Senate Bill No. 254
(By Senators Weeks and Minear)
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[Introduced January 24, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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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 5A.
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, or have been
convicted under section two, article five of this chapter. The
program shall include the establishment of a users fee for
persons participating in the program which shall be paid in
advance and deposited into the Driver's Rehabilitation Fund.
Except where specified otherwise, the use of the term "program"
in this section refers to the motor vehicle alcohol test and lock
program. The Commissioner of the Division of Motor Vehicles
shall propose legislative rules for promulgation in accordance
with the provisions of chapter twenty-nine-a of this code for the
purpose of implementing the provisions of this section. 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, the person is determined to be under the
influence of alcohol.
(b)(1) Any person whose license is revoked for the first
time pursuant to this article or the provisions of article five
of this chapter is eligible to participate in the program when
the person's minimum revocation period as specified by subsection
(c) of this section has expired and 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.
(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 is eligible to participate in the program after thirty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect or after the person's eighteenth birthday, whichever is
later. Before the commissioner approves a person to operate a
motor vehicle equipped with a motor vehicle alcohol test and lock
system, the person must agree to comply with the following
conditions:
(A) If not already enrolled, the person will enroll in and
complete the educational program provided for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational
program, any administrative costs and all costs assessed for any
suspension hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program under
this subsection may operate a motor vehicle unless approved to do
so by the commissioner.
(c) A person who participates in the program under
subdivision (1), subsection (b) of this section is subject to a
minimum revocation period and minimum period for the use of the
ignition interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section
one-a of this article for conviction of an offense defined in
subsection (d) or (f), section two, article five of this chapter
or pursuant to subsection (i), section two of this article, the
minimum period of revocation 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;
(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 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;
(3) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to
subsection (f), section two of this article, the minimum period
of revocation before the person is eligible for participation in
the test and lock program is twelve months and the minimum period
for the use of the ignition interlock device is two years;
(4) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b),
section two, article five of this chapter or pursuant to
subsection (g), section two of this article, the minimum period
of revocation is six months and the minimum period for the use of
the ignition interlock device is two years;
(5) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (c),
section two, article five of this chapter or pursuant to
subsection (h), section two of this article, the minimum period
of revocation for participation in the program is two months and
the minimum period for the use of the ignition interlock device
is one year;
(6) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (i),
section two, article five of this chapter or pursuant to
subsection (m), section two of this article, the minimum period
of revocation for participation in the program is two months and
the minimum period for the use of the ignition interlock device
is ten months;
(d) Notwithstanding any provision of the code to the
contrary, a person shall participate in the program if the person
is convicted under section two, article five of this chapter or the person's license is revoked under section two of this article
or section seven, article five of this chapter and the person was
previously either convicted or license was revoked under any
provision cited in this subsection within the past ten years.
The minimum revocation period for a person required to
participate in the program under this subsection is one year and
the minimum period for the use of the ignition interlock device
is two years, except that the minimum revocation period for a
person required to participate because of a violation of
subsection (l), section two of this article or subsection (h),
section two, article five of this chapter is two months and the
minimum period of participation is one year. The division will
add one year to the minimum period for the use of the ignition
interlock device for each additional previous conviction or
revocation within the past ten years. Any person required to
participate under this subsection must have an ignition interlock
device installed on every vehicle he or she owns or operates.
(e) An applicant for the test and lock program may not have
been convicted of any violation of section three, article four,
chapter seventeen-b of this code for driving while the
applicant's driver's license was suspended or revoked within the
six-month period preceding the date of application for admission
to the test and lock program; such is necessary for employment
purposes.
(f) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to the person, and the
person is required to exhibit on demand, a driver's license which
shall reflect that the person is restricted to the operation of a
motor vehicle which is equipped with an approved motor vehicle
alcohol test and lock system.
(g) The commissioner may petition the court that suspended
or revoked a person's driver's license to extend the minimum
period of revocation and the minimum period of participation in
the program for a person who violates the terms and conditions of
participation in the program as found in this section, or
legislative rule, or any agreement or contract between the
participant and the division or program service provider.
(h) A person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article who
has completed the educational program, and who has not violated
the terms required by the commissioner of the person's
participation in the program, is entitled to the reinstatement of
his or her driver's license six months from the date the person
is permitted to operate a motor vehicle by the Commissioner may
petition the court that suspended or revoked his or her driver's
license for restoration of his or her driver's license. 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 is entitled to
expungement under the provisions of this subsection only once.
The expungement shall be accomplished by physically marking the
records to show that the records have been expunged and by
securely sealing and filing the records. Expungement has the
legal effect as if the suspension never occurred. The records
may not be disclosed or made available for inspection and in
response to a request for record information, the commissioner
shall reply that no information is available. Information from
the file may be used by the commissioner for research and
statistical purposes so long as the use of the information does
not divulge the identity of the person.
(i) In addition to any other penalty imposed by this code,
any person who operates a motor vehicle not equipped with an
approved motor vehicle alcohol test and lock system during such
person's participation in the motor vehicle alcohol test and lock
program is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for a period not
less than one month nor more than six months and fined not less
than one hundred dollars nor more than five hundred dollars. Any
person who attempts to bypass the alcohol test and lock system
is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail not more than six months
and fined not less than one hundred dollars nor more than one
thousand dollars: Provided, That notwithstanding any provision
of this code to the contrary, a person enrolled and participating
in the test and lock program may operate a motor vehicle solely
at his or her job site, if such is a condition of his or her
employment. For the purpose of this section, job site does not
include any street or highway open to the use of the public for
purposes of vehicular traffic.
§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.