H. B. 2203

(By Delegates Smirl, Michael, Morgan and Mahan)

(Originating in the Committee on the Judiciary)

[January 22, 2003]

A BILL to amend and reenact sections forty-three and forty-nine, article fifteen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to requiring all new and used automobiles to be equipped with safety seat belts for all seating locations; prohibiting children from riding in certain cargo areas; and making the offense of failure to wear a safety belt a primary offense and changing the penalty therefor.

Be it enacted by the Legislature of West Virginia:
That sections forty-three and forty-nine, article fifteen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
§17C-15-43. Vehicles to be equipped with safety belts.
No dealer in new or used automobiles shall sell, lease, transfer or trade, at retail, any passenger automobile which is manufactured after the first day of January, one, one thousand nine hundred sixty-five, unless such the vehicle is equipped with safety seat belts for the front seat, all seating locations, which seat belts shall meet the standards set and approved by the society of automotive engineers, inc.

§17C-15-49. Operation of vehicles with safety belts; exception; penalty; civil actions; educational program by division of West Virginia state police.

(a) Effective the first day of September, one thousand nine hundred ninety-three two thousand three, a person may not operate a passenger vehicle on a public street or highway of this state unless the person, and any passenger in the back seat under eighteen years of age, and any passenger in the front seat any seating position of such the
passenger vehicle is restrained by a safety belt or child passenger safety device meeting applicable federal motor vehicle safety standards. For the purposes of this section, the term "passenger vehicle" means a motor vehicle which is designed for transporting ten passengers or less, including the driver, except that such the term does not include a motorcycle, a trailer, or any motor vehicle which is not required on the date of the enactment of this section under a federal motor vehicle safety standard to be equipped with a belt system. The provisions of this section shall apply to all passenger vehicles manufactured after the first day of January, one thousand nine hundred sixty-seven, and being 1968 models and newer.
(b) The required use of safety belts as provided herein does not apply to a duly appointed or contracted rural mail carrier of the United States postal service who is actually making mail deliveries or to a passenger or operator with a physically disabling condition whose physical disability would prevent appropriate restraint in such the
safety belt if the condition is duly certified by a physician who shall state the nature of the disability as well as the reason such the restraint is inappropriate. The division of motor vehicles shall adopt rules, in accordance with the provisions of chapter twenty-nine-a of this code, to establish a method to certify the physical disability and to require use of an alternative restraint system where feasible or to waive the requirement for the use of any restraint system.
(c) The transportation of any child under the age of sixteen in the enclosed or open cargo area of any passenger vehicle, van, pickup truck, or towed uncovered open bed trailer is prohibited on any street or highway of this state and shall be a violation of this section: Provided, That this section does not apply to any motor vehicle operated as a part of an official or properly authorized and controlled parade or special event, or while engaged in farm work off the streets or highways of this state.

(c)(d) Any person who violates the provisions of this section shall be fined not more than twenty-five dollars. No court costs or other fees shall be assessed for a violation of this section. Enforcement of this section shall be accomplished only as a secondary action when a driver of a passenger vehicle has been detained for probable cause of violating another section of this code.
(d)(e) A violation of this section is not admissible as evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages, and shall may
not be admissible in mitigation of damages: Provided, That the court may, upon motion of the defendant, conduct an in camera hearing to determine whether an injured party's failure to wear a safety belt was a proximate cause of the injuries complained of. Upon such a finding by the court, the court may then, in a jury trial, by special interrogatory to the jury, determine: (1) That the injured party failed to wear a safety belt; and (2) that the failure to wear the safety belt constituted a failure to mitigate damages. The trier of fact may reduce the injured party's recovery for medical damages by an amount not to exceed five percent thereof. In the event the plaintiff stipulates to the reduction of five percent of medical damages, the court shall make the calculations and the issue of mitigation of damages for failure to wear a safety belt shall may not be presented to the jury. In all cases, the actual computation of the dollar amount reduction shall be determined by the court.
( e)(f) Notwithstanding any other provision of this code to the contrary, no points may be entered on any driver's record maintained by the division of motor vehicles as a result of a violation of this section.
(f)(g) Commencing the first day of July, one thousand nine hundred ninety-three, the governor's highway safety program, in cooperation with the division of public safety West Virginia state police and any other state departments or agencies and with county and municipal law-enforcement agencies, shall initiate and conduct an educational program designed to encourage compliance with safety belt usage laws. This program shall be focused on the effectiveness of safety belts, the monetary savings and the other benefits to the public from usage of safety belts and the requirements and penalties specified in this law.
(g)(h) Nothing contained in this section shall be construed to abrogate or alter the provisions of section forty-six of this article relating to the mandatory use of child passenger safety devices.