Senate Bill No. 171

(By Senators Oliverio, Hunter and Rowe)

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[Introduced January 17, 2003; referred to the Committee on Transportation; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact sections forty-three, forty-six 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 seat belts; requiring all new and used automobiles be equipped with safety seat belts for all seating locations; requiring passive restraints and properly adjusted seat belts for children; requiring certain children ride in the rear seat; prohibiting children from riding in certain cargo areas; increasing certain penalties requiring the use of safety belts while operating a motor vehicle; making offense of failure to wear a safety belt a primary offense; and specifying standards for safety belt use.

Be it enacted by the Legislature of West Virginia:
That sections forty-three, forty-six 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:
ARTICLE 15. EQUIPMENT.
§17C-15-43. Vehicles to be equipped with safety belts.
No dealer in new or used automobiles shall may 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 must meet the standards set and approved by the Society of Automotive Engineers, Inc.
§17C-15-46. Child passenger safety device required.
(a) Every driver who transports a child under the age of nine years in a passenger automobile, van or pickup truck other than one operated for hire, shall, while such the motor vehicle is in motion and operated on a street or highway of this state, provide for the protection of such the child by properly placing, maintaining and securing such the child in a child passenger safety device system meeting applicable federal motor vehicle safety standards: Provided, That if such child is between the age of three and eight, both inclusive, a vehicle seat belt shall be sufficient to meet the requirements of this section
(1) For children younger than the age of four years, or weighing less than forty pounds regardless of age, a child passenger restraint system must be used.
(2) For children four years and older weighing forty pounds or more but younger than the age of nine, a properly adjusted safety belt may be used.
(3) All children twelve years old or younger shall be properly secured as provided above in the rear seat of any motor vehicle equipped with a rear seat, unless all available rear seats are in use by other children: Provided, That the provisions of this subdivision do not apply to vehicles manufactured before the first day of January, one thousand nine hundred ninety.
(4) 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 is 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.
(b) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ten dollars twenty-five dollars nor more than twenty one hundred dollars. The provisions of section one-a, article eleven-a and section three, article twelve, all of chapter sixty-two of this code do not apply to any person convicted of a violation of this section.
(c) A violation of this section shall may not be deemed considered by virtue of such the violation to constitute evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
(d) If any provision of this section or the application thereof to any person or circumstance is held invalid, such the invalidity shall may not affect other provisions or applications of this section, and to this end the subsections of this section are declared to be severable.
If all seat belts in a vehicle are being used at the time of examination by a law officer and the vehicle contains more passengers than the total number of seat belts or other safety devices as installed in compliance with federal motor vehicle safety standards, the driver shall not be considered as violating this section.
§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 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 a 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) 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 may 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) 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 not be is not 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 the 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 must be determined by the court.
( e) 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) 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 must be focused on the effectiveness of safety belts, the monetary savings and the other benefits to the public from usage the use of safety belts and the requirements and penalties specified in this law.
(g) Nothing contained in this section shall may 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 .

 NOTE: The purpose of this bill is to modify seat belt and child restraint requirements and to change the offense of failure to wear safety belts to a primary offense. The bill requires all vehicle occupants to wear seatbelts, and prohibits children under the age of 16 from riding in an open or closed cargo area of a passenger vehicle, van, pickup truck or uncovered open bed trailer.
This bill eliminates the provision which allows unbelted passengers if the number of passengers in a vehicle exceeds the number of seat belt locations. Penalties are modified. The fine for violating the child restraint law is increased.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.