H. B. 2100
(By Delegate Stalnaker)
[Introduced February 14, 2001
; referred to the
Committee on the Judiciary.]
A BILL to amend article two-a, chapter seventeen-d of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
ten, relating to providing for seizure of motor vehicle and
license plates upon arrest for third offense of failure to
maintain proper security upon motor vehicle; return of motor
vehicle to rightful owner; providing for forfeiture of motor
vehicle and subsequent disposition upon conviction after
appeal, if any; disposition of proceeds; cooperation of
prosecuting attorneys; and arrest procedures.
Be it enacted by the Legislature of West Virginia:
That article two-a, chapter seventeen-d of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section ten, to
read as follows:
ARTICLE 2A. SECURITY UPON MOTOR VEHICLES.
§17D-2A-10. Additional criminal penalties for third or subsequent
violation of failure to maintain required security;
seizure of motor vehicle and license plates upon
arrest; exception; release of motor vehicle;
property taken not subject to replevin; forfeiture
of same upon conviction; notice of public auction
following unsuccessful appeals; disposition of
proceeds; surrender of license plate to
commissioner; cooperation of prosecuting attorneys;
arrest procedures.
(a) If a person is arrested for a third or subsequent
violation under section seven of this article, the arresting
officer, in addition to any action which he or she may be required
or authorized to take by any other provision of law, shall seize
the vehicle that the person was operating at the time of the
alleged offense and its license plates. Except as otherwise
provided in this article, the officer shall seize the vehicle and
its license plates regardless of whether the vehicle is registered
in the name of the arrested person or in the name of another person or entity. This section does not apply to or affect any motor
vehicle which is leased or rented for a period of thirty days or
less, except that a law-enforcement officer that makes an arrest
contemplated by this section and that involves a leased or rented
vehicle which is leased or rented for a period greater than thirty
days shall notify, within twenty-four hours after the arrest, the
lessor or owner of the vehicle regarding the circumstances involved
in the arrest and the location at which the vehicle may be
recovered into the possession of the lessor or owner.
(b) At the time of seizure of the vehicle, the arresting
officer shall give the arrested person written notice that the
motor vehicle and its license plate have been seized; that the
vehicle will remain seized at least until the initial appearance of
the person; that at the initial appearance, the court may order the
vehicle and plates released to the vehicle owner if the vehicle
owner is determined to be the arrested person until adjudication of
guilt or innocence; that, if the arrested person is the owner of
the vehicle, it shall be unlawful for that person to sell or
otherwise convey ownership in the vehicle to another person or
entity; that if the arrested person is not the owner of the
vehicle, the arrested person should immediately inform the vehicle owner that the vehicle and plates have been seized; that the
vehicle owner may be able to obtain the release of the vehicle and
plates at the initial appearance of the arrested person or
thereafter by producing proof of ownership satisfactory to the
court, such ownership in effect at the time that the driver of the
vehicle was arrested; that, if the arrested person is convicted of
the offense contemplated within this article, and is determined by
the court to own the vehicle that the vehicle shall be forfeited.
(c) The arresting officer shall give written notice of
seizure of the motor vehicle and license plates to the court when
charges are filed against the arrested person. The property taken
under this section shall not be subject to replevin by the arrested
person or any representative acting upon his or her behalf, but is
considered to be in the appropriate custody of the law-enforcement
agency which employs the arresting officer, subject only to the
orders and decrees of the court having jurisdiction over the
arrested person.
(d) At the initial or subsequent appearance of the person, if
the vehicle is owned by the arrested person, the court in its sole
discretion may order the temporary release of the vehicle and its
license plates to the vehicle owner until the disposition of that charge. Alternatively, the court may order the continued seizure
of the motor vehicle until the person is acquitted or found guilty.
In any instance in which the court makes a finding that vehicle is
owned by the arrested person, the court shall issue an order
forbidding the sale or transfer of ownership by whatever means from
the arrested person to another person or entity.
(e) If the arrested person is convicted of the charge of
violation of section four of this article, and the conviction is
the third or subsequent conviction for the same violation, the
court shall, among other things, order the surrender of the license
plates and forfeiture of the vehicle. The forfeited vehicle shall
be offered at public auction to the highest bidder for cash.
Notice of the public auction shall be published as a Class III
legal advertisement in accordance with article three, chapter
fifty-nine of this code. The publication area shall be the county
where the public auction will be held: Provided, That the court
makes a specific finding that the arrested and convicted person is
the owner of the vehicle at the time of initial arrest.
(f) No disposition of the seized property shall occur until
all applicable periods for filing a notice of intent to appeal has
expired and no party in interest shall have filed such notice. The filing of the notice of intent to appeal shall stay any
disposition until the appeal has been finally adjudicated or until
the appeal period of one hundred eighty days has expired without an
appeal actually been taken or filed, unless a valid extention of
the appeal has been granted by the court under the provisions of
section seven, article four, chapter fifty-eight of this code. In
the absence of an appeal timely filed by the convicted person, or
subsequent to the denial thereof, the court shall order that the
forfeited vehicle be offered at public sale and shall order that
the license plate be returned to the commissioner of motor
vehicles.
(g) The proceeds from every public sale conducted pursuant to
this section shall be paid and applied as follows: (1) On the
balance due on any security interest preserved by the court; (2) to
the reasonable costs incurred in storage of the property; and, (3)
to the costs incurred in selling the property. The remainder or
net proceeds, if any, shall be forwarded to the treasurer of the
state for application to the general school fund.
(h) All prosecuting attorneys shall assist in the enforcement
of all provisions of this section and shall cooperate with
law-enforcement agencies and arresting officers charged with the enforcement of the laws of this state.
(i) The arrest procedures authorized in section four, article
nineteen, chapter seventeen-c of this code shall apply to the
enforcement of all provisions of this article.
NOTE: The purpose of this bill is to provide for the seizure
of a motor vehicle and license plates upon arrest for third offense
of failure to maintain proper security on a motor vehicle.
This section is new; therefore, strike-throughs and
underscoring have been omitted.