Senate Bill No. 372
(By Senator Mitchell and Hunter)
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[Introduced February 2, 2000; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section two, article five-a, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to 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 two, article five-a, chapter seventeen-c of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
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operate a motor vehicle in this state has been revoked or suspended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 ten
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 said the 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 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.
unless the commissioner or the commissioner's authorized deputy or
agent and the person agree that the hearing may be held in some
other county.
(b) Any such hearing shall be held within twenty 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. 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 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 alcoholic 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 to: (1) Whether the arresting
law-enforcement officer had reasonable grounds to believe the person to have been driving while under the influence of alcohol,
controlled substances or drugs, or while having an alcoholic
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
alcoholic 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 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 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
alcoholic 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
alcoholic 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 alcoholic 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
alcoholic 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 alcoholic 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
alcoholic 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
alcoholic 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 entered 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. Jurisdiction for extraordinary relief
is in the Kanawha County circuit court. except that the The
commissioner shall may not stay enforcement of the order. and,
pending the appeal, the 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 thirty 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 sixteen forty-one, article fifteen two, chapter eleven
fifteen of this code, upon application for such funds to the
commission on drunk driving prevention.
NOTE: The purpose of this bill is to increase the time period when a hearing has to be requested from 10 days to 30 days and
increases the time when a hearing has to be held from 20 days to
180 days from the date of the hearing request in administrative DUI
cases. It also provides for hearings to be held in the Division of
Motor Vehicle offices in or near the county of arrest, provides and
enhanced penalty for repeat violations of zero alcohol content for
persons under the age of 21 years, allows for revocations arising
from the same offense to run concurrently and allows the Division
at least 60 days to provide circuit courts with hearing
transcripts. It also increases the amount of time allowed for a
stay of revocation pending a circuit court appeal from 30 days to
150 days.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.