ENGROSSED

COMMITTEE SUBSTITUTE

FOR


Senate Bill No. 407

(By Senators Minear and Hunter)

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[Originating in the Committee on the Judiciary;

reported February 26, 2003.]

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A BILL to amend and reenact section three-c, article three, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section thirty-nine-g, article three, chapter sixty-one of said code, all relating to providing that when a person writes a worthless check in this state which results in a summons to appear in magistrate court but then fails to appear, he or she shall have his or her privilege to drive in this state revoked.

Be it enacted by the Legislature of West Virginia:
That section three-c, article three, chapter seventeen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section thirty-nine-g, article three, chapter sixty-one of said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.

§17B-3-3c. Suspending license for failure to pay fines or penalties imposed as the result of criminal conviction or for failure to appear in court.

(a) The division shall suspend the license of any resident of this state or the privilege of a nonresident to drive a motor vehicle in this state upon receiving notice from a circuit court, magistrate court or municipal court of this state, pursuant to section two-b, article three, chapter fifty of this code, or section two-b, article ten, chapter eight of this code, or section thirty-nine-g, article three, chapter sixty-one of this code, or section seventeen, article four, chapter sixty-two of this code, that such person has defaulted on the payment of costs, fines, forfeitures, penalties or restitution imposed on the person by the circuit court, magistrate court or municipal court upon conviction for any criminal offense by the date such court had required such person to pay the same, or that such person has failed to appear in court when charged with such an offense. For the purposes of this section, section two-b, article three, chapter fifty of this code; section two-b, article ten, chapter eight of this code; and section seventeen, article four, chapter sixty-two of this code, "criminal offense" shall be defined as any violation of the provisions of this code, or the violation of any municipal ordinance, for which the violation thereof may result in a fine, confinement in jail or imprisonment in the penitentiary of this state or for worthless check offenses under chapter sixty-one of this code: Provided, That any parking violation or other violation for which a citation may be issued to an unattended vehicle shall not be considered a criminal offense for the purposes of this section, section two-b, article ten, chapter eight of this code; section two-b, article three, chapter fifty of this code; or section seventeen, article four, chapter sixty-two of this code.
(b) A copy of the order of suspension shall be forwarded to such person by certified mail, return receipt requested. No order of suspension becomes effective until ten days after receipt of a copy of such order. The order of suspension shall advise the person that because of the receipt of notice of the failure to pay costs, fines, forfeitures or penalties, or the failure to appear, a presumption exists that the person named in the order of suspension is the same person named in the notice. The commissioner may grant an administrative hearing which substantially complies with the requirements of the provisions of section two, article five-a, chapter seventeen-c of this code upon a preliminary showing that a possibility exists that the person named in the notice of conviction is not the same person whose license is being suspended. Such request for hearing shall be made within ten days after receipt of a copy of the order of suspension. The sole purpose of this hearing shall be for the person requesting the hearing to present evidence that he or she is not the person named in the notice. In the event the commissioner grants an administrative hearing, the commissioner shall stay the license suspension pending the commissioner's order resulting from the hearing.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-39g. Complaint; notice of complaint; issuance of warrant or summons; payment procedures; costs.

After receipt of a complaint for warrant or summons for a violation of section thirty-nine or thirty-nine-a of this article the magistrate court shall proceed with the issuance of the warrant or summons as is provided by law: Provided, That no warrant or summons may issue for an offense under section thirty-nine or thirty-nine-a of this article which, upon conviction, would be punishable as a misdemeanor, unless the payee or holder of the check, draft or order which has been dishonored has sent notice thereof to the drawer of the check, draft or order in accordance with the provisions of section thirty-nine-e of this article, or unless notice has been sent by the magistrate as hereinafter provided. Proof that the notice was sent by the payee or holder may be evidenced by presentation of a return receipt indicating that the notice was mailed to the drawer by certified mail, or, in the event the mailed notice was not received or was refused by the drawer, by presentation of the mailed notice itself. The magistrate court shall receive and hold the check, draft or order.
Upon receipt of a complaint for a misdemeanor warrant unaccompanied by proof that notice was sent by the payee or holder, the magistrate court shall immediately prepare and mail to the drawer of the check, draft or order a notice in form substantially as follows. The magistrate court shall impose any service charge reflected in the complaint as having been imposed on the payee or holder by the payee's or holder's bank or financial institution in connection with the check, draft or order and additional court costs in the amount of ten dollars. This notice shall be mailed to the drawer by United States mail, first class and postpaid, at the address provided at the time of presenting the check, draft or order. Service of this notice is complete upon mailing. The notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for your arrest has been filed with this office to the following effect and purpose by .............. who upon oath complains that on the ....... day of ..............., 19 20......, you did unlawfully issue and deliver unto him or her a certain check, draft or order in the amount of ......................... drawn on .................................................... (name of bank or financial institution) ................. where you did not have funds on deposit in or credit with the bank or financial institution with which to pay the check, draft or order upon presentation and pray that a warrant issue and that you be apprehended wherever you may be found by an officer authorized to make an arrest and dealt with in accordance with the laws of the state of West Virginia.
"A warrant for arrest will be issued on or after the ......... day of ......................., 19 20......
"You can nullify the effect of this complaint and avoid arrest by paying to the magistrate court clerk at ...................... the amount due on the check, draft or order; service charges imposed on the payee or holder by the payee's or holder's bank or financial institution in connection with the check, draft or order in the amount of ..........; and the costs of this proceeding in the amount of ten dollars on or before the .......... day of ...................., 19 20......, at which time you will be given a receipt with which you can obtain the check, draft or order from the magistrate court. The complainant is forbidden by law to accept payment after the complaint is filed.
Magistrate Court of .................. County
.............................................
Date: .............................."
This notice shall give the drawer of any such check, draft or order ten days within which to make payment to magistrate court. In the event the drawer pays the total amount set forth in the notice to the magistrate court within the ten-day period, no warrant or summons may issue. The payment may be made to the magistrate court in person or by mail by cash, certified check, bank draft or money order and, in the event the payment is made by mail, the magistrate court clerk shall immediately mail to the maker of the check, draft or order the receipt required by this section. In the event the total amount is not so paid the court shall proceed with the issuance of the warrant or summons as is provided by law.
Upon receipt of payment of the total amount the magistrate court clerk shall issue to the drawer a receipt sufficiently describing the check, draft or order with which receipt the drawer is entitled to receive the dishonored check, draft or order from the magistrate court holding it. The magistrate court clerk shall forward the amount of the check, draft or order, together with any service charge reflected on the complaint as having been imposed on the payee or holder by the payee's or holder's bank or financial institution in connection with the check, draft or order, to the payee or holder thereof, along with a description of the check, draft or order sufficient to enable the person filing the complaint to identify it and the transaction involved. Costs collected shall be dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant or summons has been issued may at any time prior to trial pay to the court the amount of the check, draft or order; any service charge reflected in the complaint as having been imposed on the payee or holder by the payee's or holder's bank or financial institution in connection with the check, draft or order; and the court costs which would be assessed if the person were found guilty of the offense charged. These costs shall be imposed in accordance with the provisions of section two, article three, chapter fifty of this code.
Any summons issued under this section shall state a date, time and place in which the drawer shall be required to appear before a magistrate in the county wherein the worthless check, draft or order issued, and be forwarded to the drawer's last known address. The drawer shall also be given the option, in lieu of appearing, to make payment of the amount of the worthless check, draft or order plus any applicable court costs.
In the event the drawer fails to appear pursuant to the summons and fails to satisfy the amount of the worthless check, draft or order plus applicable court costs, the clerk of the court shall forward his or her name and address to the West Virginia division of motor vehicles which shall revoke his or her privilege to operate a motor vehicle in this state, pursuant to section three-c, article three, chapter seventeen-b of this code.