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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2444
(By Delegates Amores, Palumbo, Pethtel,
Stemple and Craig)
[Passed April 9, 2005; in effect ninety days from passage.]
AN ACT
to amend
and reenact §17C-5-2 of
the code of West Virginia,
1931, as amended
; and to amend reenact §17C-5A-3a,
all
relating to compliance with federal funding requirements
regarding driving under the influence offenders; limiting work
release to convictions for a first offense; and the creation
of mandatory periods of electronically monitored home
confinement.
Be it enacted by the Legislature of West Virginia:
That section §17C-5-2 of the code of West Virginia, 1931, as
amended, be amended and reenacted; and that §17C-5A-3a of said code
be amended and reenacted, all to read as follows:
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 driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor
more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for not less than one day nor more than one year, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(f) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not more than
six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof, is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
the county or regional jail for not more than six months and shall
be fined not less than one hundred dollars nor more than five
hundred dollars.
(h) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection, is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars. A person who is charged with a first offense
under the provisions of this subsection may move for a continuance
of the proceedings, from time to time, to allow the person to
participate in the vehicle alcohol test and lock program as
provided for in section three-a, article five-a of this chapter.
Upon successful completion of the program, the court shall dismiss
the charge against the person and expunge the person's record as it
relates to the alleged offense. In the event the person fails to
successfully complete the program, the court shall proceed to an
adjudication of the alleged offense. A motion for a continuance
under this subsection may not be construed as an admission or be
used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i)
of this section may not also be charged with an offense under this
subsection arising out of the same transaction or occurrence.
(i) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than two days nor more than
twelve months, which jail term is to include actual confinement of
not less than forty-eight hours, and shall be fined not less than
two hundred dollars nor more than one thousand dollars.
(j) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in the county or regional jail for not
less than six months nor more than one year, and the court may, in
its discretion, impose a fine of not less than one thousand dollars
nor more than three thousand dollars.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years, and the court may, in its discretion, impose a fine of not
less than three thousand dollars nor more than five thousand
dollars.
(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e) or (f) of 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) of this
section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time 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) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person
permitted to drive as described under subsection (f) or (g) of this
section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f) or (g) of this section.
(o) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be subject to
suspension or probation: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less 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.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3a. Establishment of and participation in the motor
vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate
a motor vehicle alcohol test and lock program for persons whose
licenses have been revoked pursuant to this article or the
provisions of article five of this chapter, or have been convicted
under section two, article five of this chapter. 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. 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. 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.
(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.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article for
driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than 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 enroll in and
complete the educational program provided for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational program,
any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program under
this subsection may 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), section two, article five of this chapter or pursuant
to subsection (i), section two of this article, the minimum period
of revocation for participation in the test and lock program is
thirty days and the minimum period for the use of the ignition
interlock device is five months;
(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 days and the minimum period for the use of the
ignition interlock device is nine months;
(3) 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) 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) 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) 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), 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 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), section two
of this article or subsection (h), section two, article five of
this chapter is two months and the minimum period of participation
is one year. The division will 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) 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;
such is necessary for employment purposes.
(f) 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) 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) A person whose license has been suspended pursuant to the
provisions of subsection (l), section two of this article who has
completed the educational program, and who has not violated the
terms required by the commissioner of 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) In addition to any other penalty imposed by this code, any person who operates a motor vehicle not equipped with an approved
motor vehicle alcohol test and lock system during such person's
participation in the motor vehicle alcohol test and lock program is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for a period not less than
one month nor more than six months and fined not less than one
hundred dollars nor more than five hundred dollars. Any person who
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 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.