ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 372
(Senators Mitchell and Hunter, original sponsors)
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[Passed March 11, 2000; in effect ninety days from passage.]
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AN ACT to amend and reenact section four, article five, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section two, article five-a of said chapter, all relating
generally to the offense of driving under the influence of
alcohol, controlled substances or drugs; procedures for
conducting a secondary test; administrative sanctions for
driving under the influence; and amending the hearing
procedure for revocation of license.
Be it enacted by the Legislature of West Virginia:
That section four, article five, chapter seventeen-c of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section two, article
five-a of said chapter be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied consent to test; administration at direction of
law-enforcement officer; designation of type of test;
definition of law-enforcement officer.
Any person 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 a preliminary breath analysis
and a secondary chemical test of either his blood, breath or urine
for the purposes of determining the alcoholic content of his blood.
A preliminary breath analysis may be administered in accordance
with the provisions of section five of this article whenever a
law-enforcement officer has reasonable cause to believe a person to
have committed an offense prohibited by section two of this article
or by an ordinance of a municipality of this state which has the
same elements as an offense described in said section two of this
article. A secondary test of blood, breath or urine shall be
incidental to a lawful arrest and shall be administered at the
direction of the arresting law-enforcement officer having
reasonable grounds to believe the person to have committed an
offense prohibited by section two of this article or by an
ordinance of a municipality of this state which has the same
elements as an offense described in said section two of this article. The law-enforcement agency by which such law-enforcement
officer is employed shall designate which one of the aforesaid
secondary tests shall be administered: Provided, That if the test
so designated is a blood test and the person so arrested refuses to
submit to such blood test, then the law-enforcement officer making
such arrest shall designate in lieu thereof, either a breath or
urine test to be administered, and notwithstanding the provisions
of section seven of this article, such refusal to submit to a blood
test only shall not result in the revocation of the arrested
person's license to operate a motor vehicle in this state. Any
person to whom a preliminary breath test is administered who is
then arrested shall be given a written statement advising him that
his refusal to submit to the secondary chemical test finally
designated as provided in this section, will result in the
revocation of his license to operate a motor vehicle in this state
for a period of at least one year and up to life.
For the purpose of this article, the term "law-enforcement
officer" or "police officer" shall mean and be limited to: (1) Any
member of the department of public safety of this state; (2) any
sheriff and any deputy sheriff of any county; (3) any member of a
police department in any municipality as defined in section two,
article one, chapter eight of this code; (4) any conservation
officer of the division of natural resources; and (5) any special police officer appointed by the governor pursuant to the provisions
of section forty-one, article three, chapter sixty-one of this code
who has completed the course of instruction at a law-enforcement
training academy as provided for under the provisions of section
nine, article twenty-nine, chapter thirty of this code. Any law-
enforcement officer who has been properly trained in the
administration of any secondary chemical test which a law-
enforcement officer may conduct under this article, including, but
not limited to, certification by the division of health in the
operation of any equipment required for the collection and analysis
of a breath sample, may conduct such test at any location in the
county wherein the arrest is made that the equipment and the
facilities may be found. However, when the arresting officer lacks
such training, then any other law-enforcement officer who has
received training in the administration of the secondary chemical
test to be administered may, upon the request of such arresting
law-enforcement officer and in his presence, conduct such secondary
test and the results of such test may be used in evidence to the
same extent and in the same manner as if such test had been
conducted by such arresting law-enforcement officer. Only the
person actually administering or conducting such test shall be
competent to testify as to the results and the veracity of such
test.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§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 or suspended
under the provisions of section one of this article or section
seven, article five of this chapter, the commissioner 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 ten 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 ten 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 ten
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 ten 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 ten 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 ten hundredths of
one percent, by weight, the commissioner shall make specific
findings as o: (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 ten 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 ten
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) 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
alcohol concentration in the person's blood of ten 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 ten hundredths of one percent, 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 alcohol 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 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) 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
alcohol concentration in the person's blood of ten 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 the 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
alcohol concentration in the person's blood of ten 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 bodily 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 the 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 alcohol concentration in the
person's blood of ten 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 ten hundredths of one
percent or more, by weight, the commissioner shall revoke the
person's license for a period 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 the person.
(j) If, 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 ten hundredths of one
percent, 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 if the
commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the death, 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
the person.
(k) If, 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 blood of two hundredths of one percent
or more, by weight, but less than ten hundredths of one percent, 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 bodily injury to a person other than
himself or herself, and if the commissioner 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 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 the person.
(l) If the commissioner 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 ten hundredths of one percent, by weight, the commissioner
shall suspend the person's license for a period of sixty days: 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, the period of revocation shall be
for one year, or until the person's twenty-first birthday,
whichever period is longer.
(m) 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
alcohol concentration in the person's blood of ten 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
have on or within the motor vehicle another person who has not
reached his or her sixteenth birthday, the commissioner shall
revoke the person's license for a period of one year: 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 the person.
(n) 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 within the
ten years immediately preceding the date of arrest.
(o) 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 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 section four, article five of this chapter.
(p) If the commissioner 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 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) If the commissioner finds to the contrary with respect to
the above issues, the commissioner shall rescind his or her 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 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
supersedeas 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
supersedeas of the order exceed one hundred fifty days.
Notwithstanding the provisions of section four, article five,
chapter twenty-nine-a of this code, 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) 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.