ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 222
(By Senators Ross, Kessler and Anderson)
____________
[Originating in the Committee on Judiciary;
reported February 17, 1999.]
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A BILL to amend and reenact sections three, seven, twelve,
thirteen, fourteen and fifteen, article one, chapter
seventeen-e of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to commercial
driver's licenses; revising definitions of serious traffic
violation and conviction; adding definitions of out-of-service
order and violation thereof; providing for disqualification
periods upon convictions of certain offenses and upon refusal
to take test for determining intoxication; making violation of
out-of-service order a disqualifying offense; clarifying when
licenses expire; clarifying certain alcohol-related offenses;
and providing for procedure upon certain arrests.
Be it enacted by the Legislature of West Virginia:
That sections three, seven, twelve, thirteen, fourteen and fifteen, article one, chapter seventeen-e of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted, all to read as follows:
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the
following definitions apply to this article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including,
but not limited to, ethanol, methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented
beverages (including sake or similar products) of any name or
description containing one half of one percent or more of alcohol
by volume, brewed or produced from malt, wholly or in part, or from
any substitute therefor;
(c) Distilled spirits or that substance known as ethyl
alcohol, ethanol, or spirits of wine in any form (including all
dilutions and mixtures thereof from whatever source or by whatever
process produced); or
(d) Wine of not less than one half of one percent of alcohol by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters
of blood; or
(b) The number of grams of alcohol per two hundred ten liters
of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters
of urine.
"Commercial driver license" means a license issued in
accordance with the requirements of this article to an individual
which authorizes the individual to drive a class of commercial
motor vehicle.
"Commercial driver license information system" is the
information system established pursuant to the federal commercial
motor vehicle safety act to serve as a clearinghouse for locating
information related to the licensing and identification of
commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued
pursuant to subsection (e) (d), section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or
used to transport passengers or property:
(a) If the vehicle has a gross vehicle weight rating as determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more
passengers, including the driver; or
(c) If the vehicle is transporting hazardous materials and is
required to be placarded in accordance with 49 C.F.R. part 172,
sub-part F.
"Commissioner" means the commissioner of motor vehicles of
this state.
"Controlled substance" means any substance so classified under
the provisions of chapter sixty-a of this code (uniform controlled
substances act) and includes all substances listed on Schedules I
through V, article two of said chapter sixty-a, as they may be
revised from time to time.
"Conviction" means the final judgment in a judicial or
administrative proceeding or a verdict or finding of guilty, a plea
of guilty, a plea of nolo contendere, an implied admission of guilt
or a forfeiture of bond or collateral upon a charge of a
disqualifying offense, as a result of proceedings upon any
violation of the requirement of this article.
"Division Department" means the department division of motor
vehicles.
"Disqualification" means a prohibition against driving a commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of
a motor vehicle in any place open to the general public for
purposes of vehicular traffic. For purposes of sections twelve,
thirteen and fourteen of this article "drive" includes operation or
physical control of a motor vehicle anywhere in this state.
"Driver" means any person who drives, operates or is in
physical control of a commercial motor vehicle, in any place open
to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver license.
"Driver license" means a license issued by a state to an
individual which authorizes the individual to drive a motor vehicle
of a specific class.
"Employee" means a person who is employed by an employer to
drive a commercial motor vehicle, including independent
contractors. An employee who is self-employed by himself or
herself as a commercial motor vehicle driver must comply with both
the requirements of this article pertaining to employees and
employers.
"Employer" means any person, including the United States, a
state, or a political subdivision of a state, who owns or leases a
commercial motor vehicle, or assigns a person to drive a commercial motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle
registered to the farm owner or entity operating the farm and used
exclusively in the transportation of agricultural or horticultural
products, livestock, poultry and dairy products from the farm or
orchard on which they are raised or produced to markets, processing
plants, packing houses, canneries, railway shipping points and cold
storage plants and in the transportation of agricultural or
horticultural supplies and machinery to such farms or orchards to
be used thereon.
"Farmer" includes owner, tenant, lessee, occupant or person in
control of the premises used substantially for agricultural or
horticultural pursuits, who is at least eighteen years of age with
two years licensed driving experience.
"Farmer vehicle driver" means the person employed and
designated by the "farmer" to drive a "farm vehicle" as long as
driving is not his sole or principal function on the farm, who is
at least eighteen years of age with two years licensed driving
experience.
"Gross combination weight rating (GCWR)" means the value
specified by the manufacturer as the loaded weight of a combination
(articulated) vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR of the
power unit and the total weight of the towed unit and any load
thereon.
"Gross vehicle weight rating (GVWR)" means the value specified
by the manufacturer as the loaded weight of a single vehicle. In
the absence of a value specified by the manufacturer the GVWR will
be determined by the total weight of the vehicle and any load
thereon.
"Hazardous materials" has the meaning as that found in Section
103 of the Hazardous Materials Transportation Act (49 App. U.S.C.
1801 5101 et seq. (1998)).
"Motor vehicle" means every vehicle which is self-propelled,
and every vehicle which is propelled by electric power obtained
from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against
driving a commercial motor vehicle as a result of a determination
by a federal agency or the public service commission, pursuant to
chapter twenty-four-a of this code, that: (1) The continued use of
a commercial motor vehicle may result in death, serious injury or
severe personal injury; or (b) the continued actions by the driver
of a commercial motor vehicle poses an imminent hazard to public
safety.
"Violation of an out-of-service order" means: (a) The
operation of a commercial motor vehicle during the period the
driver was placed out of service; or (b) the operation of a
commercial motor vehicle by a driver after the vehicle was placed
out of service and before the required repairs are made.
"Serious traffic violation" means:
(a) Operating a motor vehicle under the influence of alcohol
or a controlled substance in violation of the provisions of section
two, article five, chapter seventeen-c of this code;
(b) Failure to stop and render aid and provide required
information after involvement in a motor vehicle accident resulting
in death, injury or property damage, as provided in section five,
article three, chapter seventeen-b and sections one through five,
inclusive, article four, chapter seventeen-c of this code;
(c) A felony in the commission of which a motor vehicle is
used, as stated in subsection (2), section five, article three,
chapter seventeen-b of this code;
(d) Excessive speeding defined as fifteen miles per hour in
excess of all posted limits;
(e) (b) Reckless driving as defined in section three, article
five, chapter seventeen-c of this code including erratic lane
changes and following the vehicle ahead too closely;
(f) (c) A violation of state or local law relating to motor
vehicle traffic control (other than a parking violation) arising in
connection with a fatal traffic accident. Vehicle weight and
vehicle defects are excluded as serious traffic violations; or
(g) Violation of an out-of-service order; or
(h) (d) Any other serious violations as may be determined by
the U. S. Secretary of Transportation.
"State" means a state of the United States and the District of
Columbia.
"Tank vehicle" means any commercial motor vehicle that is
designed to transport any liquid or gaseous materials within a tank
that is either permanently or temporarily attached to the vehicle
or the chassis. Such vehicles include, but are not limited to,
cargo tanks and portable tanks, as defined in Part 171 of Title 49
C.F.R. Part 171 (1998). However, this definition does not include
portable tanks having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving
the road test, a determination, by the official filing the accident
report, of fault as evidenced by an indication of contributing
circumstances in the accident report.
§17E-1-7. Commercial driver's license required; disqualification
for driving without valid license.
(a) On or after the first day of April, one thousand nine
hundred ninety-two, except when driving under a commercial driver's
instruction permit accompanied by the holder of a commercial
driver's license valid for the vehicle being driven, no person may
drive a commercial motor vehicle unless the person holds a
commercial driver's license and applicable endorsements valid for
the vehicle they are driving.
(b) No person may drive a commercial motor vehicle while their
driving privilege is suspended, revoked, canceled, or expired,
while subject to a disqualification, or in violation of an
out-of-service order.
(c) Drivers of a commercial motor vehicle must have a
commercial driver's license in their possession at all times while
driving.
(d) The commissioner shall suspend for a period of ninety
days the driving privileges of any person who is convicted of
operating a commercial motor vehicle without holding a valid
commercial driver's license and the applicable endorsements valid
for the vehicle he or she is driving or for any conviction for
operating a commercial motor vehicle while disqualified from
operating a commercial motor vehicle. Any person not holding a
commercial driver's license who is convicted of an offense that requires disqualification from operating a commercial motor vehicle
shall also be disqualified from eligibility for a commercial
driver's license for the same time periods as prescribed in federal
law or rule or this chapter for commercial driver's license
holders.
§17E-1-12. Classifications, endorsements and restrictions.
Commercial driver's licenses may be issued, with the following
classifications, endorsements and restrictions; the holder of a
valid commercial driver's license may drive all vehicles in the
class for which that license is issued, and all lesser classes of
vehicles and vehicles which require an endorsement, unless the
proper endorsement appears on the license:
(a) Classifications. --
(1) Class A - Any combination of vehicles with a gross
combined vehicle weight rating of twenty-six thousand one pounds or
more, provided the gross vehicle weight rating of the vehicle(s)
being towed is in excess of ten thousand pounds.
(2) Class B - Any single vehicle with a gross vehicle weight
rating of twenty-six thousand one pounds or more, and any such
vehicle towing a vehicle not in excess of ten thousand pounds.
(3) Class C - Any single vehicle or combination vehicle with
a gross vehicle weight rating of less than twenty-six thousand one pounds or any such vehicle towing a vehicle with a gross vehicle
weight rating not in excess of ten thousand pounds comprising:
(A) Vehicles designed to transport sixteen or more passengers,
including the driver; and
(B) Vehicles used in the transportation of hazardous materials
which requires the vehicle to be placarded under 49 C.F.R., Part
172, sub-part F.
(b) Endorsements and restrictions. -- The commissioner upon
issuing a commercial driver's license shall have the authority to
impose such endorsements or restrictions as the commissioner may
determine to be appropriate to assure the safe operation of a motor
vehicle, and to comply with the federal Motor Vehicle Act of 1986
and federal rules implementing such act.
(c) Applicant record check. -- Before issuing a commercial
driver's license, the commissioner must obtain driving record
information through the commercial driver's license information
system, the national driver register and from each state in which
the person has been commercially licensed.
(d) Notification of license issuance. -- Within ten days after
issuing a commercial driver's license, the commissioner shall
notify the commercial driver's license information system of that fact, providing all information required to ensure identification
of the person.
(e) Expiration of license. --
(1) The commercial driver's license shall expire four years
from date of issuance.
(2) After the thirtieth day of June, one thousand nine hundred
ninety-six, the following shall apply:
(A) Every commercial driver's license issued to persons who
have attained their twenty-first birthday shall expire on the last
day of the month in which the applicant's birthday occurs in those
years in which the applicant's age is evenly divisible by five.
Except as provided in paragraph (B) subdivision (2) of this
subdivision subsection, no commercial driver's license may be
issued for less than three years nor more than seven years and such
commercial driver's license shall be renewed in the month in which
the applicant's birthday occurs and shall be valid for a period of
five years, expiring in the month in which the applicant's birthday
occurs and in a year in which the applicant's age is evenly
divisible by five.
(B) (2) Every commercial driver's license issued to persons
who have not attained their twenty-first birthday shall expire on
the last day of the month in the year in which the applicant attains the age of twenty-one years.
(3) Commercial driver's licenses held by any person in the
armed forces which expire while that person is on active duty shall
remain valid for thirty days from the date on which that person
reestablishes residence in West Virginia.
(4) Any person applying to renew a commercial driver's license
which has been expired for two years or more must follow the
procedures for an initial issuance of a commercial driver's
license, including the testing provisions.
(f) License renewal procedures. -- When applying for renewal
of a commercial driver's license, the applicant must complete the
application form and provide updated information and required
certifications. If the applicant wishes to retain a hazardous
materials endorsement, the written test for a hazardous materials
endorsement must be taken and passed.
§17E-1-13. Disqualification and cancellation.
(a) Disqualification offenses. -- Any person is disqualified
from driving a commercial motor vehicle for a period of not less
than one year if convicted of a first violation of:
(1) Driving a commercial motor vehicle under the influence of
alcohol or a controlled substance;
(2) Driving a commercial motor vehicle while the person's alcohol concentration of the person's blood, or breath or urine is
four hundredths of one percent or more, by weight;
(3) Leaving the scene of an accident involving a commercial
motor vehicle driven by the person;
(4) Using a commercial motor vehicle in the commission of any
felony as defined in this article: Provided, That the commission
of any felony involving the manufacture, distribution, or
dispensing of a controlled substance, or possession with intent to
manufacture, distribute or dispense a controlled substance falls
under the provisions of subsection (d) (e) of this section;
(5) Refusal to submit to a test to determine the driver's
alcohol concentration while driving a commercial motor vehicle.
In addition, the conviction of any of the following offenses
as an operator of any vehicle is a disqualification offense:
(1) (6) Manslaughter or negligent homicide resulting from the
operation of a motor vehicle as defined under the provisions of in
section five, article three, chapter seventeen-b, and section one,
article five, chapter seventeen-c of this code;
(2) (7) Driving while license is suspended or revoked, as
defined under the provisions of in section three, article four,
chapter seventeen-b of this code;
(3) (8) Perjury or making a false affidavit or statement under oath to the department of motor vehicles, as defined under the
provisions of in subsection (4), section five, article three, and
section two, article four, chapter seventeen-b of this code.
If any of the above violations occurred while transporting a
hazardous material required to be placarded, the person is
disqualified for a period of not less than three years for a first
violation.
(b) A person is disqualified for life if convicted of two or
more violations of any of the offenses specified in subsection (a)
of this section, or any combination of those offenses, arising from
two or more separate incidents.
(c) The commissioner may issue rules establishing guidelines,
including conditions, under which a disqualification for life under
subsection (b) of this section may be reduced to a period of not
less than ten years.
(d) A person is disqualified from driving a commercial motor
vehicle for life who uses a commercial motor vehicle in the
commission of any felony involving the manufacture, distribution or
dispensing of a controlled substance, or possession with intent to
manufacture, distribute or dispense a controlled substance.
(e) A person is disqualified from driving a commercial motor
vehicle for a period of not less than sixty days if convicted of two serious traffic violations, or one hundred twenty days if
convicted of three serious violations, committed in a commercial
motor vehicle arising from separate incidents occurring within a
three-year period.
(f) In addition, in accordance with the provision of 49 C.F.R.
§391.15 and §383.15 (1998), a conviction of violating an out-of-
service order is a disqualifying offense. For the first offense,
the period of disqualification shall be for ninety days. For the
second offense within a ten-year period for violations in separate
incidents, the period of disqualification shall be for a period of
one year. For the third or subsequent offense within a ten-year
period for violations in separate incidents, the period of
disqualification shall be for a period of three years. If the
violation of the out-of-service order occurred while the person was
operating a commercial motor vehicle transporting hazardous
material required to be placarded under the Hazardous
Transportation Act (49 U.S.C. §5101 et seq.) or while operating a
motor vehicle designed to transport sixteen or more passengers
including the driver, the period of disqualification for the first
offense shall be for one hundred and eighty days. For the second or
subsequent offense within a ten-year period for violations in
separate incidents, the period of disqualification shall be for three years.
(f) (g) A person is disqualified from driving a commercial
motor vehicle if he or she has failed to pay overdue child support
or comply with subpoenas or warrants relating to paternity or child
support proceedings, if a circuit court has ordered the suspension
of the commercial driver's license as provided in article five-a,
chapter forty-eight-a of this code and the child support
enforcement division has forwarded to the division a copy of the
court order suspending the license, or has forwarded its
certification that the licensee has failed to comply with a new or
modified order that stayed the suspension and provided for the
payment of current support and any arrearage due. A
disqualification under this section shall continue until the
division has received a court order restoring the license or a
certification by the child support enforcement division that the
licensee is complying with the original support order or a new or
modified order that provides for the payment of current support and
any arrearage due.
(g) (h) After suspending, revoking or canceling a commercial
driver's license, the department division shall update its records
to reflect that action within ten days.
§17E-1-14. Commercial drivers prohibited from operating with any alcohol in system; driving with blood alcohol concentration of
four hundredths of one percent or more; refusal of preliminary
breath test to determine alcohol content of blood; criminal
penalties.
(a) In addition to any other penalties provided by this code,
any person who
(1) Drives, operates or is in physical control of a commercial
motor vehicle while having any measurable alcohol in his or her
system; or
(2) Drives drives, operates or is in physical control of a
commercial motor vehicle while having an alcohol concentration in
his or her blood, breath or urine of four hundredths of one percent
or more, by weight; or,
(b) Upon conviction of an offense described in subsection (a)
of this section:
(1) For a violation of subdivision (1) thereof, such person
shall be fined not more than one hundred dollars; for a second
offense of subdivision (1) thereof, such person shall be fined not
less than one hundred dollars nor more than three hundred dollars
or confined in the county jail for a period not to exceed thirty
days, and, for a third or any subsequent offense, shall be fined
not less than five hundred dollars nor more than one thousand dollars and shall be confined in the county jail for a period of
time of not less than twenty-four hours and not more than thirty
days.
(2) For a violation of subdivision (2) thereof, such person is
guilty of a misdemeanor, and, upon conviction thereof, shall be
imprisoned confined in the county jail for not less than twenty-
four hours nor more than six months, and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person violating the provisions of subdivision (2) thereof shall
be, for the convicted of a second or any subsequent offense guilty
of a misdemeanor, and, upon conviction thereof, under the
provisions of this subsection shall be imprisoned confined 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.
(c) (b) A person who violates the provisions of subdivision
(2), subsection (a) of this section shall be taken immediately
before a magistrate or court within the county in which the offense
charged is alleged to have been committed and who has jurisdiction
of the offense treated in the same manner set forth in section
three, article nineteen, chapter seventeen-c of this code, as if he or she had been arrested for driving under the influence of alcohol
or of any controlled substance.
(d) (c) In addition to any other penalties provided by this
code, a person who drives, operates or is in physical control of a
commercial motor vehicle having any measurable alcohol in such
person's system or who refuses to take a preliminary breath test to
determine such person's blood alcohol content as provided by
section fifteen of this article must be placed out of service for
twenty-four hours by the arresting law-enforcement officer.
§17E-1-15. Implied consent requirements for commercial motor
vehicle drivers; disqualification for driving with blood
alcohol concentration of four hundredths of one percent or
more, by weight.
(a) A person who drives a commercial motor vehicle within this
state is deemed to have given consent, subject to provisions of
section four, article five, chapter seventeen-c of this code, to
take a test or tests of that person's blood, breath or urine for
the purpose of determining that person's alcohol concentration, or
the presence of other drugs.
(b) A test or tests may be administered at the direction of a
law-enforcement officer, who after lawfully stopping or detaining
the commercial motor vehicle driver, has reasonable cause to believe that driver was driving a commercial motor vehicle while
having alcohol in his or her system.
(c) A person requested to submit to a test as provided in
subsection (a) of this section must be warned by the law- enforcement officer requesting the test that a refusal to submit to
the test will result in that person being disqualified from
operating a commercial motor vehicle under section fifteen or
thirteen of this article.
(d) If the person refuses testing, or submits to a test which
discloses an alcohol concentration of four hundredths of one
percent or more, by weight, that law-enforcement officer must
submit a sworn report to the division of motor vehicles certifying
that the test was requested pursuant to subsection (a) of this
section and that the person refused to submit to testing, or
submitted to a test which disclosed an alcohol concentration of
four hundredths of one percent or more, by weight.
(e) Upon receipt of the sworn report of a law-enforcement
officer submitted under subsection (d) of this section, the
commissioner must enter an order disqualify disqualifying the
driver from driving a commercial motor vehicle under section
thirteen of this article for one year.
(NoteOTE: The purpose of this bill is to establish an administrative penalty for persons who are convicted of the offense
of operating a commercial motor vehicle in violation of an out-of- service order. The bill also provides for an administrative
penalty for persons convicted of operating a commercial motor
vehicle without the proper license or endorsement for the type of
vehicle being operated. The passage of this legislation would put
West Virginia in compliance with federal rules governing the
sanctions for violating the Federal Commercial Motor Vehicle Safety
Act.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)