Senate Bill No. 333
(By Senators Beach, Klempa, Minard, Williams and Plymale)
[Introduced January 28, 2011; referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §17-17B-1, §17-17B-2, §17-17B-3, §17-17B-4, §17-17B-5, §17-17B-6, §17-17B-7, §17-17B-8 and §17-17B-9, all relating to DOT-Parkways Authority collection enforcement; Safe and Efficient Parkways Act; authorizing the electronic enforcement of collection of tolls; establishing penalties for nonpayment and damage to facilities; keeping certain information collected confidential and not subject to the Freedom of Information Act; allowing limited restricted and confidential access to certain information pursuant to subpoenas and court orders on a strictly confidential basis; granting rule-making authority; and defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17-17B-1, §17-17B-2, §17-17B-3, §17-17B-4, §17-17B-5, §17-17B-6, §17-17B-7, §17-17B-8 and §17-17B-9, all to read as follows:
ARTICLE 17B. ELECTRONIC TOLL COLLECTION.
§17-17B-1. Legislative findings and purpose; Short title; Definitions.
(a) The Legislature finds and declares that the use of electronic and video technology for parkways projects will benefit the citizens of the state by making parkways projects in the state safer and more efficient, by easing traffic congestion, by improving traffic flow, by furthering economic development and by promoting and enhancing more efficient commercial traffic and the shipment of goods in the state. This article shall be known as and may be cited as the “Safe and Efficient Parkways Act.”
(b) The following words and phrases have the following meanings when used in this article:
(1) “Authority” or “Parkways Authority” means the West Virginia Parkways Authority established by article sixteen-a of this chapter.
(2) “Division” means the Division of Highways, except where another division is clearly identified.
(3) “Owner” means any person, corporation, firm, partnership, agency, association, organization or lessor who:
(A) Is the beneficial or equitable owner of the vehicle;
(B) Holds title to the vehicle;
(C) Is the registrant or coregistrant of the vehicle registered with the Division of Motor Vehicles or a comparable agency of another jurisdiction or uses the vehicle in its vehicle renting or leasing business; or
(D) Is a person entitled to the use and possession of a vehicle subject to a security interest held by another person.
(4) “Electronic toll collection” means a system of collecting tolls or charges that has or includes the capability of charging an account holder, owner or operator of a vehicle for the prescribed toll: (A) By electronic transmission of information between a device on a vehicle and a device located in a toll lane or otherwise used at a toll collection facility; or (B) by means of a video collection system.
(5) “Parkway project” shall have the meaning set forth in section five, article sixteen-a, chapter seventeen of this code, and further shall specifically include a highway project designated under sections five-a and five-b of article seventeen-a, chapter seventeen of this code.
(6) “Toll collection facility” means any facility, including all related structures, equipment, systems and software, used in connection with collecting or charging tolls for a parkway project, regardless of whether such facility is located on, over or adjacent to the highway included in the parkway project and regardless of whether such facility has toll lanes with toll booths and toll collection equipment that require passing vehicles to stop or slow down in order to pay a toll or uses additional or different methods, structures, technology and equipment in order to charge or collect tolls from some vehicles passing under or by the facility at highway speeds.
(7) “Video collection system” means a vehicle sensor, placed in a location to work in conjunction with a toll collection facility, that automatically produces a videotape or photograph, microphotograph or other recorded image of the front and rear portion, or both front and rear portion, of each vehicle at the time the vehicle is used or operated on the toll facility in order to charge or collect tolls or detect violations of this article. This phrase includes, without limitation: (i) Any other technology which identifies a vehicle by photographic, electronic or other method; and (ii) all related toll invoices, billing notices and other toll collection and violation enforcement efforts made using any such technology and information.
§17-17B-2. Electronic toll collection authorized.
Notwithstanding the provisions of article sixteen-a and section five-b, article seventeen-a of this chapter and section seven-a, article six, chapter seventeen-c of this code to the contrary, the collection of tolls and the enforcement of toll violations may be enforced by electronic toll collection as provided in this article and in rules promulgated by authority of this article. In connection with any toll road in this state authorized by section five-b, article seventeen-a of this chapter, and in addition to any powers granted to the Commissioner of Highways in this code, the commissioner, on behalf of the division, is authorized and empowered to enter into cooperative agreements and arrangements with any agency or other entity that handles or assists in the collection or enforcement of tolls on the adjacent state’s connecting toll highway, whereby that agency or entity would assist the division in the collection of tolls for the toll roads in this state, or enforcement of toll violations for the toll roads in this state, or both collection of tolls and enforcement of toll violations, utilizing electronic toll collection.
§17-17B-3. Liability of owner.
(a) All owners and operators of motor vehicles must pay the posted toll when on any toll road, highway or bridge authorized by article sixteen-a and section five-b, article seventeen-a of this chapter, either by paying the toll at a toll collection facility on such toll road, highway or bridge at the time of travel thereon or by paying the toll within the time prescribed for toll payment in a toll billing notice or invoice generated by an electronic toll collection system. These tolls may be collected by electronic toll collection. If an owner or operator of a vehicle fails to pay the prescribed toll when due, the owner of the vehicle is in violation of this article.
(b) If a violation occurs, the registration plate number of the vehicle as recorded by a video collection system establishes an inference for civil enforcement purposes that the owner of the vehicle was operating the vehicle at that time. The inference may be overcome if the owner:
(1) States that he or she was not operating the vehicle at the time of the violation;
(2) Identifies who was operating the vehicle; and
(3) Supplies the name and address, if known, of the operator of the vehicle.
(c) If an action or proceeding is commenced in a county other than that of the residence of the owner, a sworn statement that contains the information set forth in subsection (b) of this section is sufficient to overcome the inference.
(d) If the inference is overcome, the identified operator of the vehicle may be found to have violated this article.
(e) Nothing in this section prohibits: (i) A law-enforcement officer from issuing a citation to a person in control of a vehicle for a violation of this article or other provisions of law at the time of the violation; or (ii) the division or the Parkways Authority from issuing reminder notices or making other communications directly or indirectly in connection with toll collection efforts or efforts to enforce violations of this article, and the division and authority are authorized to use secondary sources of information and services including, but not limited to, services such as the National Change of Address Service or skip tracing services.
§17-17B-4. Imposition of liability.
If, as evidenced by a video collection system, a violation of this article occurs the following shall apply:
(1) The division or the Parkways Authority, as applicable, will prepare and mail a notice of violation as follows:
(A) The notice of violation must be sent by first class mail to each person listed as owner;
(B) The notice must be mailed at the address shown on the vehicle registration or at the address of the operator, as applicable.
(C) Notice shall be mailed no later than sixty days after:
(i) The violation;
(ii) The date the inference is overcome by the owner pursuant to subsection (b), section three of this article; or
(iii) The date that a lessor provides sufficient information to identify who is the actual owner.
(D) Personal service is not required.
(E) The notice must contain the following:
(i) Information advising the person of the violation, when and where it occurred and that the violation may be contested.
(ii) A warning advising the person receiving the notice:
(I) That failure to contest in the manner and time provided is an admission of liability;
(II) That a default judgment may be entered on the notice;
(III) That a violation of this article may subject the owner or operator to civil penalties, administrative fees, administrative hearing costs, and collection fees and costs as provided in this article; and
(IV) That failure to pay civil penalties imposed pursuant to this article shall result in denial of an application for a new or renewal of vehicle registration in this state.
(F) A manual or automatic record of mailing prepared in the ordinary course of business shall be prima facie evidence of the mailing of notice.
(2) If an owner of a vehicle receives a notice of violation of this article for any time period during which the vehicle was reported to a police department as having been stolen, that owner may not be liable if he or she provides a certified copy of the police report on the stolen vehicle to the division or the Parkways Authority within thirty days after receiving the notice of violation.
(3) If an owner of a vehicle receives a notice of violation of this article for any time period during which the vehicle was being leased or rented, that owner may not be liable if he or she provides a copy of the rental, lease or other contract document that contains the name and address of the lessee to the division or the Parkways Authority within thirty days after receiving the notice of violation.
(4) A certified report or a facsimile report of an authorized agent or employee of the division or the Parkways Authority reporting a violation of section three of this article based upon the recorded information obtained from a video collection system shall be prima facie evidence of the facts contained in the report and is admissible as an official record kept in the ordinary course of business.
(5) Notwithstanding any provision in the code to the contrary, videotapes, photographs, microphotographs or other recorded images, written records, reports or facsimiles prepared pursuant to this article are allowed and are for the exclusive use of the division or the Parkways Authority, as applicable, its authorized agents, its employees and law-enforcement officials for the purpose of discharging duties under this article. Except as may be necessary to enforce collection of tolls, civil penalties administrative fees, administrative hearing costs and collection fees and costs from persons to whom a notice of violation is sent as provided in this section, or to whom any billing invoice, reminder letter or other toll collection or violation enforcement communication is sent using electronic toll collections, all images and records created or retained as provided herein that identify individual vehicles or vehicle registration plates must be destroyed within sixty days after payment in full of the applicable toll. The images and records must be destroyed within sixty days after any toll collection or enforcement action under this article involving the images or records has been resolved. This information may not be considered a public record under chapter twenty-nine-b of this code. The information is not discoverable by court order and it may not be offered in evidence in any action or proceeding that is not directly related to a violation of this article or indemnification permitted by this article . However, these restrictions:
(A) Do not preclude a court of competent jurisdiction from issuing an order directing that the information be provided to law- enforcement officials if the information is reasonably described and is requested in connection with a criminal law enforcement action;
(B) Do not preclude the exchange of the information between any entities with jurisdiction over or that operate an electronic toll collection system in this state or any other jurisdiction within or outside of the United States; and
(C) Do not prohibit the use of information exclusively for the purpose of billing electronic toll collection account holders, deducting toll charges from the account of an account holder, enforcing toll collection provisions of this code or enforcing the provisions of an account holder agreement.
(6) Civil liability under this article is to be based upon a preponderance of evidence. Persons receiving a notice of violation as provided in this section must respond within thirty days of the date the notice was mailed by:
(A) remitting the amount of the unpaid toll and any administrative fee assessed; or,
(B) requesting an administrative hearing in accordance with rules promulgated by authority of this article.
In addition to any unpaid tolls and an administrative fee not to exceed $35 per notification, persons who are found to be liable in an administrative hearing shall be liable for the costs of the hearing, except where the judgment of the hearing examiner is reversed or set aside by a court of competent jurisdiction.
Failure to remit the unpaid toll, assessed administrative fees and assessed hearing costs or to request a hearing will result in entry of an administrative default judgment. The commissioner or the authority, as may be the case, may cause notice of the default judgment to be served on the person to whom the notice of violation was sent by certified mail, return receipt requested, advising the person that failure to pay such unpaid tolls, assessed administrative fees and assessed hearing costs within thirty days of receipt of the notice of default judgment will result in denial of an application for a new vehicle registration in this state. If the unpaid tolls, assessed administrative fees, and assessed administrative hearing costs are not paid as provided in the notice of default judgment, or if the judgment is not set aside by a court of competent jurisdiction, the commissioner or the authority may take all lawful actions to collect on the judgment and may notify the Commissioner of the Division of Motor Vehicles, who shall refuse the registration or renewal of registration of the vehicle in this state as provided in section eight of this article.
(7) Civil liability under this article is not a conviction and may not be made part of the owner’s motor vehicle operating record. It may not be considered in the provision of motor vehicle insurance coverage.
(8) A person found to have violated this article is liable for:
(A) The amount of the toll evaded or attempted to be evaded; if the amount can be determined or, if it cannot be determined, the minimum toll from the nearest point of entry on the toll facility to the actual point of exit;
(B) An administrative fee not to exceed $35 per notification;
(C) Administrative hearing costs assessed under this article; and
(D) Reasonable fees and costs of attempting to collect on a judgment under subsection (6) of section four of this article.
§17-17B-5. Placement of electronic toll collection device.
An electronic toll collection device that is properly affixed to the front windshield of a vehicle in accordance with division rules or is mounted elsewhere on a vehicle in accordance with mounting instructions included with the device, or is otherwise used in a manner that makes it operate as intended, is not a violation of section thirty-six, article fifteen, chapter seventeen-c of this code.
§17-17B-6. Privacy of electronic toll collection account holder information; subpoenas and court orders and related confidentiality protections.
(a) Except as provided in subsection (b) of this section, and notwithstanding any provision in the code to the contrary, videotapes, photographs, microphotographs, other recorded images, written records, reports or facsimiles prepared pursuant to this article are for the exclusive use of the division or the Parkways Authority, as applicable, its authorized agents, its employees and law-enforcement officials for the purpose of discharging duties under this article. This information includes names, addresses, account numbers, account balances, personal financial information, vehicle movement records and other information compiled from transactions with the account holders. The information may not be considered a public record under chapter twenty-nine-b of this code.
(b) Notwithstanding subsection (a) of this section, videotapes, photographs, microphotographs, other recorded images, written records, reports or facsimiles prepared and retained pursuant to this article may be discoverable pursuant to a properly issued subpoena or by an order of a court of competent jurisdiction directing that the information be produced in a civil or criminal action or proceeding: Provided, That any such information required to be produced in response to a properly issued subpoena or court order shall at all times be confidential and may not be disclosed by the division or the Parkways Authority other than in connection with, and only for the purposes of, the underlying action and subject to compliance with the provisions ofsubsection (c), (d) and (e) of this section.
(c) All information disclosed or produced by the division or the Parkways Authority in accordance with subsection (b) of this section shall be clearly marked “CONFIDENTIAL.” Any document or other material which is marked “CONFIDENTIAL” or the contents thereof, may only be used by a party to the underlying action or proceeding or a party’s attorney, expert witness, consultant or other person who is actively engaged in working on such action, and only for the purpose of the underlying action or proceeding and not for any other purpose. Prior to a party disclosing any document or other material marked as “CONFIDENTIAL,” or the contents thereof, to an attorney, expert witness, consultant or other person actively engaged in working on such action or proceeding, the party making disclosure must first inform such person that he or she is bound by the duty of confidentiality established under this section and such person to whom disclosure is to be made shall sign an acknowledgment that the information is and shall remain at all times confidential and that such person agrees to abide by the duty of confidentiality established under this section.
(d) Prior to the production of any information under this section with any court of competent jurisdiction, the division or the Parkways Authority shall file a motion with the court seeking to have the documents sealed and withheld from the public record throughout the action or proceeding.
(e) At the conclusion of the action or proceeding, all documents and other material marked as “CONFIDENTIAL” and any copies thereof, and all related notes and memoranda, shall promptly be returned to the division or the Parkways Authority, as applicable, and in any event, within thirty days following the conclusion of the action or proceeding.
§17-17B-7. Evading tolls; damaging, interfering with or obstructing video toll collection or infrastructure; violations and penalties.
(a) Any person who knowingly or intentionally evades or seeks to evade the payment of tolls, rents, fees or charges established by the division or the Parkways Authority for the use of any toll facility under the jurisdiction of those agencies is guilty of a misdemeanor and, upon conviction, shall be fined not more than $50.
(b) Any person who deliberately damages, defaces or obstructs a video collection system infrastructure or power supply with the intent to interfere with or alter or prevent the functioning of the system or electronic toll collection, or who obstructs a license plate or causes it to be unreadable by the video collection system, or who causes a transponder or other device used in an electronic toll system to be inoperable or unreadable thereby causing no toll to be charged, is guilty of a misdemeanor and, in addition to any other penalties provided by the code, and upon conviction, shall be fined not more than $500 and, if applicable, is additionally liable to the division or the Parkways Authority for all costs to repair the damaged, defaced or obstructed property.
§17-17B-8. Nonrenewal of vehicle registration; effect of civil or criminal violation.
Upon receipt of a notice from the commissioner or the authority that a vehicle owner or operator failed to pay tolls and costs in accordance with a notice of default judgment, the Commissioner of Motor Vehicles shall refuse to register, or renew the registration of any vehicle of which the person committing the violation is a registered owner or coowner until such time as the Commissioner of Motor vehicles receives notice from the commissioner or authority that all fees, penalties and costs imposed on that person pursuant to this article have been paid or satisfied.
§17-17B-9. Rule-making authority.
The Commissioner of the Division of Motor Vehicles, the Commissioner of Highways and the Parkways Authority shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of the code to implement this article.
NOTE: The purpose of this article is to authorize electronic collection and enforcement of tolls. The bill establishes penalties for nonpayment and damage to facilities. The bill keeps certain information collected confidential and not subject to the Freedom of Information Act. The bill allows certain limited restricted and confidential access to certain information pursuant to subpoenas and court orders on a strictly confidential basis. The bill also grants rule-making authority and defines terms.
This article is new; therefore, strike-throughs and underscoring have been omitted.