submit to the chemical test or tests requested by the law-enforcement
officer.
§17C-5A-3. Safety and treatment program; reissuance of
license.
(a) The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse shall
administer a comprehensive safety and treatment program for persons whose
licenses have been revoked under the provisions of this article or section
two, article five of this chapter or section seven, article five of this
chapter or subsection (6), section five, article three, chapter seventeen-b of
this code and shall also establish the minimum qualifications for mental health
facilities, day report centers, community correction centers or other public
agencies or private entities conducting the safety and treatment program: Provided,
That the Department of Health and Human Resources, Division of Alcoholism and
Drug Abuse 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.
(b) 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.
(c) The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide
for the preparation of an educational and treatment the program for each person
whose license has been revoked under the provisions of this article or
section two, article five of this chapter 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: (1) A listing and evaluation of
the offender’s prior traffic record; (2) the characteristics and history of
alcohol or drug use, if any; (3) his or her amenability to rehabilitation
through the alcohol safety program; and (4) 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.
(d) There is hereby created
a special revenue account within the State Treasury known as the Department of
Health and Human Resources Safety and Treatment Fund. The account shall be administered
by the Secretary of the Department of Health and Human Resources for the
purpose of administering the comprehensive safety and treatment program
established by subsection (a) of this section. The account may be invested, and
all earnings and interest accruing shall be retained in the account. The
Auditor shall conduct an audit of the fund at least every three fiscal years.
Effective July 1, 2010, the
State Treasurer shall make a one-time transfer of $250,000 from the Motor
Vehicle Fees Fund into the Department of Health and Human Resources Safety and
Treatment Fund.
(e) (1) The program
provider shall collect the established fee from each participant upon
enrollment unless the department has determined that the participant is an
indigent based upon criteria established pursuant to legislative rule
authorized in this section.
(2) If the department
determined that a participant is an indigent based upon criteria established
pursuant to the legislative rule authorized by this section, the department
shall provide the applicant with proof of its determination regarding
indigency, which proof the applicant shall present to the interlock provider as
part of the application process provided in section three-a of this article
and/or the rules promulgated pursuant thereto.
(3) Program providers shall
remit to the Department of Health and Human Resources a portion of the fee
collected, which shall be deposited by the Secretary of the Department of
Health and Human Resources into the Department of Health and Human Resources
Safety and Treatment Fund. The Department of Health and Human Resources shall
reimburse enrollment fees to program providers for each eligible indigent
offender.
(f) On or before January 15
of each year, the Secretary of the Department of Health and Human Resources
shall report to the Legislature on:
(1) The total number of
offenders participating in the safety and treatment program during the prior
year;
(2) The total number of
indigent offenders participating in the safety and treatment program during the
prior year;
(3) The total number of
program providers during the prior year; and
(4) The total amount of
reimbursements paid to program provider during the prior year.
(g) The Commissioner of the
Division of Motor Vehicles, 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 two, article five of this chapter,
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:
(1) When the period of
revocation is six months, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ninety days have elapsed from the date
of the initial revocation, during which time the revocation was actually in
effect; (B) the offender has successfully completed the program; (C) all costs
of the program and administration have been paid; and (D) all costs assessed as
a result of a revocation hearing have been paid.
(2) When the period of
revocation is for a period of one year or for more than a year, the license to
operate a motor vehicle in this state may not be reissued until: (A) At least
one-half of the time period has elapsed from the date of the initial
revocation, during which time the revocation was actually in effect; (B) the
offender has successfully completed the program; (C) all costs of the program
and administration have been paid; and (D) all costs assessed as a result of a
revocation hearing have been paid. Notwithstanding any provision in this code,
a person whose license is revoked for refusing to take a chemical test as
required by section seven, article five of this chapter for a first offense is
not eligible to reduce the revocation period by completing the safety and
treatment program.
(3) When the period of
revocation is for life, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ten years have elapsed from the date of
the initial revocation, during which time the revocation was actually in
effect; (B) the offender has successfully completed the program; (C) all costs
of the program and administration have been paid; and (D) all costs assessed as
a result of a revocation hearing have been paid.
(4) 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 the person has successfully completed
the program.
(h) (1) The Department of
Health and Human Resources, Division of Alcoholism 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 (n),
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 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.
(i) A required component of
the treatment program provided in subsection (b) of this section and the
education program provided for in subsection (c) of this section 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 Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall propose and implement a plan for 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 the victims are not available 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 the offenses on victims and offenders. The plan 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.
The Department of Health
and Human Resources, Division of Alcoholism and Drug Abuse shall ensure that
any meetings between victims and offenders shall be nonconfrontational and
ensure the physical safety of the persons involved.
(j)(1) The Secretary of the
Department of Health and Human Resources shall promulgate a rule for
legislative approval in accordance with article three, chapter twenty-nine-a of
this code to administer the provisions of this section and establish a fee to
be collected from each offender enrolled in the safety and treatment program.
The rule shall include: (A) A reimbursement mechanism to program providers of
required fees for the safety and treatment program for indigent offenders,
criteria for determining eligibility of indigent offenders, and any necessary
application forms; and (B) program standards that encompass provider criteria
including minimum professional training requirements for providers, curriculum
approval, minimum course length requirements and other items that may be
necessary to properly implement the provisions of this section.
(2) The Legislature finds
that an emergency exists and, therefore, the Secretary shall file by July 1, 2010,
an emergency rule to implement this section pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.
(k) Nothing in this section
may be construed to prohibit day report or community correction programs,
authorized pursuant to article eleven-c, chapter sixty-two of this code, from
administering a comprehensive safety and treatment program pursuant to this
section.
ARTICLE 5C. OFFICE OF
ADMINISTRATIVE HEARINGS.
§17C-5C-6. Phase out
and termination of Office of Administrative Hearings.
(a) The Office of
Administrative Hearings shall retain jurisdiction over proceedings described in
subdivision (3), section three of this article arising from offenses occurring
on or before June 30, 2017. The Office
of Administrative Hearings shall have no jurisdiction over proceedings
described in subdivision (3), section three of this article arising from
offenses occurring on or after July 1, 2017.
(b) The Office of
Administrative Hearings shall in an orderly and efficient manner, bring
disposition to all such matters pending before it.
(c) Upon resolution of
all such matters, the Office of Administrative Hearings shall be terminated: Provided, That the Office of
Administrative Hearings shall terminate no later than July 1, 2020.
(d) The Secretary of the
Department of Transportation may establish interim policies and procedures to
aid in the orderly and efficient process during the disposition of remaining
cases before the Office of Administrative Hearings during the phase-out period
until termination, including the transfer of employees from the Office of
Administrative Hearings, if feasible, to other divisions under the Department
of Transportation.
(e) The Office of
Administrative Hearings may apply to the Purchasing Division to purchase in the
open market services pursuant to the provisions of section fifteen, article
three, chapter five-a of this code if the Secretary of the Department of
Transportation determines that doing so is necessary for the orderly and
efficient disposition of those matters pending before it, as required by
subsection (b) of this section.
(f) If, by the deadline
set forth in subsection (c) of this section, the Office of Administrative
Hearings has been unable to finally dispose of and resolve all matters pending
before it, the Secretary of the Department of Transportation is directed to
appoint additional hearing examiners on a temporary basis and other support
personnel to bring to a resolution all remaining matters.
NOTE: The purpose of this bill is
to remove the
Division of Motor Vehicles from the administration of license suspension and
revocation in cases where an individual is charged with driving under the
influence. Broadly, the bill transfers
all decision-making concerning the suspension, revocation and/or reinstatement
of an individual’s driver’s license to the courts. The courts then make determinations
concerning a driver’s license in accordance with certain procedures, and all
within the context of the criminal action.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.
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