SB535 H JUD AM 3-5 #1
The Committee of the Judiciary moves to amend the bill on page
four, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following:
That §17B-4-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code
be amended and reenacted; and that §17C-5A-1, §17C-5A-2, §17C-5A-3
and §17C-5A-3a of said code be amended and reenacted, all to read
as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-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 a period of not
less than thirty days nor more than ninety days 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 any combination
thereof, or for driving while having an alcoholic concentration in
his or her blood of 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 a period of not less than thirty days nor more
than 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 not less than six months
nor more than 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 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 that person
was lawfully suspended or revoked, the division shall extend the
period of such the suspension or revocation for an additional
period of one year six months which may be served concurrently with
any other suspension or revocation. 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 that person
was lawfully suspended or revoked, the division shall extend the
period of such the suspension or revocation for an additional
period of one year ninety days which may be served concurrently with any other suspension or revocation. 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
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.
Upon receiving a record of a first or subsequent conviction
under this subsection for a charge of driving a vehicle while the
license of that person was lawfully suspended or revoked, the
division shall extend the period of the suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
(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 eight
hundredths of one percent or more, by weight; and
(2) When so While 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 two
years 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 eight
hundredths of one percent or more, by weight; and
(2) When so While 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
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 eight hundredths of one percent or more, by weight; and
(2) When so While 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 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 eight
hundredths of one percent or more, by weight, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for up to 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. A person
sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the
subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days 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 two hundred dollars nor
more than one thousand dollars. A person sentenced pursuant to
this subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) (f) 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 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. A person
sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the
subject offense.
(f) (g) 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 eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(g) (h) 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 jail for not more than six months and shall be fined
not less than one hundred dollars nor more than five hundred
dollars.
(h) (i) 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 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 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 Motor
Vehicle Alcohol Test and Lock Program as provided 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 this subsector or subsection (a), (b), (c), (d), (e),
(f), (g) or (h) of this section may not also be charged with an
offense under this subsection arising out of the same transaction
or occurrence.
(i) (j) 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 eight
hundredths of one percent or more, by weight; and
(2) The person when so while 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
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) (k) 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 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) (l) 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) (m) For purposes of subsections (j) and (k) and (l) 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) or (g) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) 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) or (h)
of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) (n) 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 period 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) (o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), or (e) or (f) of this section, or
any person permitted to drive as described under subsection (f) or
(g) or (h) 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) or (h) of this section.
(o) (p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) (q) The sentences provided herein in this section upon
conviction for a violation of this article are mandatory and may
not be are not 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 for a first offense under this section. An
order for home detention by the court pursuant to the provisions of
article eleven-b of said chapter may be used as an alternative
sentence to any period of incarceration required by this section
for a first or subsequent offense: Provided, however, That for any
period of home incarceration ordered for a person convicted of
second offense under this section, electronic monitoring shall be
required for no fewer than five days of the total period of home
confinement ordered and the offender may not leave home for those
five days notwithstanding the provisions of section five, article
eleven-b, chapter sixty-two of this code: Provided further, That
for any period of home incarceration ordered for a person convicted
of a third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested is
incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given: Provided, That prior to such the refusal, the person is given a an oral warning and a written
statement advising him or her that his or her refusal to submit to
the secondary test finally designated will result in the revocation
of his or her license to operate a motor vehicle in this state for
a period of at least forty-five days and up to life; and that after
fifteen minutes following the warnings If a person initially
refuses to submit to the designated secondary chemical test after
being informed in writing of the consequences of such refusal, he
shall be informed orally and in writing that after fifteen minutes
said the refusal shall be deemed to be is considered final. and the
The arresting officer shall after said that period of time expires
have has no further duty to provide the person with an opportunity
to take the secondary test. The officer shall, within forty-eight
hours of such the refusal, sign and submit to the Commissioner of
Motor Vehicles a written statement of the officer that: (1) He or
she had reasonable grounds to believe such the person had been
driving a motor vehicle in this state while under the influence of
alcohol, controlled substances or drugs; (2) such 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) such the person refused to
submit to the secondary chemical test finally designated in the
manner provided in section four of this article; and (4) such the
person was given a written statement advising him or her that his or her license to operate a motor vehicle in this state would be
revoked for a period of at least one year forty-five days and up to
life if he or she refused to submit to the secondary test finally
designated in the manner provided in section four of this article.
The signing of the statement required to be signed by this section
shall constitute constitutes an oath or affirmation by the person
signing such the statement that the statements contained therein in
the statement are true and that any copy filed is a true copy.
Such 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. Upon receiving
the statement the commissioner shall make and enter an order
revoking such the person's license to operate a motor vehicle in
this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking such the person's license to operate a motor vehicle in
this state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a, chapter seventeen-c of this code:
Provided, That a person revoked for driving while under the
influence of drugs is not eligible to participate in the Motor Vehicle Test and Lock Program. The application for participation
in the Motor Vehicle Alcohol Test and Lock Program shall be
considered to be a waiver of the hearing provided in section two,
article five-a of this chapter. If the commissioner has previously
revoked the person's license under the provisions of this section,
the commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking such the
person's license to operate a motor vehicle in this state for a
period of ten years: Provided, That the license may be reissued in
five years in accordance with the provisions of section three,
article five-a of this chapter. If the commissioner has previously
revoked the person's license more than once under the provisions of
this section, the commissioner shall, for the refusal to submit to
the designated secondary chemical test, make and enter an order
revoking such the person's license to operate a motor vehicle in
this state for a period of life: Provided, however, That the
license may be reissued in ten years in accordance with the
provisions of section three, article five-a of this chapter. A
copy of each such order shall be forwarded to such the person by
registered or certified mail, return receipt requested, and shall
contain the reasons for the revocation and shall specify the
revocation period imposed pursuant to this section. No such A
revocation shall not become effective until ten days after receipt
of the copy of such the order. Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of
refusal shall be deemed considered not to have withdrawn his or her
consent for a test of his or her blood, breath or urine as provided
in section four of this article and the test may be administered
although such the person is not informed that his or her failure to
submit to the test will result in the revocation of his or her
license to operate a motor vehicle in this state for the period
provided for in this section.
A revocation hereunder under this section shall run
concurrently with the period of any suspension or revocation
imposed in accordance with other provisions of this code and
growing out of the same incident which gave rise to the arrest for
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs and the subsequent refusal to
undergo the test finally designated in accordance with the
provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) 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 of this article for conduct which occurred on or after the tenth day of
June tenth, one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter for conduct which occurred on or
after the tenth day of June tenth, one thousand nine hundred
eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
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 drugs 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 alcohol concentration in his
or her blood of eight hundredths of one percent or more, by weight,
or did refuse to submit to any designated secondary chemical test
required under the provisions of article five, chapter seventeen-c
of this code 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
eight hundredths of one percent, by weight.
(b) Any law-enforcement officer arresting investigating 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
shall report to the Commissioner of the Division of Motor Vehicles
by written statement within forty-eight hours of the arrest
conclusion of the investigation the name and address of the person
so arrested believed to have committed the offense. 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 constitutes an oath
or affirmation by the person signing the statement that the
statements contained therein in the statement 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 determines that a person
was arrested for committed 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 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 eight hundredths of one percent or more, by
weight, or at the time the person was arrested committed the
offense he or she was under the influence of alcohol, controlled
substances or drugs, the commissioner shall make and enter an order
revoking or suspending 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 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 A revocation or suspension shall not
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 of said article 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 br signed by this subsection shall constitute
constitutes an oath or affirmation by the person signing such the
statement that the statements contained therein in the statement
are true and that any copy filed is a true copy. Such 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.
(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 test
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) or (h), 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) or (h), 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
the 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 A suspension or revocation shall not
become effective until ten days after receipt of a copy of such the
order.
§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 the
Division 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 commissioner may reject or modify the hearing
examiner's proposed findings of fact and conclusions of law, in
writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division
located in or near the county wherein in which the arrest was made
in this state or at some other suitable place in the county wherein
in which the arrest was made if an office of the division is not
available.
(b) (c) Any such hearing shall be held within one hundred
eighty days after the date upon which the commissioner received the
timely written request therefor for a hearing 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
the 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 may 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 constitutes a subpoena to appear at the hearing without
the necessity of payment of fees by the Division of Motor Vehicles.
(c) (d) Any investigating officer who submits a statement
pursuant to section one of this article that results in a hearing
pursuant to this section shall not attend the hearing on the
subject of that affidavit unless requested to do so by the party
whose license is at issue in that hearing or by the commissioner.
The hearing request form shall clearly and concisely inform a
person seeking a hearing of the fact that the investigating officer
will only attend the hearing if requested to do so and provide for
a box to be checked requesting the investigating officer's
attendance. The language shall appear prominently on the hearing
request form. The Division of Motor Vehicles is solely responsible
for causing the attendance of the investigating officers. 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. If the party whose license is at issue does not request
the investigating officer to attend the hearing, the commissioner
shall consider the written statement, test results and any other
information submitted by the investigating officer pursuant to
section one of this article in that officer's absence.
(d) (e) 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 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 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 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 eight hundredths of one
percent, by weight, intends to challenge the results of any
secondary chemical test of blood, breath or urine under section
seven, article five of this chapter, 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 his or her 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 the 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) (f) In the case of a hearing wherein in which 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 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 eight
hundredths of one percent, by weight, the commissioner shall make
specific findings as to: (1) Whether the arresting investigating
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 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 eight hundredths of one percent,
by weight; (2) whether the person was lawfully placed under arrest
for committed 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) (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 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 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) (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 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) (i) 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 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) (j) 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 eight hundredths of one percent or more, by
weight, but less than fifteen 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 eight
hundredths of one percent or more, by weight the commissioner shall
revoke the person's license for a period of six months or a period
of fifteen days with an additional one hundred and twenty days of
participation in the Motor Vehicle Alcohol Test and Lock Program in
accordance with the provisions of section three-a, article five-a,
chapter seventeen-c of this code: Provided, That a person whose license is revoked for driving while under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test
and Lock Program: Provided, further however, 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 Provided further, 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.
(k) (1) If in addition to finding by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the
commissioner also finds by a preponderance of the evidence that the
person did drive a motor vehicle while having an alcohol
concentration in the person's blood of fifteen hundredths of one
percent or more, by weight, the commissioner shall revoke the
person's license for a period of forty-five days with an additional
two hundred and seventy days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of
article three-a, article five-a, chapter seventeen-c of this code:
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.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the
alcohol test and lock device may be installed or is otherwise
incapable of participating in the Motor Vehicle Alcohol Test and
Lock Program, the period of revocation shall be one hundred eighty
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 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) (l) 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 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) (m) 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 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) (n) 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 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) (o) 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 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) (p) 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; or
(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) (q) In the case of a hearing wherein in which 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 committed
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 forty-five days and up to life if the person refused to submit
to the test finally designated in the manner provided in said
section.
(p)(r) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement investigating
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 committed 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 forty-five days
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) (s) 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 supersede
as 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 supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the file or the transcript of the hearing to the circuit court in
less than sixty days.
(r) (t) 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) (u) 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 the funds to the Commission on Drunk
Driving Prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Division of Motor Vehicles, in cooperation with the
Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code establishing a comprehensive safety and
treatment program for persons whose licenses have been revoked
under the provisions of this article or section seven, article five
of this chapter or subsection (6), section five, article three,
chapter seventeen-b of this code and shall likewise also establish
the minimum qualifications for mental health facilities or other
public agencies or private entities conducting the safety and treatment program: Provided, That the commissioner Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse
may establish standards whereby the division will accept or approve
participation by violators in another treatment program which
provides the same or substantially similar benefits as the safety
and treatment program established pursuant to this section.
(b) The program shall include, but not be limited to,
treatment of alcoholism, alcohol and drug abuse, psychological
counseling, educational courses on the dangers of alcohol and drugs
as they relate to driving, defensive driving or other safety
driving instruction and other programs designed to properly
educate, train and rehabilitate the offender.
(b) (c) (1) The Division of Motor Vehicles, in cooperation
with the Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational and treatment program for each person whose license has
been revoked under the provisions of this article or section seven,
article five of this chapter or subsection (6), section five,
article three, chapter seventeen-b of this code which shall contain
the following: (A) A listing and evaluation of the offender's
prior traffic record; (B) The characteristics and history of
alcohol or drug use, if any; (C) His or her amenability to
rehabilitation through the alcohol safety program; and (D) a
recommendation as to treatment or rehabilitation and the terms and conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment. The cost of the program shall be paid
out of fees established by the Commissioner of Motor Vehicles in
cooperation with the Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse. The program provider shall
collect the established fee from each participant upon enrollment.
The program provider shall also at the time of enrollment remit to
the commissioner a portion of the collected fee established by the
commissioner in cooperation with the Department of Health and Human
Resources, which shall be deposited into an account designated the
Driver's Rehabilitation Fund: Provided, That on and after the
first day of July, two thousand seven, any unexpended balance
remaining in the driver's rehabilitation fund shall be transferred
to the Motor Vehicle Fees Fund created under the provisions of
section twenty-one, article two, chapter seventeen-a of this code
and all further fees collected shall be deposited in that fund.
(2) The Department of Health and Human Resources shall
establish a fee by legislative rule proposed pursuant to article
three, chapter twenty-nine-A of the Code to be collected from each
offender enrolled in the safety and treatment program. The program
provider shall collect the established fee from each participant
upon enrollment unless the Department has determined that the
participant is an indigent based upon criteria established pursuant to subdivision (3) of this subsection. The Department of Health
and Human Services shall reimburse enrollment fees to program
providers for each eligible indigent offenders.
(3) The Department of Health and Human Resources shall
establish by legislative rule, proposed pursuant to article three,
chapter twenty-nine-A of this Code, criteria to determine the
eligibility for the payment of safety and treatment services for
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment for safety and training services for eligible
offenders.
(4) On or before the fifteenth day of January, of each year,
the Secretary of the Department of Health and Human Resources shall
report to the Legislature on:
(A) The total number of offenders participating in the safety
and treatment program during the prior year;
(B) The total number of indigent offenders participating in
the safety and treatment program during the prior year;
(C) The total number of program providers during the prior
year; and
(D) The total amount of reimbursements paid to program
provider during the prior year.
(2) (5) The commissioner after giving due consideration to the
program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate
a motor vehicle in this state revoked under this article or section
seven, article five of this chapter or subsection (6), section
five, article three, chapter seventeen-b of this code which shall
include successful completion of the educational, treatment or
rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a revocation
hearing have been paid;
(B) When the period of revocation is for a period of years one
year or for more than a year, the license to operate a motor
vehicle in this state shall not be reissued until: (i) At least
one half of such the time period has elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) The offender has successfully completed the
program; (iii) All costs of the program and administration have
been paid; and (iv) All costs assessed as a result of a revocation hearing have been paid. Notwithstanding any provision in this
code, a person whose license is revoked for refusing to take a
chemical test as required by section seven, article five of this
chapter for a first offense is not eligible to reduce the
revocation period by completing the safety and treatment program.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this state shall not be reissued until:
(i) At least ten years have elapsed from the date of the initial
revocation, during which time the revocation was actually in
effect; (ii) the offender has successfully completed the program;
(iii) all costs of the program and administration have been paid;
and (iv) all costs assessed as a result of a revocation hearing
have been paid.
(D) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private
entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program shall only have to certify that such the person
has successfully completed the program.
(c) (d) (1) The Division of Motor Vehicles, in cooperation
with the Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational program for each person whose license has been
suspended for sixty days pursuant to the provisions of subsection (l) (n), section two, article five-a of this chapter. The
educational program shall consist of not less than twelve nor more
than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered,
the license to operate a motor vehicle shall not be reinstated
until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect; (B) the offender has successfully completed the
educational program; (C) all costs of the program and
administration have been paid; and (D) all costs assessed as a
result of a suspension hearing have been paid.
(d) A required component of the rehabilitation program
provided for in subsection (b) of this section and the education
program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program
providing a forum for victims of alcohol and drug-related offenses
and offenders to share first-hand experiences on the impact of
alcohol- and drug-related offenses in their lives. The
commissioner Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall propose legislative rules for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code to and implement a plan for victim impact
panels where appropriate numbers of victims are available and
willing to participate and shall establish guidelines for other innovative programs which may be substituted where such the victims
are not available so as to assist persons whose licenses have been
suspended or revoked for alcohol and drug-related offenses to gain
a full understanding of the severity of their offenses in terms of
the impact of such the offenses on victims and offenders. The
legislative rules proposed for promulgation by the commissioner
plan shall require, at a minimum, discussion and consideration of
the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug-related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall
contain provisions which The Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse, shall ensure that
any meetings between victims and offenders shall be
nonconfrontational and ensure the physical safety of the persons
involved.
§17C-5A-3a. Establishment of and participation in the Motor
Vehicle Alcohol Test and Lock Program.
(a) (1) 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 or have been convicted
under section two, article five of this chapter.
(2) The 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:
Provided, That on and after the first day of July, two thousand
seven, any unexpended balance remaining in the Driver's
Rehabilitation Fund shall be transferred to the Motor Vehicle Fees
Fund created under the provisions of section twenty-one, article
two, chapter seventeen-a of this code and all further fees
collected shall be deposited in that fund.
(3) 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. The 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.
(4) 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, the person is determined to be under the
influence of alcohol.
(5) The commissioner shall establish by legislative rule,
proposed pursuant to article three, chapter twenty-nine-A of this
Code, criteria to determine the eligibility for the payment of the
installation of ignition interlock devices in the vehicles of
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment of installations for eligible offenders.
(6) On or before the fifteenth day of January, of each year,
the commissioner of the division of motor vehicles shall report to
the Legislature on:
(A) The total number of offenders participating in the program
during the prior year;
(B) The total number of indigent offenders participating in the program during the prior year;
(C) The terms of any contracts with the providers of ignition
interlock devices ; and
(D) The total cost of the program to the state during the
prior year.
(b)(1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this
chapter is eligible to participate in the program when the person's
minimum revocation period as specified by subsection (c) of this
section has expired and the 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 anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and the 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.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l) (n), 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 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 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
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 comply with the following conditions:
(A) If not already enrolled, the person will shall enroll in
and complete the educational program provided for in subsection (c)
(d), 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 shall 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 a person eligible to participate in the program under
this subsection may not operate a motor vehicle unless approved to
do so by the commissioner.
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device 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 subsection
(d) or (f) (g), section two, article five of this chapter or
pursuant to subsection (i) (j), section two of this article, the
minimum period of revocation for participation in the test and lock
program is thirty fifteen days and the minimum period for the use
of the ignition interlock device is five months one hundred and
twenty-five days;
(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 for participation in the test and lock
program is thirty forty-five days and the minimum period for the
use of the ignition interlock device is nine months one year;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of an offense defined in subsection (e), section two, article five of
this chapter or pursuant to subsection (j), section two of this
article, the minimum period of revocation for participation in the
test and lock program is forty-five days and the minimum period for
the use of the ignition interlock device is two hundred seventy
days;
(3) (4) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection
(f), section two of this article, the minimum period of revocation
before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device is two years;
(4) (5) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (b),
section two, article five of this chapter or pursuant to subsection
(g), section two of this article, the minimum period of revocation
is six months and the minimum period for the use of the ignition
interlock device is two years;
(5) (6) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (c), section two, article five of this chapter or pursuant to subsection
(h), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is one year;
(6) (7) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (i) (j),
section two, article five of this chapter or pursuant to subsection
(m), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is
convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or his or her license was revoked under
any provision cited in this subsection within the past ten years.
The minimum revocation period for a person required to participate
in the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection (l) (n), section
two of this article or subsection (h) (i), section two, article five of this chapter is two months and the minimum period of
participation is one year. The division shall add an additional
two months to the minimum period for the use of the ignition
interlock device if the offense was committed while a minor was in
the vehicle. The division shall add an additional six months to
the minimum period for the use of the ignition interlock device if
a person other than the driver received injuries. The division
shall add an additional two years to the minimum period for the use
of the ignition interlock device if a person other than the driver
is injured and the injuries result in that person's death. The
division will shall add one year to the minimum period for the use
of the ignition interlock device for each additional previous
conviction or revocation within the past ten years. Any person
required to participate under this subsection must have an ignition
interlock device installed on every vehicle he or she owns or
operates.
(e) Notwithstanding any other provision in this code, a person
whose license is revoked for driving under the influence of drugs
is not eligible to participate in the Motor Vehicle Test and Lock
Program.
(e) (f) An applicant for the test and lock program may 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 six-month period preceding the date of application for admission to
the test and lock program unless such is necessary for employment
purposes.
(f) (g) Upon permitting an eligible person to participate in
the program, the commissioner shall issue to the person, and the
person is required to exhibit on demand, a driver's license which
shall reflect that the person is restricted to the operation of a
motor vehicle which is equipped with an approved motor vehicle
alcohol test and lock system.
(g) (h) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(h) (i) A person whose license has been suspended pursuant to
the provisions of subsection (l) (n), section two of this article
who has completed the educational program and who has not violated
the terms required by the commissioner of the person's
participation in the program is 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 is entitled to expungement under
the provisions of this subsection only once. The expungement shall
be accomplished by physically marking the records to show that the
records have been expunged and by securely sealing and filing the
records. Expungement has the legal effect as if the suspension
never occurred. The records may 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 the
information does not divulge the identity of the person.
(i) (j) 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
that 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 attempts to bypass the alcohol test and
lock 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 the operation is a
condition of his or her employment. For the purpose of this
section, job site does not include any street or highway open to
the use of the public for purposes of vehicular traffic.