Senate Bill No. 27
(By Senator Blatnik)
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[Introduced February 10, 1993;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section three, article four, chapter
seventeen-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections two and eight, article five, chapter seventeen-c of
said code; and to amend and reenact sections one, one-a and
two, article five-a of said chapter, all relating to
reducing the amount of acceptable alcohol in the blood while
driving from ten hundredths of one percent to eight
hundredths of one percent, by weight.
Be it enacted by the Legislature of West Virginia:
That section three, article four, chapter seventeen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections two and eight,
article five, chapter seventeen-c of said code be amended and
reenacted; and that sections one, one-a and two, article five-a
of said chapter be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the influence of
alcohol, controlled substances or drugs, or while having
alcoholic concentration in the blood of eight hundredths of
one percent or more, by weight, or for refusing to take
secondary chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) of this
section any person who drives a motor vehicle on any public
highway of this state at a time when his privilege so to do has
been lawfully suspended or revoked shall, for the first offense,
be guilty of a misdemeanor, and, upon conviction thereof, shall
be imprisoned in the county jail for forty-eight hours and, in
addition to such mandatory jail sentence, shall be fined not less
than fifty dollars nor more than five hundred dollars; for the
second offense, such person shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be punished by imprisonment
in the county jail for a period of ten days and, in addition to
such mandatory jail sentence, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the third
or any subsequent offense, such person shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be imprisoned in
the county jail for six months and, in addition to such mandatory
jail sentence, shall be fined not less than one hundred fifty
dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any publichighway of this state at a time when his privilege so to do has
been lawfully revoked for driving under the influence of alcohol,
controlled substances or other drugs, or while having an
alcoholic concentration in his blood of ten eight hundredths of
one percent or more, by weight, or for refusing to take a
secondary chemical test of blood alcohol content shall, for the
first offense, be guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for six months
and in addition to such mandatory jail sentence, shall be fined
not less than one hundred dollars nor more than five hundred
dollars; for the second offense, such person shall be guilty of
a misdemeanor, and, upon conviction thereof, shall be punished by
imprisonment in the county jail for a period of one year and, in
addition to such mandatory jail sentence, shall be fined not less
than one thousand dollars nor more than three thousand dollars;
for the third or any subsequent offense, such person shall be
guilty of a felony, and, upon conviction thereof, shall be
imprisoned in the penitentiary for not less than one year nor
more than three years and, in addition to such mandatory jail
sentence, shall be fined not less than three thousand dollars nor
more than five thousand dollars.
(c) The department upon receiving a record of the conviction
of any person under this section upon a charge of driving a
vehicle while the license of such person was lawfully revoked
shall extend the period of such suspension for an additional like
period and if the conviction was upon a charge of driving whilea license was revoked lawfully the department shall not issue a
new license for an additional period of one year from and after
the date such person would otherwise have been entitled to apply
for a new license.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes the death of any
person within one year next following such act or failure; and
(3) Commits such act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to such
death, shall be guilty of a felony, and, upon conviction thereof,shall be imprisoned in the penitentiary for not less than one nor
more than ten years and shall be fined not less than one thousand
dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes the death of any
person within one year next following such act or failure, shall
be guilty of a misdemeanor, and, upon conviction thereof, shall
be imprisoned in the county jail for not less than ninety days
nor more than one year and shall be fined not less than five
hundred dollars nor more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of such
vehicle, which act or failure proximately causes bodily injury to
any person other than himself, shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be imprisoned in the county
jail for not less than one day nor more than one year, which jail
term shall include actual confinement of not less than twenty-
four hours, and shall be fined not less than two hundred dollars
nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while:
(A) He is under the influence of alcohol, or
(B) He is under the influence of any controlled substance,
or
(C) He is under the influence of any other drug, or
(D) He is under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) He has an alcohol concentration in his blood of ten
eight hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for not less thanone day nor more than six months, which jail term shall include
actual confinement of not less than twenty-four hours, and shall
be fined not less than one hundred dollars nor more than five
hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in
this state, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be imprisoned in the county jail for
not less than one day nor more than six months, which jail term
shall include actual confinement of not less than twenty-four
hours, and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his vehicle to be driven in this state
by any other person who is:
(A) Under the influence of alcohol, or
(B) Under the influence of any controlled substance, or
(C) Under the influence of any other drug, or
(D) Under the combined influence of alcohol and any
controlled substance or any other drug, or
(E) Has an alcohol concentration in his blood of ten eight
hundredths of one percent or more, by weight; and
(2) Shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be imprisoned in the county jail for not more than
six months and shall be fined not less than one hundred dollars
nor more than five hundred dollars.
(g) Any person who:
Knowingly permits his vehicle to be driven in this state by
any other person who is an habitual user of narcotic drugs or
amphetamine or any derivative thereof, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be imprisoned in
the county jail for not more than six months and shall be fined
not less than one hundred dollars nor more than five hundred
dollars.
(h) A person violating any provision of subsection (b), (c),
(d), (e), (f) or (g) of this section shall, for the second
offense under this section, be guilty of a misdemeanor, and, upon
conviction thereof, shall be imprisoned in the county jail for a
period of not less than six months nor more than one year, and
the court may, in its discretion, impose a fine of not less than
one thousand dollars nor more than three thousand dollars.
(i) A person violating any provision of subsection (b), (c),
(d), (e), (f) or (g) of this section shall, for the third or any
subsequent offense under this section, be guilty of a felony,
and, upon conviction thereof, shall be imprisoned in the
penitentiary for not less than one nor more than three years, and
the court may, in its discretion, impose a fine of not less than
three thousand dollars nor more than five thousand dollars.
(j) For purposes of subsections (h) and (i) of this section
relating to second, third and subsequent offenses, the following
types of convictions shall be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsections (a),
(b), (c), (d), (e) or (f) of the prior enactment of this section
for an offense which occurred on or after the first day of
September, one thousand nine hundred eighty-one, and prior to the
effective date of this section;
(2) Any conviction under the provisions of subsection (a) or
(b) of the prior enactment of this section for an offense which
occurred within a period of five years immediately preceding the
first day of September, one thousand nine hundred eighty-one;
(3) 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 this section, which offense occurred after
June tenth, one thousand nine hundred eighty-three; and
(4) 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 periods for prior offenses,
notwithstanding the fact that there has not been a final
adjudication of the charges for the alleged previous offense. In
such 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.
(k) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any
person permitted to drive as described under subsection (f) or
(g) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug shall not constitute a
defense against any charge of violating subsection (a), (b), (c),
(d), (e), (f) or (g) of this section.
(l) For purposes of this section, the term "controlled
substance" shall have the meaning ascribed to it in chapter
sixty-a of this code.
(m) The sentences provided herein upon conviction for a
violation of this article are mandatory and shall not be 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.
(n) The reenactment of this section in the regular session
of the Legislature during the year one thousand nine hundred
eighty-three, shall not in any way add to or subtract from the
elements of the offenses set forth herein and earlier defined in
the prior enactment of this section.
§17C-5-8. Interpretation and use of chemical test.
Upon trial for the offense of driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs, or upon the trial of any civil or criminal
action arising out of acts alleged to have been committed by anyperson driving a motor vehicle while under the influence of
alcohol, controlled substances or drugs, evidence of the amount
of alcohol in the person's blood at the time of the arrest or of
the acts alleged, as shown by a chemical analysis of his blood,
breath or urine, is admissible, if the sample or specimen was
taken within two hours from and after the time of arrest or of
the acts alleged, and shall give rise to the following
presumptions or have the following effect:
(a) Evidence that there was, at that time, five hundredths
of one percent or less, by weight, of alcohol in his blood, shall
be prima facie evidence that the person was not under the
influence of alcohol;
(b) Evidence that there was, at that time, more than five
hundredths of one percent and less than ten eight hundredths of
one percent, by weight, of alcohol in the person's blood shall be
relevant evidence, but it is not to be given prima facie effect
in indicating whether the person was under the influence of
alcohol;
(c) Evidence that there was, at that time, ten eight
hundredths of one percent or more, by weight, of alcohol in his
blood, shall be admitted as prima facie evidence that the person
was under the influence of alcohol.
Percent by weight of alcohol in the blood shall be based
upon milligrams of alcohol per one hundred cubic centimeters of
blood.
A chemical analysis of a person's blood, breath or urine, inorder to give rise to the presumptions or to have the effect
provided for in subdivisions (a),(b) and (c) of this section,
must be performed in accordance with methods and standards
approved by the state department of health. A chemical analysis
of blood or urine to determine the alcoholic content of blood
shall be conducted by a qualified laboratory or by the state
police scientific laboratory of the criminal identification
bureau of the department of public safety.
The provisions of this article shall not limit the
introduction in any administrative or judicial proceeding of any
other competent evidence bearing on the question of whether the
person was under the influence of alcohol, controlled substances
or 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 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 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
license to operate a motor vehicle in this state should berevoked because he 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 alcoholic concentration in
his blood of ten eight hundredths of one percent or more, by
weight, or did refuse to submit to any designated secondary
chemical test.
(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 two of
article five, shall take the person's license at the time of
arrest and issue a temporary license, to be prescribed by the
department of motor vehicles, pending a request for an
administrative hearing, and shall report to the commissioner of
the department of motor vehicles by written statement within
forty-eight hours the name and address of the person so arrested.
Such 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 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 orthing, 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 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 two of article five, and that the results of the tests
indicate that at the time the test or tests were administered the
person had, in his blood, an alcohol concentration of ten eight
hundredths of one percent or more, by weight, or at the time the
person was arrested he was under the influence of alcohol,
controlled substances or drugs, the commissioner shall make and
enter an order revoking such person's license to operate a motor
vehicle in this state. A copy of such order shall be forwarded
to such person by registered or certified mail, return receipt
requested, and shall contain the reasons for the revocation and
the revocation periods provided for in section two of this
article. No 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 asan offense described in said section two of article five, because
such 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 alcoholic concentration in
his blood of ten eight hundredths of one percent or more, by
weight, and if such person does not act to appeal such conviction
within the time periods described in subsection (b) of this
section, such person's license to operate a motor vehicle in this
state shall be revoked 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 two of article five, 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 such transcript 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 such 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 forwardsuch 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, 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 two of article five, because such 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 alcoholic concentration in his blood of ten eight
hundredths of one percent or more, by weight, the commissioner
shall make and enter an order revoking such person's license to
operate a motor vehicle in this state. The order shall contain
the reasons for the revocation and the revocation 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 section two of this
article. 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 and that the sole purpose for thehearing 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
such order shall be forwarded to such person by registered or
certified mail, return receipt requested. No revocation shall
become effective until ten days after receipt of a copy of such
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) For the purposes of this section, a person is convicted
when such person enters a plea of guilty or is found guilty by a
court or jury.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked under the
provisions of section one of this article or section seven,
article five of this chapter, the commissioner of motor vehicles
shall extend the temporary license issued under section one of
this article, if applicable, and afford the person an opportunity
to be heard. Such written request must be filed with the
commissioner in person or by registered or certified mail, return
receipt requested, within ten days after receipt of a copy of the
order of revocation. The hearing shall be before said
commissioner or a hearing examiner retained by the commissionerwho shall rule on evidentiary issues and submit proposed findings
of fact and conclusions of law for the consideration of said
commissioner and all of the pertinent provisions of article five,
chapter twenty-nine-a of this code shall apply: Provided, That
in the case of a resident of this state the hearing shall be held
in the county wherein the arrest was made in this state unless
the commissioner or the commissioner's authorized deputy or agent
and such person agree that the hearing may be held in some other
county.
(b) Any such hearing shall be held within twenty 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 such hearing, and such policies shall be
enforced and applied to all parties equally. For the purpose of
conducting such 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 asubpoena to appear at such hearing without the necessity of
payment of fees by the division of motor vehicles. All subpoenas
and subpoenas duces tecum shall be issued and served within the
time and for the fees and shall be enforced, as specified in
section one, article five of said chapter twenty-nine-a, and all
of the said section one provisions dealing with subpoenas and
subpoenas duces tecum shall apply to subpoenas and subpoenas
duces tecum issued for the purpose of a hearing hereunder.
(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 such 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 ten eight hundredths of one percent or more, by weight,
or did refuse to submit to the designated secondary chemical
test.
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 amotor vehicle while having an alcohol concentration in the
person's blood of ten eight hundredths of one percent or more, 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. Such 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 alcoholic concentration in the person's
blood of ten eight hundredths of one percent or more, by weight,the commissioner shall make specific findings as to (1) whether
the arresting law-enforcement officer had reasonable grounds to
believe such person to have been driving while under the
influence of alcohol, controlled substances or drugs, or while
having an alcoholic concentration in the person's blood of ten
eight hundredths of one percent or more, by weight, (2) whether
such person was lawfully placed under arrest for an offense
involving driving under the influence of alcohol, controlled
substances or drugs, and (3) whether the tests, if any, were
administered in accordance with the provisions of this article
and article five of this chapter.
(f) If, 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
alcoholic concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner
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 further finds that
the influence of alcohol, controlled substances or drugs or the
alcoholic concentration in the blood was a contributing cause to
the death, the commissioner shall revoke the person's license for
a period of ten years: Provided, That if the commissioner has
previously suspended or revoked the person's license under theprovisions 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 such person.
(g) If, 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
alcoholic concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner
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 shall revoke the person's
license for a period of five years: Provided, That if the
commissioner has 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 such
person.
(h) If, 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
alcoholic concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner
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 causedbodily injury to a person other than himself or herself, the
commissioner shall revoke the person's license for a period of
two years: Provided, That if the commissioner has 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 has 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 such person.
(i) If the commissioner 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 alcoholic concentration in
the person's blood of ten 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 alcoholic concentration in his or
her blood of ten eight hundredths of one percent or more, by
weight, the commissioner shall revoke the person's license for aperiod of six months: Provided, That if the commissioner has
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 has 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 such person.
(j) For purposes of this section, where reference is made to
previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions
or revocations under this section or section one of this article:
(1) Any 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 withinthe ten years immediately preceding the date of arrest.
(k) In the case of a hearing wherein a person is accused of
refusing to submit to a designated secondary test, the
commissioner shall make specific findings as to (1) whether the
arresting law-enforcement officer had reasonable grounds to
believe such person had been driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs, (2) whether such 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 such 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 such
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 section four, article five of this
chapter.
(l) If the commissioner finds by a preponderance of the
evidence that (1) the arresting law-enforcement officer had
reasonable grounds to believe such person had been driving a
motor vehicle in this state while under the influence of alcohol,
controlled substances or drugs, (2) such 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) such person refused to submit
to the secondary chemical test finally designated, and (4) such
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 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.
(m) If the commissioner finds to the contrary with respect
to the above issues, the commissioner shall rescind the
commissioner's earlier order of revocation or shall reduce the
order of 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 such 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,
such person shall be entitled to judicial review as set forth in
chapter twenty-nine-a of this code, except that the commissioner
shall not stay enforcement of the order; and, pending such
appeal, the court may grant a stay or supersedeas of such order
only upon motion and hearing, and a finding by the court upon theevidence presented, that there is a substantial probability that
the appellant shall prevail upon the merits, and the appellant
will suffer irreparable harm if such order is not stayed:
Provided, That in no event shall the stay or supersedeas of such
order exceed thirty days.
(n) In any revocation pursuant to this section, if the
driver whose license is revoked had not reached the driver's
twenty-first birthday at the time of the conduct for which the
license is revoked, the driver's license shall be revoked until
the driver's twenty-first birthday, or the applicable statutory
period of revocation prescribed by this section, whichever is
longer.
(o) Funds for this section's hearing and appeal process may
be provided from the drunk driving prevention fund, as created by
section sixteen, article fifteen, chapter eleven of this code,
upon application for such funds to the commission on drunk
driving prevention.
NOTE: The purpose of this bill is to reduce the amount of
acceptable alcohol in the blood, while driving a motor vehicle,
from ten hundredths of one percent, by weight, to eight
hundredths of one percent, by weight.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.