H. B. 2305


(By Delegates Staton,

Wills and Amores)

[Introduced February 19, 2001; referred to the

Committee on the Judiciary then Finance.]





A BILL to repeal article five-a, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact article five, chapter seventeen-c of said code, relating to the recodification of the laws governing criminal offenses, criminal offenses and administrative sanctions for driving under the influence of alcohol, controlled substances or drugs.

Be it enacted by the Legislature of West Virginia:

That article five-a, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that article five, chapter seventeen-c of said code be amended and reenacted to read as follows:

ARTICLE 5. DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.

PART I. GENERAL PROVISIONS.

§17C-5-101. Phrases synonymous with driving under the influence of alcohol; validation of warrants and indictments.

(a) When used in this code, the terms or phrases "driving under the influence of intoxicating liquor," "driving or operating a motor vehicle while intoxicated," "for any person who is under the influence of intoxicating liquor to drive any vehicle," or any other similar term or phrase, shall be construed to mean and be synonymous with the term or phrase "drive a motor vehicle in this state while he or she is under the influence" as that term or phrase is used in this article.
(b) A warrant or indictment that charges or alleges an offense prohibited by the provisions of Part III of this article, and that uses any of the terms or phrases described in subsection (a) of this section, or another similar term or phrase, is not fatally defective if the warrant or indictment otherwise informs the accused person of the offense charged.
§17C-5-102. Municipal ordinances to contain same elements as offenses under this article; penalties in municipal ordinances required to conform to state penalties.

(a) Notwithstanding the provisions of section five, article twelve, chapter eight of this code, any municipal ordinance that defines an offense that involves a person driving a motor vehicle while he or she is under the influence of alcohol, controlled substances or drugs is null and void and of no effect unless the ordinance uses substantially similar terms and contains the same elements as an offense defined in Part III of this article.
(b) Notwithstanding the provisions of section one, article eleven, chapter eight of this code, any municipal ordinance that defines an offense that involves a person driving a motor vehicle while he or she is under the influence of alcohol, controlled substances or drugs must prescribe the same penalty for the offense that is prescribed for a similar offense defined under Part III of this article that contains the same elements.
PART II. DEFINITIONS.

§17C-5-201. Applicability of definitions.


For the purposes of this article the words or terms defined in this Part II have the meanings ascribed to them. These definitions are applicable unless a different meaning clearly appears from the context.
§17C-5-202. Definition; "controlled substance."

"Controlled substance" means a controlled substance as defined in chapter sixty-a of this code.
§17C-5-203. Definition; "in this state."

"In this state" means anywhere within the physical boundaries of this state, including, but not limited to, publicly maintained streets and highways, and subdivision streets or other areas not publicly maintained but nonetheless open to the use of the public for purposes of vehicular travel.
§17C-5-204. Definition; "law-enforcement officer" or "police officer."

"Law-enforcement officer" or "police officer" means and is limited to: (1) Any member of the West Virginia state police; (2) a sheriff or deputy sheriff of any county; (3) a member of a police department in any municipality as defined in section two, article one, chapter eight of this code; (4) a conservation officer of the division of natural resources; and (5) a 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.
§17C-5-205. Definition; "offense that involves driving under the influence."

"Offense that involves driving under the influence" means an offense described in Part III of this article or a similar offense defined in a municipal ordinance having the same elements as an offense described in Part III of this article.
§17C-5-206. Definition; "Preliminary Breath Test."

"Preliminary breath test" means a roadside test administered by a law-enforcement officer during prearrest screening of a person suspected of an offense that involves driving under the influence. A preliminary breath test uses a portable instrument that analyzes a suspect's breath and provides the law-enforcement officer with objective information to establish probable cause for arrest and to determine the need for further chemical testing.
§17C-5-207. Definition; "standardized field sobriety test."

"Standardized field sobriety test" means a battery of tests administered at roadside and evaluated in a standardized manner to obtain validated indicators of impairment and establish probable cause to arrest a person for an offense related to driving under the influence. These tests are administered systematically and are evaluated according to measured responses of the person suspected of driving while under the influence of alcohol, controlled substances or drugs. The standardized field sobriety test includes, but is not limited to: (1) The horizontal gaze nystagmus test; (2) the walk-and-turn; and (3) the one-leg stand.
PART III. OFFENSES.

§17C-5-301. Driving under the influence prohibited.

It is unlawful for a person to drive a motor vehicle in this state while under the influence of: (1) Alcohol; (2) a controlled substance; (3) any other drug; (4) any combination of alcohol, a controlled substance, or any other drug.
§17C-5-302. Driving under the influence; blood alcohol level of ten hundredths of one percent or more, by weight.

It is unlawful for a person to drive a motor vehicle in this state while that person has a blood alcohol concentration of ten hundredths of one percent or more, by weight.
§17C-5-303. Driving under the influence; driving with blood alcohol level of ten hundredths of one percent or more, by weight; penalties.

When a person violates the provisions of section three hundred one or section three hundred two of this article, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, and shall be fined not less than one hundred dollars nor more than five hundred dollars. This sentence requires actual confinement of not less than twenty-four hours.
§17C-5-304. Driving under the influence; enhanced penalties for death caused by unlawful act or failure to perform duty; enhanced penalties for death caused by reckless disregard.

(a) When a person violates the provisions of section three hundred one or section three hundred two of this article and while driving does another unlawful act or fails to perform a duty imposed by law, if the unlawful act or failure to perform a duty proximately causes the death of any person within one year after the act or failure, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional 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.
(b) When a person violates the provisions of section three hundred one or section three hundred two of this article and while driving does another unlawful act or fails to perform a duty imposed by law, if the unlawful act or failure to perform a duty proximately causes the death of any person within one year after the act or failure, and if the person's act or failure to perform is in reckless disregard of the consequences as affecting the safety of others, and if the influence of alcohol, controlled substances or drugs is shown to be a contributing factor in causing the death, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility 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.
§17C-5-305. Driving under the influence; enhanced penalties for bodily injury caused by unlawful act or failure to perform duty imposed by law.

(a) When a person violates the provisions of section three hundred one or section three hundred two of this article and while driving does another unlawful act or fails to perform a duty imposed by law, if the unlawful act or failure to perform a duty proximately causes bodily injury to another person, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, and shall be fined not less than two hundred dollars nor more than one thousand dollars. This sentence requires actual confinement of not less than twenty-four hours.
(b) When a person violates the provisions of section three hundred one or section three hundred two of this article and while driving does another unlawful act or fails to perform a duty imposed by law, if the unlawful act or failure to perform a duty proximately causes bodily injury to another person, and if the person's act or failure to perform is in reckless disregard of the consequences as affecting the safety of others, and if the influence of alcohol, controlled substances or drugs is shown to be a contributing factor in causing the bodily injury, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional 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.
§17C-5-306. Permitting another person to drive under the influence; penalties.

(a) When a person knowingly permits his or her vehicle to be driven in this state by another person in violation of section three hundred one or section three hundred two of this article, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(b) When a person knowingly permits his or her vehicle to be driven in this state by another person who is under the age of twenty-one years in violation of section three hundred nine of this article, the person is guilty of a misdemeanor and, upon conviction thereof, the person shall be fined not less than twenty-five dollars nor more than one hundred dollars.
§17C-5-307. Driving under the influence; endangering a child; penalties.

When a person violates the provisions of section three hundred one or section three hundred two of this article and while driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not yet reached their sixteenth birthday, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, and shall be fined not less than two hundred dollars nor more than one thousand dollars. This sentence requires actual confinement of not less than forty-eight hours.
§17C-5-308. Driving with measurable blood alcohol while under the age of twenty-one years; penalties.

(a) When a person under the age of twenty-one years drives a vehicle in this state while he or she has 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 person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars.
(b) For a second or subsequent offense under subsection (a) of this section, a person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than one hundred dollars nor more than five hundred dollars.
(c) A person who is charged with a first offense under the provisions of subsection (a) of this section may move for a continuance of the proceedings from time to time to allow the person to participate in the vehicle alcohol test and lock program as provided for in Part VII of this article. Upon successful completion of the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged offense. In the event the person fails to successfully complete the program, the court shall proceed to an adjudication of the alleged offense. A motion for a continuance under this subsection may not be construed as an admission or be used as evidence.
(d) A person arrested and charged with an offense under the provisions of section three hundred one, three hundred two, three hundred four, three hundred five, three hundred seven, or three hundred nine of this article may not also be charged with an offense under this section arising out of the same act or occurrence.
§17C-5-309. Driving under the influence; enhanced penalties for blood alcohol level of twenty hundredths of one percent or more, by weight; penalties.

(a) Notwithstanding any other provision of this article, if a person is convicted of a misdemeanor offense under the provisions of this Part III, and if at the time the offense was committed the person had an alcohol concentration in his or her blood of twenty hundredths of one percent or more, by weight, the person shall be sentenced in accordance with the provisions of this section.
(b) If the person has not been previously convicted of an offense under the provisions of this Part III, the person shall be confined in the county or regional 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) If the person has been previously convicted of an offense and sentenced in accordance with the provisions of this section or section three hundred eleven of this article, the person shall be confined in the county or regional jail for a period of 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.
(d) If the person has been previously convicted of a third or subsequent offense and sentenced in accordance with the provisions of section three hundred twelve of this article, the person shall be sentenced in accordance with the provisions of section three hundred twelve of this article.
(e) The existence of the fact of a blood alcohol concentration of twenty hundredths of one percent or more, by weight, and the fact of any previous conviction, which facts would make a person subject to the enhanced penalties provided for in this section, may not be considered unless the facts are clearly stated and included in the warrant, indictment or information by which the person is charged and are either:
(1) Found by the court upon a plea of guilty or nolo contendere;
(2) Found by the jury, if the matter is tried before a jury, upon submission to the jury of a special interrogatory for that purpose; or
(3) Found by the court, if the matter is tried by the court without a jury.
(f) Nothing in this section may be construed to limit the sentencing alternatives made available to circuit court judges under other provisions of this code.
§17C-5-310. Driving under the influence; enhanced penalties for second offenses; penalties.

When a person has been previously convicted for an offense as described in section three hundred thirteen of this article, and the person commits a second violation of section three hundred one or section three hundred two, or subsection (a) of section three hundred four, or section three hundred five, three hundred six, or three hundred seven of this article, the person is guilty of a misdemeanor and, upon conviction thereof, the person shall be confined in the county or regional 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.
§17C-5-311. Driving under the influence; enhanced penalties for third or subsequent offenses; penalties.

When a person has been previously convicted of a second or subsequent offense as described in section three hundred thirteen of this article, and the person commits a third or subsequent violation of section three hundred two, or subsection (a) of section three hundred four, or section three hundred five, three hundred six or three hundred seven of this article, the person is guilty of a felony and, upon conviction thereof, the person shall be imprisoned in a state correctional facility 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.
§17C-5-312. Provisions governing multiple offenses.

(a) For purposes of sections eleven and twelve of this article relating to second, third and subsequent offenses, the following types of convictions are regarded as convictions under this section:
(1) Any conviction under the provisions of subsection (a) or (b) of the prior enactment of section two of this article for an offense which occurred within a period of five years immediately preceding the first day of September, one thousand nine hundred eighty-one;
(2) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of the prior enactment of section two of this article for an offense which occurred on or after the first day of September, one thousand nine hundred eighty-one and prior to the tenth day of June, one thousand nine hundred eighty-three;
(3) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of the prior enactment of section two of this article for an offense which occurred on or after the tenth day of June, one thousand nine hundred eighty-three and prior to the sixth day of June, one thousand nine hundred eighty-six;
(4) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of the prior enactment of section two of this article for an offense which occurred on or after the sixth day of June, one thousand nine hundred eighty-six and prior to the tenth day of June, one thousand nine hundred ninety-four;
(5) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of the prior enactment of section two of this article for an offense which occurred on or after the tenth day of June, one thousand nine hundred ninety-four and prior to the sixth day of February, one thousand nine hundred ninety-five;
(6) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g) of the prior enactment of section two of this article for an offense which occurred on or after the sixth day of February, one thousand nine hundred ninety-five and prior to the seventh day of June, one thousand nine hundred ninety-six;
(7) Any conviction under the provisions of subsection (a), (b), (c), (d), (e), (f) or (i) of the prior enactment of section two of this article for an offense which occurred on or after the seventh day of June, one thousand nine hundred ninety-six and prior to the effective date of this section as enacted by the Legislature during the regular session, one thousand nine hundred ninety-seven; and
(8) Any conviction under the provisions of section three hundred two, three hundred four, three hundred five, three hundred six, three hundred seven or three hundred nine of this article, for an offense which occurred after the effective date of this section as enacted by the Legislature during the regular session, one thousand nine hundred ninety-seven.
(9) 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 section three hundred two, three hundred four, three hundred five, three hundred six, three hundred seven or three hundred nine of this article, which offense occurred after the tenth day of June, one thousand nine hundred eighty-three.
(b) A person may be charged in a warrant or indictment or information for a second or subsequent offense if the person has been previously arrested for or charged with a violation that 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 unless the conviction for the previous offense has become final.
§17C-5-313. Legal use of alcohol, controlled substance or drug not a defense.

The fact that any person charged with a violation of this article, or any person permitted to drive as described under section three hundred six of this article, is or has been legally entitled to use alcohol, a controlled substance or a drug may not constitute a defense against any charge of violating this article.
§17C-5-314. Mandatory sentences; exceptions.

The sentences provided for convictions under this article are mandatory and are not 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. An order for home detention by the court pursuant to the provisions of article eleven-b, chapter sixty-two of this code may be used as an alternative sentence to any period of incarceration required by this section.
PART IV. IMPLIED CONSENT.

§17C-5-401. Implied consent to test to determine alcohol content of blood.

When a person drives a motor vehicle in this state, then by that act the person gives consent to being tested to determine the alcohol concentration in his or her blood, subject to the provisions of this article. The tests consented to are a standardized field sobriety test, a preliminary breath test and a secondary chemical test of the person's breath, blood or urine.
§17C-5-402. Preliminary breath test; standardized field sobriety test.

(a) A field sobriety test or a preliminary breath test, or both, may be administered at roadside to the driver of a motor vehicle when a law-enforcement officer has reasonable cause to believe a person may have committed an offense that involves driving under the influence. If a law-enforcement officer directs a field sobriety test or a preliminary breath test, or both, to be performed, the tests must be administered as soon as practicable after the officer forms a reasonable belief that an offense has been committed.
(b) A preliminary breath test must be administered with an instrument and in a manner approved by the division of health for that purpose. The results of a preliminary breath test are to be used solely to guide a law-enforcement officer in deciding whether an arrest should be made and a secondary chemical test should be administered.
(c) The results of a standardized field sobriety test are to be used, initially, to guide a law-enforcement officer in deciding whether an arrest should be made and a secondary chemical test should be administered. The results of a standardized field sobriety test may be admissible in evidence and may be probative on the issue of whether a person drove a motor vehicle in this state while he or she was under the influence of alcohol, a controlled substance or any other drug; or any combination of alcohol, a controlled substance or any other drug.
§17C-5-403. Secondary chemical test of breath, blood or urine.

If a driver is arrested following a standardized field sobriety test or a preliminary breath test, the arresting officer may direct that a secondary chemical test of breath, blood or urine be administered. Every law-enforcement agency empowered to enforce this article shall designate which test is to be administered by the law-enforcement officers it employs. The designated test shall be administered at the direction of the arresting law-enforcement officer: Provided, That if the test designated by the agency is a blood test and the person arrested refuses to submit to a blood test, then the arresting officer may designate a breath or urine test to be administered. A 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 his or her state.
§17C-5-404. Written advice as to effect of refusal to submit to secondary chemical test.

A person who is arrested shall be given a written statement advising him or her that refusal to submit to the secondary chemical test finally designated will result in the revocation of the person's license to operate a motor vehicle in this state for at least one year and possibly for life.
§17C-5-405. Procedure for administering secondary chemical test when testing equipment or facilities are not available.

If any municipality or the division of natural resources does not have available to its law-enforcement officers the testing equipment or facilities necessary to conduct any secondary test which a law-enforcement officer may administer under this article, or if the person to be tested is arrested by a special police officer, then any member of the West Virginia state police, the sheriff of the county wherein the arrest is made or any deputy of the sheriff or any municipal law-enforcement officer of another municipality within the county wherein the arrest is made may, at the request of the arresting law-enforcement officer and in his or her presence, conduct the secondary test. The results of the test may be used in evidence to the same extent and in the same manner as if the test had been conducted by the arresting law-enforcement officer. Only the person actually administering or conducting the test is competent to testify as to the results and the veracity of the test.
§17C-5-406. Procedure for administering secondary chemical test when person is rendered incapable of refusal.

Any person who is unconscious or who is otherwise rendered incapable of refusal, is considered not to have withdrawn consent for a test of his or her breath, blood or urine and the test may be administered although the person is not informed that failure to submit to the test will result in the revocation of his or her license to operate a motor vehicle in this state.
§17C-5-407. Right to have additional secondary chemical test administered.

The person tested may, at that person's own expense, have a doctor of medicine or osteopathy, or registered nurse or trained medical technician at the place of the person's employment, of the person's own choosing, administer a chemical test in addition to the test administered at the direction of the law-enforcement officer. Upon the request of the person who is tested, full information concerning the test taken at the direction of the law-enforcement officer shall be made available to that person.
§17C-5-408. How blood test administered; use of test results; certain immunity from liability incident to administering test.

Only a doctor of medicine or osteopathy, or registered nurse, or trained medical technician at the place of his or her employment, acting at the request and direction of the law-enforcement officer, may withdraw blood for the purpose of determining the blood alcohol concentration. These limitations do not apply to the taking of a breath test or a urine specimen.
No person who administers any such test upon the request of a law-enforcement officer as herein defined, no hospital in or with which that person is employed or is otherwise associated or in which the test is administered, and no other person, firm or corporation by whom or with which the person is employed or is in any way associated, may be in any way criminally liable for the administration of the test, or civilly liable in damages to the person tested unless for gross negligence or willful or wanton injury.
§17C-5-409. Taking a child into custody; driving a motor vehicle with any amount of blood alcohol.

(a) A preliminary breath test may be administered to a child whenever a law-enforcement official has reasonable cause to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood, for the purpose of determining the child's blood alcohol content. The breath analysis must be administered as soon as possible after the law-enforcement officer arrives at a reasonable belief that the child has been driving a motor vehicle with any amount of alcohol in his or her blood. If a preliminary breath test is administered, the results shall be used solely for the purpose of guiding the officer in deciding whether the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, and should therefore be taken into custody to administer a secondary test in accordance with the provisions of this section.
(b) A child may be taken into custody by a law-enforcement official without a warrant or court order if the official has reasonable grounds to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood. If a preliminary breath test is administered and the results of the analysis indicate that the child has a blood alcohol concentration of less than two hundredths of one percent, by weight, the child may not be taken into custody unless other grounds exist under subsection (b), section eight, article five, chapter forty-nine of this code. Upon taking a child into custody pursuant to the provisions of this section, the official shall take all reasonable steps to cause notification to be made to the child's parent or custodian or, if the parent or custodian cannot be located, to a close relative.
(c) Upon taking a child into custody pursuant to this section, the official shall take the child to a facility where a secondary test of the child's blood or urine may be administered at the direction of the official or a test of the child's breath may be administered by the official. The law-enforcement agency by which the law-enforcement official is employed shall designate whether the secondary test is a test of either blood, breath or urine: Provided, That if the designated test is a blood test and the child refuses to submit to the blood test, then the law-enforcement official taking the child into custody shall designate in lieu thereof a breath test to be administered. Notwithstanding the provisions of section seven of this article, a refusal to submit to a blood test only may not result in the revocation of the child's license to operate a motor vehicle in this state. Any child taken into custody pursuant to this section shall be given a written statement advising him or her that a refusal to submit to a secondary test of either blood, breath or urine, as finally designated by the law-enforcement agency or official in accordance with this subsection, will result in the suspension of his or her license to operate a motor vehicle in this state for a period of at least thirty days or a revocation of the license for a period up to life.
(d) If the law-enforcement official taking the child into custody is employed by a law-enforcement agency which does not have available the testing equipment or facilities necessary to conduct any secondary breath test which may be administered pursuant to the provisions of this section, then the official who took the child into custody may request another qualified person to administer a secondary breath test: Provided, That the breath test shall be administered in the presence of the official who took the child into custody. The results of the breath test may be used in evidence to the same extent and in the same manner as if the test had been conducted by the law-enforcement official who took the child into custody. The qualified person administering the breath test must be a member of the West Virginia state police, the sheriff of the county wherein the child was taken into custody or any deputy of the sheriff, or a law-enforcement official of another municipality within the county wherein the child was taken into custody. Only the person actually administering the secondary breath test is competent to testify as to the results and the veracity of the test. If the secondary test is a blood test, the test shall be conducted in accordance with the provisions of section six of this article.
(e) After taking the child into custody, if the law-enforcement official has reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of this article if the child were an adult, then the official shall proceed to treat the child in the same manner as any other child taken into custody without a warrant or court order.
(f) If the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of ten hundredths of one percent or less, by weight, and if the law-enforcement official does not have reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of this article if the child were an adult, then the official shall release the child: Provided, That if the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, the child shall only be released to a parent or custodian, or to some other responsible adult.
§17C-5-410. Refusal to submit to secondary tests.

A person under arrest as specified in section four hundred one of this article shall be given a written statement advising him or her that a refusal to submit to the secondary test finally designated will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least one year and up to life. If the person refuses to submit to any secondary chemical test, the tests shall not be given. If a person initially refuses to submit to the designated secondary chemical test after being informed in writing of the consequences of a refusal, the person shall be informed orally and in writing that after fifteen minutes the refusal is considered to be final and the arresting officer shall after that period of time expires have no further duty to provide the person with an opportunity to take the secondary test.
§17C-5-411. Report by officer of refusal to submit to secondary tests.

(a) An officer shall, within forty-eight hours of a refusal to submit to secondary tests, sign and submit to the commissioner of motor vehicles a written statement of the officer that:
(1) Reasonable grounds existed 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 was 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 secondary test finally designated in the manner provided in section four hundred three of this article; and
(4) The person refused to submit to the secondary chemical test finally designated in the manner provided in section four hundred three of this article.
(b) The signing of the statement required by this section is an oath or affirmation by the person signing the statement that the statements contained therein are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material, or not material, is false swearing and is a misdemeanor. Upon receiving the statement the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state for the period prescribed in section four hundred six of this article.
§17C-5-412. Revocation periods for refusal to submit to secondary tests.

(a) For the first refusal to submit to the designated secondary chemical test, the commissioner shall make and enter an order revoking the person's license to operate a motor vehicle in this state for a period of one year.
(b) If the commissioner has previously revoked the person's license under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking the person's license to operate a motor vehicle in this state for a period of ten years. The license may be reissued in five years in accordance with the provisions of section six hundred four of this article.
(c) If the commissioner has previously revoked the person's license more than once under the provisions of this section, the commissioner shall, for the refusal to submit to the designated secondary chemical test, make and enter an order revoking the person's license to operate a motor vehicle in this state for a period of life. The license may be reissued in ten years in accordance with the provisions of section six hundred four of this article.
(d) A copy of the revocation order shall be forwarded to the person by registered or certified mail, return receipt requested. The order shall contain the reasons for the revocation and shall specify the revocation period imposed pursuant to this section. A revocation does not become effective until ten days after receipt of the copy of the order.
(e) A revocation under this section shall run concurrently with the period of any suspension or revocation imposed in accordance with other provisions of this code and growing out of the same incident which gave rise to the arrest for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs and the subsequent refusal to undergo the test finally designated in accordance with the provisions of section four hundred three of this article.
(f) For the purposes of this section, where reference is made to previous suspensions or revocations under this section, the following types of suspensions or revocations shall also be regarded as suspensions or revocations under this section:
(1) 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 this article, for conduct which occurred on or after the tenth day of June, one thousand nine hundred eighty-three; and
(2) Any revocation under the prior enactments of chapter five or five-a of this code for conduct that occurred on or after the tenth day of June, one thousand nine hundred eighty-three.
(g) A person whose license to operate a motor vehicle in this state has been revoked shall be afforded an opportunity to be heard.
§17C-5-413. 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 any person 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 or her 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 or her 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 hundredths of one percent, by weight, of alcohol in the person's blood is relevant evidence, but it is not to be given prima facie effect in indicating whether the person was under the influence of alcohol.
A determination of the percent, by weight, of alcohol in the blood shall be based upon a formula of: (1) The number of grams of alcohol per one hundred cubic centimeters of blood; (2) the number of grams of alcohol per two hundred ten liters of breath; or (3) the number of grams of alcohol per sixty-seven milliliters of urine.
A chemical analysis of a person's blood, breath or urine, in order to give rise to the presumptions or to have the effect provided for in subdivisions (a) and (b) of this section, must be performed in accordance with methods and standards approved by the state division 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 West Virginia state police.
The provisions of this article do 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.
§17C-5-414. Fee for withdrawing blood sample and making urine test; payment of fees.

A reasonable fee shall be allowed to the person withdrawing a blood sample or administering a urine test at the request and direction of a law-enforcement officer in accordance with the provisions of this article. If the person whose blood sample was withdrawn or whose urine was tested was arrested and charged with a violation of this article, the county having venue of the charge shall pay the fee. If the person is subsequently convicted, the fee shall be taxed as a part of the costs of the criminal proceeding and shall be paid, notwithstanding any other provision of this code to the contrary, into the general fund of said county. If the person whose blood sample was withdrawn or whose urine was tested was arrested and charged with a violation of a similar ordinance of any municipality, the municipality shall pay the fee, and if the person is subsequently convicted of the charge, the fee shall be taxed as a part of the costs of the criminal proceeding and shall be paid, notwithstanding any other provision of this code to the contrary, into the general fund of the municipality.
PART V. REVOCATION OR SUSPENSION OF LICENSE.

§17C-5-501. Arresting officer required to forward report to commissioner.

(a) When a law-enforcement officer arrests a person for an offense that involves driving under the influence, the arresting officer shall forward a written report to the commissioner within forty-eight hours after the arrest. The information in the report shall include, but not be limited to, the following information:
(1) The name and address of the person arrested or taken into custody;
(2) The specific offense or offenses that the person is charged with committing;
(3) A copy of the results of any secondary test or tests of blood, breath or urine that were administered;
(4) If applicable, a statement that the person arrested refused to submit to a secondary test of blood, breath or urine;
(5) If the person arrested or taken into custody is licensed to operate a motor vehicle by a jurisdiction outside of this state, any relevant information known to the arresting officer that relates to the license and licensee that may assist the commissioner in notifying the appropriate licensing authority of the alleged offense; and
(6) If applicable, a statement as to whether the person has entered a plea of guilty, not guilty or nolo contendere to the alleged offense.
(b) The signed report of the arresting officer is an oath or affirmation that the information in the report is true to the best of the officer's knowledge or belief, and is an oath that a copy of any included test results is a true copy of those results. The standardized form for the report shall contain upon its face a warning to the officer that to willfully sign a report containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
§17C-5-502. Revocation or suspension of license by commissioner.

After receipt of a written statement from a law-enforcement officer and any accompanying test results, the commissioner shall consider the contents of the report, together with available records that relate to the person's prior driving history. The commissioner shall make an order that contains preliminary findings as to whether there is cause to revoke or suspend the person's license to operate a motor vehicle in this state. An order that finds cause to revoke or suspend a license shall contain the reasons for the revocation or suspension and describe the applicable revocation or suspension periods. A copy of the order shall be forwarded to the licensee by registered or certified mail, return receipt requested. A revocation or suspension is not effective until ten days after the licensee receives a copy of the order. The order shall describe the procedures to be followed if the licensee desires to request a hearing to contest the revocation or suspension.
§17C-5-503. Search for record of prior offenses by driver.

The commissioner shall immediately upon receipt of the statements required by section five hundred one of this article record the date and time of day of the receipt of such statements and shall forthwith cause a search of the appropriate records of the department to be made for any record of prior offenses under this article and the commissioner shall immediately report to the officer making the statement an abstract showing any prior offense, the date thereof, the identity of any court in which any proceedings in regard thereto were instituted and the disposition thereof.
Any law-enforcement officer who fails to file the statements required by this chapter within forty-eight hours of the arrest of any person charged for any violation of section two, article five of this chapter or for any offense described in a municipal ordinance which has the same elements as an offense described in said section two of article five, is guilty of a misdemeanor and is subject to a fine of not less than twenty dollars nor more than five hundred dollars. And if the commissioner willfully fails to post by United States mail or other adequate means of communication a written report addressed to the law-enforcement officer of any offense, as required by this section, within a period of forty-eight hours after the receipt of the statement, the commissioner is guilty of a misdemeanor and is subject to a fine of not less than twenty dollars nor more than five hundred dollars.
§17C-5-504. Revocation for driving under the influence; driving with a blood alcohol level of ten hundredths (.10) of one percent or more, by weight; revocation period.

Upon finding that the person drove a motor vehicle in this state while the person: (1) Was under the influence of alcohol, a controlled substance or any other drug; (2) was under the combined influence of alcohol and a controlled substance or any other drug; or (3) 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.
§17C-5-505. Revocation for driving under the influence; increased revocation period for death caused by unlawful act or failure to perform duty; increased revocation period for death caused by reckless disregard.

(a) If in addition to the findings described in section five hundred four of this article, the commissioner also finds that the person, while driving did another unlawful act or failed to perform a duty imposed by law, if the act or failure to perform proximately caused the death of any person within one year after the act or failure, 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.
(b) If, in addition to the findings described in section five hundred four of this article, the commissioner also finds that the person, while driving did another unlawful act or failed to perform a duty imposed by law, if the act or failure to perform proximately caused the death of any person within one year after the act or failure, and if the person's act or failure to perform was in reckless disregard of the consequences as affecting the safety of others, and if the influence of alcohol, controlled substances or drugs is shown to be 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.
§17C-5-506. Revocation for driving under the influence; increased revocation period for bodily injury caused by unlawful act or failure to perform duty imposed by law; increased revocation period for bodily injury caused by reckless disregard.

(a) If, in addition to the findings described in section five hundred four of this article, the commissioner also finds that the person, while driving did another unlawful act or failed to perform a duty imposed by law, if the act or failure to perform proximately caused bodily injury to another person, 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.
(b) If, in addition to the findings described in section five hundred four of this article, the commissioner also finds that the person, while driving did another unlawful act or failed to perform a duty imposed by law, if the act or failure to perform proximately caused bodily injury to another person, and if the person's act or failure to perform was in reckless disregard of the consequences as affecting the safety of others, and if the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the bodily injury, 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.
§17C-5-507. Revocation for permitting another person to drive under the influence; revocation for permitting person under the age of twenty-one years to drive 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.

(a) When a person knowingly permits his or her vehicle to be driven in this state by another person who is under the influence of alcohol, controlled substances or drugs, or knowingly permits 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 article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(b) When a person knowingly permits his or her vehicle to be driven in this state by another person 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 revoke the person's license for a period of six months.
§17C-5-508. Revocation for driving by person who is habitual drug user; revocation for permitting a habitual drug user to drive.

(a) When a person who is a habitual user of narcotic drugs or amphetamine or any derivative thereof drives a vehicle in this state, 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 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.
(b) When a person knowingly permits his or her vehicle to be driven in this state by another person who is a habitual user of narcotic drugs or amphetamine or any derivative thereof, 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.
§17C-5-509. Driving under the influence; endangering a child; penalties.

If in addition to the findings described in section five hundred four of this article, the commissioner also finds that the person, while driving had on or within the motor vehicle one or more other persons who are unemancipated minors who have not yet reached their 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 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 article within the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
§17C-5-510. Suspension for driving by person under the age of twenty-one years with alcohol concentration of two hundredths of one percent or more, by weight, but less than ten hundredths of one percent, by weight.

When a person under the age of twenty-one years drives a vehicle in this state while he or she has 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.
PART VI. REISSUANCE OF LICENSE.

§17C-5-601. Establishment of safety and treatment program.

(a) The division of motor vehicles, in cooperation with the division of alcoholism and drug abuse of the department of health and human resources, shall establish a comprehensive safety and treatment program for persons whose licenses have been revoked for driving a motor vehicle while under the influence of alcohol, controlled substances or drugs.
(b) The division of motor vehicles shall establish the minimum qualifications for mental health facilities or other public agencies or private entities conducting the safety and treatment program. The commissioner may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.
(c) The cost of the program shall be paid out of fees established by the commissioner of motor vehicles in cooperation with the department of health and human resources, division of alcohol and drug abuse. These fees shall be deposited in a special account administering the program, to be designated the "driver's rehabilitation fund."
(d) The commissioner shall propose a legislative rule or rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code, establishing the safety and treatment program.
§17C-5-602. Elements of safety and treatment program.

The safety and treatment program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction, and other programs designed to properly educate, train and rehabilitate the offender.
§17C-5-603. Individualized plan for treatment and rehabilitation.

The division of motor vehicles, in cooperation with the department of health and human resources, the division of alcoholism and drug abuse, shall provide for the preparation of an individualized plan for each person whose license has been revoked for driving under the influence. The plan shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment. Each individualized plan shall contain the following:
(1) A listing and evaluation of the offender's prior traffic record;
(2) Characteristics and history of alcohol or drug use, if any;
(3) An analysis of the offender's amenability to education, rehabilitation and treatment through the safety and treatment program;
(4) A recommendation as to education, treatment or rehabilitation; and
(5) A description of the terms and conditions of the education, treatment or rehabilitation plan.
§17C-5-604. Reissuance of license.
(a) The commissioner, after giving due consideration to the individualized plan developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle. The terms and conditions shall require the offender to successfully complete the educational, treatment or rehabilitation program, to pay all costs of the program and administration, and to pay any costs assessed as a result of a revocation hearing. Further, reissuance of a license is subject to the following:
(1) When the period of revocation is six months, the license to operate a motor vehicle in this state shall not be reissued until at least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect.
(2) When the period of revocation is for a period of years, the license to operate a motor vehicle in this state shall not be reissued until at least one half of such time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect.
(3) When the period of revocation is for life, the license to operate a motor vehicle in this state shall not be reissued until at least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect.
(b) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program, shall only have to certify that such person has successfully completed the program.
§17C-5-605. Education plan for persons suspended for driving a motor vehicle while under the age of twenty-one with blood alcohol of two hundredths of one percent or more, but less than ten hundredths of one percent.

(a) The division of motor vehicles, in cooperation with the department of health and human resources, division of alcoholism and drug abuse, shall provide for the preparation of an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection (l), section two, article five-a of this chapter. The educational program shall consist of not less than twelve nor more than eighteen hours of actual classroom time.
(b) When a sixty-day period of suspension has been ordered, the license to operate a motor vehicle may not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.
§17C-5-606. Victim impact panels.
(a) A required component of the rehabilitation program provided for in section six hundred three and the education program provided for in section six hundred five of this article shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug related offenses and offenders to share first-hand experiences on the impact of alcohol and drug related offenses in their lives.
(b) The commissioner shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code to implement victim impact panels where appropriate numbers of victims are available and willing to participate, and shall establish guidelines for other innovative programs which may be substituted where the victims are not available, so as to assist persons whose licenses have been suspended or revoked for alcohol and drug related offenses to gain a full understanding of the severity of their offenses in terms of the impact of these offenses on victims and offenders. The legislative rules proposed for promulgation by the commissioner shall require, at a minimum, discussion and consideration of the following:
(1) Economic losses suffered by victims or offenders;
(2) Death or physical injuries suffered by victims or offenders;
(3) Psychological injuries suffered by victims or offenders;
(4) Changes in the personal welfare or familial relationships of victims or offenders; and
(5) Other information relating to the impact of alcohol and drug related offenses upon victims or offenders.
(c) Any rules promulgated pursuant to this subsection shall contain provisions which ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.
PART VII. MOTOR VEHICLE TEST AND

LOCK PROGRAM.

§17C-5-701. Establishment of the motor vehicle alcohol test and lock program.

(a) The division of motor vehicles shall administer a motor vehicle alcohol test and lock program for persons whose licenses have been revoked for driving under the influence.
(b) For purposes of this section, a "motor vehicle alcohol test and lock system" means a mechanical or computerized system that assesses the blood alcohol content of a person operating or attempting to operate a vehicle, and prevents the operation when the person is determined to be under the influence of alcohol.
(c) The commissioner shall prescribe the requirements for eligibility to participate in the test and lock program, and shall establish a user's fee for persons participating in the program, to be paid in advance and deposited into the driver's rehabilitation fund.
(d) The commissioner of the division of motor vehicles shall propose legislative rules for promulgation in accordance with the provisions of chapter twenty-nine-a of this code for the purpose of implementing the motor vehicle alcohol test and lock program.
§17C-5-702. Eligibility to participate in the motor vehicle alcohol test and lock program.

(a) A person whose license has been revoked pursuant to this article is eligible to participate in the program if the person's minimum revocation period as specified by section seven hundred four of this article has expired and:
(1) The person is enrolled in or has successfully completed the safety and treatment program; or
(2) The person presents proof to the commissioner within sixty days of receiving approval to participate in the test and lock program that he or she is enrolled in the safety and treatment program.
(b) The following persons are not eligible to participate in the test and lock program:
(1) A person whose license has been revoked pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsections (a) or (b), section two, article five of this chapter, or pursuant to the provisions of subsections (f) or (g), section two of this article; or
(2) A person whose license is revoked pursuant to this article for an act which occurred either while participating in or after successfully completing the test and lock program.
§17C-5-703. Conditions for participation in the motor vehicle alcohol test and lock program by person suspended for 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.

(a) A person whose license has been for 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, is eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect. In the case of a person under the age of eighteen, the person shall be eligible to participate in the program after thirty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect, or after the person's eighteenth birthday, whichever is later.
(b) Before the commissioner approves a person to operate a motor vehicle equipped with a motor vehicle alcohol test and lock system, the person must agree to thereafter comply with the following conditions:
(1) If not already enrolled, the person will enroll in and complete the educational program provided for in subsection (c), section three of this article at the earliest time that placement in the educational program is available, unless good cause is demonstrated to the commissioner as to why placement should be postponed;
(2) The person will pay all costs of the educational program, any administrative costs and all costs assessed for any revocation hearing.
§17C-5-704. Minimum revocation periods.

(a) For purposes of this section, "minimum revocation period" means the portion which has actually expired of the period of revocation imposed by the commissioner pursuant to this article upon a person eligible for participation in the program as follows:
(1) For a person whose license has been revoked for a first offense for six months pursuant to the provisions of section one-a of this article for conviction of an offense defined in section two, article five of this chapter, or pursuant to subsection (I), section two of this article, the minimum period of revocation before such person is eligible for participation in the test and lock program is thirty days, and the minimum period for the use of the ignition interlock device is five months, or that period described in subdivision (1), subsection (e) of this section, whichever period is greater;
(2) For a person whose license has been revoked for a first offense pursuant to section seven, article five of this chapter, refusal to submit to a designated secondary chemical test, the minimum period of revocation before such person is eligible for participation in the test and lock program is thirty days, and the minimum period for the use of the ignition interlock device is nine months, or the period set forth in subdivision (1), subsection (e) of this section, whichever period is greater;
(3) For a person whose license has been revoked for a second offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in section two, article five of this chapter, or pursuant to section two of this article, the minimum period of revocation before such person is eligible for participation in the test and lock program is nine months, and the minimum period for the use of the ignition interlock device is eighteen months, or that period set forth in subdivision (2), subsection (e) of this section, whichever period is greater;
(4) For a person whose license has been revoked for any other period of time pursuant to the provisions of section one-a of this article for conviction of an offense defined in section two, article five of this chapter, or pursuant to section two of this article or pursuant to section seven, article five of this chapter, the minimum period of revocation is eighteen months, and the minimum period for the use of the ignition interlock device is two years, or that period set forth in subdivision (3), subsection (e) of this section, whichever period is greater;
(5) An applicant for the test and lock program must not have been convicted of any violation of section three, article four, chapter seventeen-b of this code, for driving while the applicant's driver's license was suspended or revoked, within the two-year period preceding the date of application for admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals in the test and lock program an additional device or devices if such is necessary for employment purposes.
(b) Upon permitting an eligible person to participate in the program, the commissioner shall issue to the person, and the person shall exhibit on demand, a driver's license which shall reflect that the person is restricted to the operation of a motor vehicle which is equipped with an approved motor vehicle alcohol test and lock system.
§17C-5-705. Restoration of license upon completion of motor vehicle alcohol test and lock program.

(a) Any person who has completed the safety and treatment program and who has not violated the terms required by the commissioner of that person's participation in the motor vehicle alcohol test and lock program is entitled to the restoration of that person's driver's license upon the expiration of:
(1) One hundred eighty days of the full revocation period imposed by the commissioner for a person described in subdivision (1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for a person described in subdivision (3), subsection (c) of this section;
(3) One year from the date a person described in subdivision (4), subsection (c) of this section is permitted to operate a motor vehicle by the commissioner.
(b) A person whose license has been suspended pursuant to the provisions of subsection (l), section two of this article, who has completed the educational program, and who has not violated the terms required by the commissioner of that person's participation in the motor vehicle alcohol test and lock program is entitled to the reinstatement of his or her driver's license six months from the date the person is permitted to operate a motor vehicle by the commissioner. When a license has been reinstated pursuant to this subsection, the records ordering the suspension, records of any administrative hearing, records of any blood alcohol test results and all other records pertaining to the suspension shall be expunged by operation of law: Provided, That a person is entitled to expungement under the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show that the records have been expunged, and by securely sealing and filing the records. Expungement has the legal effect as if the suspension never occurred. The records may not be disclosed or made available for inspection, and in response to a request for record information, the commissioner shall reply that no information is available. Information from the file may be used by the commissioner for research and statistical purposes so long as the use of such information does not divulge the identity of the person.
§17C-5-706. Operating motor vehicle not equipped with test and lock system; penalty.

(a) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved motor vehicle alcohol test and lock system during such person's participation in the motor vehicle alcohol test and lock program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period not less than one month nor more than six months and fined not less than one hundred dollars nor more than five hundred dollars.
(b) Any person who assists another person required by the terms of such other person's participation in the motor vehicle alcohol test and lock program to use a motor vehicle alcohol test and lock system in any effort to bypass the system is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the the county or regional jail not more than six months and fined not less than one hundred dollars nor more than one thousand dollars.
(c) Notwithstanding any provision of this code to the contrary, a person enrolled and participating in the test and lock program may operate a motor vehicle solely at his or her job site, if that is a condition of his or her employment.


NOTE: The purpose of this bill is to recodify the laws governing criminal offenses and penalties and administrative sanctions for driving under the influence of alcohol, controlled substances or drugs. The statutes currently covering these subjects are found in Articles 5 and 5A, Chapter 17C of the Code. This bill merges these two articles into a rewritten Article 5, while repealing Article 5A. However, it appears to eliminate the right of a person arrested or convicted for a driving under the influence charge to have an administrative hearing for the revocation of license, although it does state that the person has a right to be heard as a result of the revocation, without setting out the procedure. There is no provision to have the commissioner's action of revocation reviewed by a circuit court as the current law now provides.

Article 5 has, for all practical purposes, been rewritten; therefore, strike-throughs and underscoring have been omitted.