Senate Bill No. 248
(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced January 18, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section three, article four, chapter
seventeen-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact
sections two, six-a and eight, article five, chapter
seventeen-c of said code; to amend and reenact sections
one, one-a, two and three-a, article five-a of said
chapter; to amend and reenact sections eighteen and
eighteen-b, article seven, chapter twenty of said code; and
to amend and reenact section one, article six-a, chapter
thirty-three of said code, all relating to driving under
the influence of alcohol, controlled substances or drugs;
and reducing the allowable blood alcohol content for
driving under the influence from ten hundredths to eight
hundredths of one percent of body weight.
Be it enacted by the Legislature of West Virginia:
That section three, article four, chapter seventeen-b of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that sections two, six-a
and eight, article five, chapter seventeen-c of said code be
amended and reenacted; that sections one, one-a, two and three-
a, article five-a of said chapter be amended and reenacted; that
sections eighteen and eighteen-b, article seven, chapter twenty
of said code be amended and reenacted; and that section one,
article six-a, chapter thirty-three of said code be amended and
reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATIONS OF LICENSE PROVISIONS.
§7B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the
influence of alcohol, controlled substances or
drugs, or while having alcoholic concentration in
the blood of eight hundredths of one percent or
more, by weight, or for refusing to take secondary
chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d)
of this section, any person who drives a motor vehicle on any
public highway of this state at a time when his or her privilege to do so has been lawfully suspended or revoked by this state or
any other jurisdiction is, for the first offense, guilty of a
misdemeanor and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than five hundred
dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a county or regional jail for a period of ten days and, in
addition to the mandatory jail sentence, shall be fined not less
than one hundred dollars nor more than five hundred dollars; for
the third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a county or regional jail for six months and, in addition to the
mandatory jail sentence, shall be fined not less than one
hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do
so has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or for driving
while having an alcoholic concentration in his or her blood of
ten eight hundredths of one percent or more, by weight, or for
refusing to take a secondary chemical test of blood alcohol
content, is, for the first offense, guilty of a misdemeanor and,
upon conviction thereof, shall be confined in a county or regional
jail for six months and in addition to the mandatory
jail sentence, shall be fined not less than one hundred dollars
nor more than five hundred dollars; for the second offense, the
person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional
jail for a period of
one year and, in addition to the mandatory jail sentence, shall
be fined not less than one thousand dollars nor more than three
thousand dollars; for the third or any subsequent offense, the
person is guilty of a felony and, upon conviction thereof, shall
be imprisoned in the penitentiary a state correctional facility
for not less than one year nor more than three years and, in
addition to the mandatory prison sentence, shall be fined not
less than three thousand dollars nor more than five thousand
dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section
upon a charge of driving a vehicle while the license of such
person was lawfully suspended or revoked, the division shall
extend the period of such suspension or revocation for an
additional period of one year from and after the date such
person would otherwise have been entitled to apply for a new
license. Upon receiving a record of the second or subsequent
conviction of any person under subsection (a) of this section upon a charge of driving a vehicle while the license of such
person was lawfully suspended or revoked, the division shall
extend the period of such suspension or revocation for an
additional period of one year from and after the date such
person would otherwise have been entitled to apply for a new
license.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do
so has been lawfully suspended for driving 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 eight
hundredths of one percent, by weight, is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in a county or regional
jail for twenty-four hours or
shall be fined not less than fifty dollars nor more than five
hundred dollars, or both.
(e) 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.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of
any person within one year next following the act or failure;
and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, 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.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes the death of
any person within one year next following the act or failure, 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.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails
to perform any duty imposed by law in the driving of the
vehicle, which act or failure proximately causes bodily injury
to any person other than himself or herself, 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, which jail term is to include actual confinement
of not less than twenty-four hours, and shall be fined not less
than two hundred dollars nor more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight;
(2) 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, which jail term is to
include actual confinement of not less than twenty-four hours,
and shall be fined not less than one hundred dollars nor more
than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in
this state, 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, which jail term
is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in
this state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten eight
hundredths of one percent or more, by weight;
(2) 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.
(g) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who is an habitual
user of narcotic drugs or amphetamine or any derivative thereof,
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.
(h) Any person under the age of twenty-one years who 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 eight
hundredths
of one percent, by weight, for a first offense under this
subsection, is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than twenty-five dollars nor
more than one hundred dollars. For a second or subsequent
offense under this subsection, the 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. A person who is charged with a first offense
under the provisions of this subsection 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 section three-a, article five-a of
this chapter. 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.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or
(i) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors
who have not reached their sixteenth birthday, 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, which jail term is to include actual
confinement of not less than forty-eight hours, and shall be
fined not less than two hundred dollars nor more than one
thousand dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second
offense under this section, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for 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.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any subsequent offense under this section, 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 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.
(l) For purposes of subsections (j) and (k) of this section
relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under
this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of the prior enactment of this section
for an offense which occurred on or after the first day of
September, one thousand nine hundred eighty-one, and prior to
the effective date of this section;
(2) Any conviction under the provisions of subsection (a)
or (b) of the prior enactment of this section for an offense
which occurred within a period of five years immediately
preceding the first day of September, one thousand nine hundred
eighty-one; and
(3) 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 subsection (a), (b), (c), (d), (e), (f) or
(g) of this section, which offense occurred after the tenth day
of June, one thousand nine hundred eighty-three.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this
section if the person has been previously arrested for or
charged with a violation of this section which 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 that 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 under this section unless the
conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any
person permitted to drive as described under subsection (f) or
(g) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug does not constitute a
defense against any charge of violating subsection (a), (b),
(c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term "controlled substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be 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. An order for
supervision or participation in a community corrections program
created pursuant to article eleven-c, chapter sixty-two of this
code may be used as an alternative sentence to any period of
incarceration required by this section.
§17C-5-6a. Taking a child into custody; driving a motor vehicle
with any amount of blood alcohol.
(a) A preliminary breath analysis 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. Such 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. Any preliminary breath analysis
administered pursuant to this subsection must be administered
with a device and in a manner approved by the division of health
for that purpose. If a preliminary breath analysis 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 analysis is administered and the results
of the analysis indicate that the child has an alcohol
concentration in his or her blood 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 such law-enforcement official is
employed shall designate whether the secondary test is a test of
either blood, breath or urine: Provided, That if the test so
designated 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
shall 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 such
breath test may be used in evidence to the same extent and in
the same manner as if such 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 division of public safety [West Virginia state police],
the sheriff of the county wherein the child was taken into
custody or any deputy of such 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 section two 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, in accordance with the provisions of
section eight of this article.
(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 eight
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 section
two 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-5-8. 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 eight
hundredths of
one percent, by weight, of alcohol in the person's blood shall
be relevant evidence, but it is not to be given prima facie
effect in indicating whether the person was under the influence
of alcohol;
(c) Evidence that there was, at that time, ten eight
hundredths of one percent or more, by weight, of alcohol in his
or her blood, shall be admitted as prima facie evidence that 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), (b) and (c) 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 division of public safety [West Virginia state
police].
The provisions of this article shall 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.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1. Implied consent to administrative procedure;
revocation for driving under the influence of
alcohol, controlled substances or refusal to submit
to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle
in this state and who drives a motor vehicle in this state shall
be deemed to have given his or her consent by the operation
thereof, subject to the provisions of this article, to the
procedure set forth in this article for the determination of
whether his or her license to operate a motor vehicle in this state should be revoked because he or she did drive a motor
vehicle while under the influence of alcohol, controlled
substances or drugs, or combined influence of alcohol or
controlled substances or drugs, or did drive a motor vehicle
while having an alcoholic concentration in his or her blood of
ten eight
hundredths of one percent or more, by weight, or did
refuse to submit to any 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
eight
hundredths of one percent, by weight.
(b) Any law-enforcement officer arresting a person for an
offense described in section two, article five of this chapter
or for an offense described in a municipal ordinance which has
the same elements as an offense described in said section two of
article five shall report to the commissioner of the division of
motor vehicles by written statement within forty-eight hours the
name and address of the person so arrested. The report shall
include the specific offense with which the person is charged,
and, if applicable, a copy of the results of any secondary tests
of blood, breath or urine. The signing of the statement
required to be signed by this subsection shall constitute 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.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of
this section, the commissioner shall determine that a person was
arrested for an offense described in section two, article five
of this chapter or for an offense described in a municipal
ordinance which has the same elements as an offense described in
said section two of article five, and that the results of any
secondary test or tests indicate that at the time the test or
tests were administered the person had, in his or her blood, an
alcohol concentration of ten eight
hundredths of one percent or
more, by weight, or at the time the person was arrested he or
she was under the influence of alcohol, controlled substances or
drugs, the commissioner shall make and enter an order revoking
the person's license to operate a motor vehicle in this state.
If the results of the tests indicate that at the time the test
or tests were administered the person was under the age of
twenty-one years and had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but
less than ten eight
hundredths of one percent, by weight, the
commissioner shall make and enter an order suspending the
person's license to operate a motor vehicle in this state. A
copy of the order shall be forwarded to the person by registered
or certified mail, return receipt requested, and shall contain
the reasons for the revocation or suspension and describe the
applicable revocation or suspension periods provided for in
section two of this article. No revocation or suspension shall
become effective until ten days after receipt of a copy of the
order.
(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this
chapter who has reasonable cause to believe 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, or that the act of the child in
driving the motor vehicle was such that it would provide grounds
for arrest for an offense defined under the provisions of
section two, article five of this chapter if the child were an
adult, shall report to the commissioner of the division of motor
vehicles by written statement within forty-eight hours the name
and address of the child.
(e) If applicable, the report shall include a description
of the specific offense with which the child could have been
charged if the child were an adult, and a copy of the results of
any secondary tests of blood, breath or urine. The signing of
the statement required to be signed by this subsection shall
constitute an oath or affirmation by the person signing such
statement that the statements contained therein are true and
that any copy filed is a true copy. Such 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.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this
section, if the commissioner determines that the results of the
tests indicate that at the time the test or tests were
administered the child had, in his or her blood, an alcohol
concentration of two hundredths of one percent or more, by
weight, but also determines that the act of the child in driving
the motor vehicle was not such that it would provide grounds for
arrest for an offense defined under the provisions of subsection
(a), (b), (c), (d), (e), (f) or (g), section two, article five
of this chapter if the child were an adult, the commissioner shall make and enter an order suspending the child's license to
operate a motor vehicle in this state. If the commissioner
determines that the act of the child in driving the motor
vehicle was such that it would provide grounds for arrest for an
offense defined under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g), section two, article five of this
chapter if the child were an adult, the commissioner shall make
and enter an order revoking the child's license to operate a
motor vehicle in this state. A copy of such order shall be
forwarded to the child by registered or certified mail, return
receipt requested, and shall contain the reasons for the
suspension or revocation and describe the applicable suspension
or revocation periods provided for in section two of this
article. No suspension or revocation shall become effective
until ten days after receipt of a copy of such order.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or
drugs.
(a) If a person is convicted for an offense defined in
section two, article five of this chapter or for an offense
described in a municipal ordinance which has the same elements
as an offense described in said section two of article five,
because the person did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the
combined influence of alcohol or controlled substances or drugs,
or did drive a motor vehicle while having an alcoholic
concentration in his or her blood of ten eight
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 eight
hundredths of one percent, by
weight, and if the person does not act to appeal the conviction
within the time periods described in subsection (b) of this
section, the person's license to operate a motor vehicle in this
state shall be revoked or suspended in accordance with the
provisions of this section.
(b) The clerk of the court in which a person is convicted
for an offense described in section two, article five of this
chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said
section two of article five, shall forward to the commissioner
a transcript of the judgment of conviction. If the conviction
is the judgment of a magistrate court, the magistrate court
clerk shall forward the transcript when the person convicted has
not requested an appeal within twenty days of the sentencing for
such conviction. If the conviction is the judgment of a mayor or police court judge or municipal court judge, the clerk or
recorder shall forward the transcript when the person convicted
has not perfected an appeal within ten days from and after the
date upon which the sentence is imposed. If the conviction is
the judgment of a circuit court, the circuit clerk shall forward
the transcript when the person convicted has not filed a notice
of intent to file a petition for appeal or writ of error within
thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment
of conviction, the commissioner shall determine that the person
was convicted for an offense described in section two, article
five of this chapter or for an offense described in a municipal
ordinance which has the same elements as an offense described in
said section two of article five, because the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or the combined influence of alcohol or
controlled substances or drugs, or did drive a motor vehicle
while having an alcoholic concentration in his or her blood of
ten eight
hundredths of one percent or more, by weight, the
commissioner shall make and enter an order revoking the person's
license to operate a motor vehicle in this state. If the
commissioner determines that the person was convicted 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 eight
hundredths of one percent, by weight, the commissioner shall
make and enter an order suspending the person's license to
operate a motor vehicle in this state. The order shall contain
the reasons for the revocation or suspension and the revocation
or suspension periods provided for in section two of this
article. Further, the order shall give the procedures for
requesting a hearing which is to be held in accordance with the
provisions of section two of this article. The person shall be
advised in the order that because of the receipt of a transcript
of the judgment of conviction by the commissioner a presumption
exists that the person named in the transcript of the judgment
of conviction is the person named in the commissioner's order
and such constitutes sufficient evidence to support revocation
or suspension and that the sole purpose for the hearing held
under this section is for the person requesting the hearing to
present evidence that he or she is not the person named in the
transcript of the judgment of conviction. A copy of the order
shall be forwarded to the person by registered or certified
mail, return receipt requested. No revocation or suspension
shall become effective until ten days after receipt of a copy of
the order.
(d) The provisions of this section shall not apply if an
order reinstating the operator's license of the person has been
entered by the commissioner prior to the receipt of the
transcript of the judgment of conviction.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or
suspended under the provisions of section one of this article or
section seven, article five of this chapter, the commissioner of
motor vehicles shall stay the imposition of the period of
revocation or suspension and afford the person an opportunity to
be heard. The written request must be filed with the
commissioner in person or by registered or certified mail,
return receipt requested, within thirty calendar days after
receipt of a copy of the order of revocation or suspension or no
hearing will be granted. The hearing shall be before the
commissioner or a hearing examiner retained by the commissioner
who shall rule on evidentiary issues and submit proposed
findings of fact and conclusions of law for the consideration of
the commissioner and all of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply. The
hearing shall be held at an office of the division located in or
near the county wherein the arrest was made in this state or at
some other suitable place in the county wherein the arrest was
made if an office of the division is not available. (b) Any
such hearing shall be held within one hundred eighty days after
the date upon which the commissioner received the timely written
request therefor, unless there is a postponement or continuance.
The commissioner may postpone or continue any hearing on the
commissioner's own motion, or upon application for each person
for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any such hearing on the
commissioner's own motion or for the benefit of any
law-enforcement officer or any person requesting the hearing,
and such policies shall be enforced and applied to all parties
equally. For the purpose of conducting the hearing, the
commissioner shall have the power and authority to issue
subpoenas and subpoenas duces tecum in accordance with the
provisions of section one, article five, chapter twenty-nine-a
of this code: Provided, That the notice of hearing to the
appropriate law-enforcement officers by registered or certified
mail, return receipt requested, shall constitute a subpoena to appear at the hearing without the necessity of payment of fees
by the division of motor vehicles.
(c) Law-enforcement officers shall be compensated for the
time expended in their travel and appearance before the
commissioner by the law-enforcement agency by whom they are
employed at their regular rate if they are scheduled to be on
duty during said time or at their regular overtime rate if they
are scheduled to be off duty during said time.
(d) The principal question at the hearing shall be whether
the person did drive a motor vehicle while under the influence
of alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's
blood of ten eight
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 eight
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 eight
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 eight
hundredths of one percent, by
weight, intends to challenge the results of any secondary
chemical test of blood, breath or urine, or intends to
cross-examine the individual or individuals who administered the
test or performed the chemical analysis, the person shall,
within an appropriate period of time prior to the hearing,
notify the commissioner in writing of such intention. The rule
may provide that when there is a failure to comply with the
notice requirement, the results of the secondary test, if any,
shall be admissible as though the person and the commissioner
had stipulated the admissibility of such evidence. Any such
rule shall provide that the rule shall not be invoked in the
case of a person who is not represented by counsel unless the
communication from the commissioner to the person establishing
a time and place for the hearing also informed the person of the
consequences of the person's failure to timely notify the
commissioner of the person's intention to challenge the results
of the secondary chemical test or cross-examine the individual or individuals who administered the test or performed the
chemical analysis.
(e) In the case of a hearing wherein a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's
blood of ten eight
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 eight
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 alcohol concentration in the person's blood of ten
eight
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
eight
hundredths of one percent, by weight; (2) whether the
person was lawfully placed under arrest for an offense involving
driving under the influence of alcohol, controlled substances or drugs, or was lawfully taken into custody for the purpose of
administering a secondary test; and (3) whether the tests, if
any, were administered in accordance with the provisions of this
article and article five of this chapter.
(f) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having
an alcohol concentration in the person's blood of ten eight
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 eight
hundredths of one percent, by weight, the commissioner also
finds by a preponderance of the evidence that the person when so
driving did an act forbidden by law or failed to perform a duty
imposed by law, which act or failure proximately caused the
death of a person and was committed in reckless disregard of the
safety of others, and if the commissioner further finds that the
influence of alcohol, controlled substances or drugs or the
alcohol concentration in the blood was a contributing cause to
the death, the commissioner shall revoke the person's license
for a period of ten years: Provided, That if the commissioner
has previously suspended or revoked the person's license under the provisions of this section or section one of this article
within the ten years immediately preceding the date of arrest,
the period of revocation shall be for the life of the person.
(g) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having
an alcohol concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner
also finds by a preponderance of the evidence that the person
when so driving did an act forbidden by law or failed to perform
a duty imposed by law, which act or failure proximately caused
the death of a person, the commissioner shall revoke the
person's license for a period of five years: Provided, That if
the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding
the date of arrest, the period of revocation shall be for the
life of the person.
(h) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having
an alcohol concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner also finds by a preponderance of the evidence that the person
when so driving did an act forbidden by law or failed to perform
a duty imposed by law, which act or failure proximately caused
bodily injury to a person other than himself or herself, the
commissioner shall revoke the person's license for a period of
two years: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions
of this section or section one of this article within the ten
years immediately preceding the date of arrest, the period of
revocation shall be ten years: Provided, however, That if the
commissioner has previously suspended or revoked the person's
license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be
for the life of the person.
(i) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under
the influence of alcohol, controlled substances or drugs, or did
drive a motor vehicle while having an alcohol concentration in
the person's blood of ten eight
hundredths of one percent or
more, by weight, or finds that the person, being an habitual
user of narcotic drugs or amphetamine or any derivative thereof,
did drive a motor vehicle, or finds that the person knowingly permitted the person's vehicle to be driven by another person
who was under the influence of alcohol, controlled substances or
drugs, or knowingly permitted the person's vehicle to be driven
by another person who had an alcohol concentration in his or her
blood of ten eight
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 eight
hundredths of one percent, by weight, the commissioner also
finds by a preponderance of the evidence that the person when so
driving did an act forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the
death of a person, and if the commissioner further finds that
the alcohol concentration in the blood was a contributing cause
to the death, the commissioner shall revoke the person's license
for a period of five years: Provided, That if the commissioner
has previously suspended or revoked the person's license under
the provisions of this section or section one of this article
within the ten years immediately preceding the date of arrest,
the period of revocation shall be for the life of the person.
(k) If, in addition to a finding that the person did drive
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than ten eight
hundredths of one percent, by weight, the commissioner also
finds by a preponderance of the evidence that the person when so
driving did an act forbidden by law or failed to perform a duty
imposed by law, which act or failure proximately caused bodily
injury to a person other than himself or herself, and if the
commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the bodily injury, the
commissioner shall revoke the person's license for a period of
two years: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of this section or section one of this article within the ten
years immediately preceding the date of arrest, the period of
revocation shall be ten years: Provided, however, That if the
commissioner has previously suspended or revoked the person's
license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be
for the life of the person.
(l) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under
the age of twenty-one years with an alcohol concentration in his
or her blood of two hundredths of one percent or more, by
weight, but less than ten eight
hundredths of one percent, by
weight, the commissioner shall suspend the person's license for
a period of sixty days: Provided, That if the commissioner has
previously suspended or revoked the person's license under the
provisions of this section or section one of this article, the
period of revocation shall be for one year, or until the
person's twenty-first birthday, whichever period is longer.
(m) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having
an alcohol concentration in the person's blood of ten eight
hundredths of one percent or more, by weight, the commissioner
also finds by a preponderance of the evidence that the person
when so driving did have on or within the motor vehicle another
person who has not reached his or her sixteenth birthday, the
commissioner shall revoke the person's license for a period of
one year: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions
of this section or section one of this article within the ten
years immediately preceding the date of arrest, the period of
revocation shall be ten years: Provided, however, That if the
commissioner has previously suspended or revoked the person's
license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be
for the life of the person.
(n) For purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions
or revocations under this section or section one of this
article:
(1) Any administrative revocation under the provisions of
the prior enactment of this section for conduct which occurred within the ten years immediately preceding the date of arrest.
(2) Any suspension or revocation on the basis of a
conviction under a municipal ordinance of another state or a
statute of the United States or of any other state of an offense
which has the same elements as an offense described in section
two, article five of this chapter, for conduct which occurred
within the ten years immediately preceding the date of arrest.
(3) Any revocation under the provisions of section seven,
article five of this chapter, for conduct which occurred within
the ten years immediately preceding the date of arrest.
(o) In the case of a hearing wherein a person is accused of
refusing to submit to a designated secondary test, the
commissioner shall make specific findings as to: (1) Whether the
arresting law-enforcement officer had reasonable grounds to
believe the person had been driving a motor vehicle in this
state while under the influence of alcohol, controlled
substances or drugs; (2) whether the person was lawfully placed
under arrest for an offense relating to driving a motor vehicle
in this state while under the influence of alcohol, controlled
substances or drugs; (3) whether the person refused to submit to
the secondary test finally designated in the manner provided in section four, article five of this chapter; and (4) whether the
person had been given a written statement advising the person
that the person's license to operate a motor vehicle in this
state would be revoked for at least one year and up to life if
the person refused to submit to the test finally designated in
the manner provided in section four, article five of this
chapter.
(p) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement officer had
reasonable grounds to believe the person had been driving a
motor vehicle in this state while under the influence of
alcohol, controlled substances or drugs; (2) the person was
lawfully placed under arrest for an offense relating to driving
a motor vehicle in this state while under the influence of
alcohol, controlled substances or drugs; (3) the person refused
to submit to the secondary chemical test finally designated; and
(4) the person had been given a written statement advising the
person that the person's license to operate a motor vehicle in
this state would be revoked for a period of at least one year
and up to life if the person refused to submit to the test
finally designated, the commissioner shall revoke the person's
license to operate a motor vehicle in this state for the periods
specified in section seven, article five of this chapter. The revocation period prescribed in this subsection shall run
concurrently with any other revocation period ordered under this
section or section one of this article arising out of the same
occurrence.
(q) If the commissioner finds to the contrary with respect
to the above issues, the commissioner shall rescind his or her
earlier order of revocation or shall reduce the order of
revocation to the appropriate period of revocation under this
section, or section seven, article five of this chapter.
A copy of the commissioner's order made and entered
following the hearing shall be served upon the person by
registered or certified mail, return receipt requested. During
the pendency of any such hearing, the revocation of the person's
license to operate a motor vehicle in this state shall be
stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation,
the person shall be entitled to judicial review as set forth in
chapter twenty-nine-a of this code. The commissioner may not
stay enforcement of the order. The court may grant a stay or
supersedeas of the order only upon motion and hearing, and a
finding by the court upon the evidence presented, that there is
a substantial probability that the appellant shall prevail upon the merits, and the appellant will suffer irreparable harm if
the order is not stayed: Provided, That in no event shall the
stay or supersedeas of the order exceed one hundred fifty days.
Notwithstanding the provisions of section four, article five,
chapter twenty-nine-a of this code, the commissioner may not be
compelled to transmit a certified copy of the transcript of the
hearing to the circuit court in less than sixty days.
(r) In any revocation or suspension pursuant to this
section, if the driver whose license is revoked or suspended had
not reached the driver's eighteenth birthday at the time of the
conduct for which the license is revoked or suspended, the
driver's license shall be revoked or suspended until the
driver's eighteenth birthday, or the applicable statutory period
of revocation or suspension prescribed by this section,
whichever is longer.
(s) Funds for this section's hearing and appeal process may
be provided from the drunk driving prevention fund, as created
by section forty-one, article two, chapter fifteen of this code,
upon application for such funds to the commission on drunk
driving prevention.
§17C-5A-3a. Establishment of and participation in the motor
vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate a motor vehicle alcohol test and lock program for
persons whose licenses have been revoked pursuant to this
article or the provisions of article five of this chapter. Such
program shall include the establishment of a users fee for
persons participating in the program which shall be paid in
advance and deposited into the driver's rehabilitation fund.
Except where specified otherwise, the use of the term "program"
in this section refers to the motor vehicle alcohol test and
lock program. 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 provisions of this
section. Such rules shall also prescribe those requirements
which, in addition to the requirements specified by this section
for eligibility to participate in the program, the commissioner
determines must be met to obtain the commissioner's approval to
operate a motor vehicle equipped with a motor vehicle alcohol
test and lock system. For purposes of this section, a "motor
vehicle alcohol test and lock system" means a mechanical or
computerized system which, in the opinion of the commissioner,
prevents the operation of a motor vehicle when, through the
system's assessment of the blood alcohol content of the person
operating or attempting to operate the vehicle, such person is determined to be under the influence of alcohol.
(b) (1) Any person whose license has been revoked pursuant
to this article or the provisions of article five of this
chapter is eligible to participate in the program when such
person's minimum revocation period as specified by subsection
(c) of this section has expired and such person is enrolled in
or has successfully completed the safety and treatment program
or presents proof to the commissioner within sixty days of
receiving approval to participate by the commissioner that he or
she is enrolled in a safety and treatment program: Provided,
That no person whose license has been revoked pursuant to the
provisions of section one-a of this article for conviction of an
offense defined in subsection (a) or (b), section two, article
five of this chapter, or pursuant to the provisions of
subsection (f) or (g), section two of this article, shall be
eligible for participation in the program: Provided, however,
That any person whose license is revoked pursuant to this
article or pursuant to article five of this chapter for an act
which occurred either while participating in or after
successfully completing the program shall not again be eligible
to participate in such program.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article 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
eight
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: Provided, That 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. 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:
(A) 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;
(B) The person will pay all costs of the educational program, any administrative costs and all costs assessed for any
suspension hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program shall
operate a motor vehicle unless approved to do so by the
commissioner.
(c) 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 or the provisions of article five of this chapter
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.
(d) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to such person, and such
person shall be required to exhibit on demand, a driver's
license which shall reflect that such person is restricted to
the operation of a motor vehicle which is equipped with an
approved motor vehicle alcohol test and lock system.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the restoration of such 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.
(f) 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 such person's
participation in the motor vehicle alcohol test and lock program
shall be 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 shall be entitled to expungement
under the provisions of this subsection only once. The
expungement shall be accomplished by physically marking the
records to show that such records have been expunged, and by
securely sealing and filing the records. Expungement shall have
the legal effect as if the suspension never occurred. The
records shall 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.
(g) 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. 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 county or regional jail not more than six
months and fined not less than one hundred dollars nor more than
one thousand dollars: Provided, That 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 such is a condition of
his or her employment.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 7. LAW ENFORCEMENT, MOTOR BOATING, LITTER.
§20-7-18. Care in handling watercraft; duty to render aid after
a collision, accident or casualty accident reports.
(a) No person shall operate a motorboat, jet ski or other
motorized vessel or manipulate any water skis, surfboard or
similar device in a reckless or negligent manner so as to
endanger the life, limb or property of any person.
(b) No person shall operate any motorboat, jet ski or other
motorized vessel, or manipulate any water skis, surfboard or
similar device while under the influence of alcohol or a
controlled substance or drug, under the combined influence of
alcohol and any controlled substance or any other drug, or while
having an alcohol concentration in his or her blood of ten eight
hundredths of one percent or more, by weight.
(c) It shall be the duty of the operator of a vessel
involved in a collision, accident or other casualty, so far as
he or she can do so without serious danger to his or her own
vessel, crew and passengers (if any), to render to other persons
affected by the collision, accident or other casualty such
assistance as may be practicable and as may be necessary in
order to save them from or minimize any danger caused by the
collision, accident or other casualty, and also to give his or
her name, address and identification of his or her vessel in
writing to any person injured and to the owner of any property
damaged in the collision, accident or other casualty.
(d) The operator of a vessel involved in a collision,
accident or other casualty shall file an accident report with
the director if the incident results in a loss of life, in a
personal injury that requires medical treatment beyond first aid
or in excess of five hundred dollars damage to a vessel or other
property. The report shall be made on such forms and contain
information as prescribed by the director. Upon a request duly
made by an authorized official or agency of the United States,
any information compiled or otherwise available to the director
pursuant to this subsection shall be transmitted to the official
or agency.
§20-7-18b. Operating under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel
in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her
blood of ten eight
hundredths of one percent or more, by weight;
and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, which act or
failure proximately causes the death of any person within one
year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the 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.
(b) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel
in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her
blood of ten eight
hundredths of one percent or more, by weight;
and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, which act or
failure proximately causes the death of any person within one
year next following the act or failure, 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.
(c) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel
in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her
blood of ten eight
hundredths of one percent or more, by weight;
and
(2) When so operating does any act forbidden by law or fails
to perform any duty imposed by law in the operating of the
motorboat, jet ski or other motorized vessel, which act or
failure proximately causes bodily injury to any person other
than himself or herself, 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, which
jail term shall include actual confinement of not less than
twenty-four hours, and shall be fined not less than two hundred
dollars nor more than one thousand dollars.
(d) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel
in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her
blood of ten eight
hundredths of one percent or more, by weight;
(2) 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, which jail term shall
include actual confinement of not less than twenty-four hours,
and shall be fined not less than one hundred dollars nor more
than five hundred dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, operates a motorboat,
jet ski or other motorized vessel in this state, 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, which jail term shall include actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five
hundred dollars.
(f) Any person who:
(1) Knowingly permits his or her motorboat, jet ski or other
motorized vessel to be operated in this state by any other
person who is:
(A) Under the influence of alcohol; or
(B) Under the influence of any controlled substance; or
(C) Under the influence of any other drug; or
(D) Under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of ten
eight
hundredths of one percent or more, by weight;
(2) 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.
(g) Any person who:
Knowingly permits his or her motorboat, jet ski or other
motorized vessel to be operated in this state by any other
person who is an habitual user of narcotic drugs or amphetamine
or any derivative thereof, 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.
(h) Any person under the age of twenty-one years who
operates a motorboat, jet ski or other motorized vessel 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 eight
hundredths of one percent, by weight, shall,
for a first offense under this subsection, be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not
less than twenty-five dollars nor more than one hundred dollars.
For a second or subsequent offense under this subsection, such
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.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or
(i) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.
(i) Any person who:
(1) Operates a motorboat, jet ski or other motorized vessel in this state while:
(A) He or she is under the influence of alcohol; or
(B) He or she is under the influence of any controlled
substance; or
(C) He or she is under the influence of any other drug; or
(D) He or she is under the combined influence of alcohol and
any controlled substance or any other drug; or
(E) He or she has an alcohol concentration in his or her
blood of ten eight
hundredths of one percent or more, by weight;
and
(2) The person when so operating has on or within the
motorboat, jet ski or other motorized vessel one or more other
persons who are unemancipated minors who have not reached their
sixteenth birthday, shall be 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,
which jail term shall include actual confinement of not less
than forty-eight hours, and shall be fined not less than two
hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second
offense under this section, is guilty of a misdemeanor and, upon
conviction thereof, 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.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section shall, for the third
or any subsequent offense under this section, be guilty of a
felony and, upon conviction thereof, shall be imprisoned in the
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.
(l) For purposes of subsections (j) and (k) of this section
relating to second, third and subsequent offenses, the following
types of convictions shall be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of this section for an offense which
occurred on or after the effective date of this section;
(2) Any conviction under the provisions of subsection (a)
or (b) of this section for an offense which occurred within a
period of five years immediately preceding the date of the
offense; and
(3) 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 subsection (a), (b), (c), (d), (e), (f) or
(g) of this section, which offense occurred after the effective
date of this section.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this
section if the person has been previously arrested for or
charged with a violation of this section which 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. The warrant or indictment or information shall set
forth the date, location and particulars of the previous offense
or offenses. No person may be convicted of a second or
subsequent offense under this section unless the conviction for
the previous offense has become final.
(n) The fact that any person charged with a violation of
subsection (a), (b), (c), (d) or (e) of this section, or any
person permitted to operate as described under subsection (f) or
(g) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b),
(c), (d), (e), (f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" shall have the meaning ascribed to it in chapter
sixty-a of this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be 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.
CHAPTER 33. INSURANCE.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY
POLICIES.
§33-6A-1. Cancellation prohibited except for specified reasons;
notice.
No insurer once having issued or delivered a policy
providing automobile liability insurance for a private passenger
automobile may, after the policy has been in effect for sixty
days, or in case of renewal effective immediately, issue or cause to issue a notice of cancellation during the term of the
policy except for one or more of the reasons specified in this
section:
(a) The named insured fails to make payments of premium for
the policy or any installment of the premium when due;
(b) The policy is obtained through material
misrepresentation;
(c) The insured violates any of the material terms and
conditions of the policy;
(d) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under the policy:
(1) Has had his or her operator's license suspended or
revoked during the policy period including suspension or
revocation for failure to comply with the provisions of article
five-a, chapter seventeen-c of this code, regarding consent for
a chemical test for intoxication: Provided, That when a license
is suspended for sixty days by the commissioner of motor
vehicles because a person drove 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 eight
hundredths of one percent, by weight,
pursuant to subsection (l), section two, article five-a, chapter seventeen-c of this code, the suspension shall not be grounds
for cancellation; or
(2) Is or becomes subject to epilepsy or heart attacks and
the individual cannot produce a certificate from a physician
testifying to his or her ability to operate a motor vehicle.
(e) The named insured or any other operator, either residing
in the same household or who customarily operates an automobile
insured under such policy, is convicted of or forfeits bail
during the policy period for any of the following reasons:
(1) Any felony or assault involving the use of a motor
vehicle;
(2) Negligent homicide arising out of the operation of a
motor vehicle;
(3) Operating a motor vehicle while under the influence of
alcohol or of any controlled substance or while having an
alcohol concentration in his or her blood of ten eight
hundredths of one percent or more, by weight;
(4) Leaving the scene of a motor vehicle accident in which
the insured is involved without reporting it as required by law;
(5) Theft of a motor vehicle or the unlawful taking of a
motor vehicle;
(6) Making false statements in an application for a motor vehicle operator's license;
(7) Three or more moving traffic violations committed within
a period of twelve months, each of which results in three or
more points being assessed on the driver's record by the
division of motor vehicles, whether or not the insurer renewed
the policy without knowledge of all such violations. Notice of
any cancellation made pursuant to this subsection shall be
mailed to the named insured either during the current policy
period or during the first full policy period following the date
that the third moving traffic violation is recorded by the
division of motor vehicles.
Notwithstanding any of the provisions of this section to the
contrary, no insurer may cancel a policy of automobile liability
insurance without first giving the insured thirty days' notice
of its intention to cancel: Provided, That cancellation of the
insurance policy by the insurer for failure of consideration to
be paid by the insured upon initial issuance of the insurance
policy is effective upon the expiration of ten days' notice of
cancellation to the insured.
NOTE: The purpose of this bill is to reduce the allowable
blood alcohol content for driving under the influence from 0.10
to 0.08 of one percent of body weight.
Strike-throughs indicate language that would be stricken
from present law and underscoring indicates new language that would be added.