COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 749
(By Senators Kessler and Chafin)
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[Originating in the Committee on the Judiciary;
reported March 30, 2009.]
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A BILL to amend and reenact §17C-5-7 of the Code of West Virginia,
1931, as amended; and to amend and reenact §17C-5A-1a, §17C-
5A-2 and §17C-5A-2a of said code, all relating generally to
means of reviewing driver's license revocation orders for
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs.
Be it enacted by the Legislature of West Virginia:
That §17C-5-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §17C-5A-1a, §17C-5A-2 and §17C-
5A-2a of said code, be amended and reenacted, all to read as
follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§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privilege; consent not withdrawn if person arrested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 the refusal, the
person is given 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 the refusal is considered final.
The arresting officer after that period of time expires has no
further duty to provide the person with an opportunity to take the
secondary test. The officer shall, within forty-eight hours of 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 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 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 in the manner provided
in section four of this article; and (4) 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 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 constitutes an oath
or affirmation by the person signing the statement that the
statements contained 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.
Upon receiving the statement the commissioner shall make and enter
an order revoking 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 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 of this chapter:
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 of said article. If the
commissioner
person's driver's license has previously
been 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 the person's license to operate a motor vehicle in this state for a period of
ten years:
Provided, however, 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 person's
driver's license has previously
been 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 the
person's license to operate a motor vehicle in this state for a
period of life. A copy of each order shall be forwarded to 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. A
revocation shall not become effective until ten days after receipt
of the copy of the order. Any person who is unconscious or who is
otherwise in a condition rendering him or her incapable of refusal
shall be 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 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 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 June 10, 1983; 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 June
10, 1983.
(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.
(a)(d) If a person is convicted for an offense defined 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 because the person did drive
a motor vehicle while under the influence of alcohol, controlled substances or drugs, or the 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 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, and if the person does not act to appeal the conviction
within the time periods described in subsection (b) of this
section, the person's license to operate a motor vehicle in this
state shall be revoked or suspended in accordance with the
provisions of this section.
(b)(e) The clerk of the court in which a person is convicted
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
forward to the commissioner a transcript of the judgment of
conviction. If the conviction is the judgment of a magistrate
court, the magistrate court clerk shall forward the transcript when
the person convicted has not requested an appeal within twenty days
of the sentencing for such conviction. If the conviction is the
judgment of a mayor or police court judge or municipal court judge,
the clerk or recorder shall forward the transcript when the person
convicted has not perfected an appeal within ten days from and
after the date upon which the sentence is imposed. If the
conviction is the judgment of a circuit court, the circuit clerk shall forward the transcript when the person convicted has not
filed a notice of intent to file a petition for appeal or writ of
error within thirty days after the judgment was entered.
(c)(f) If, upon examination of the transcript of the judgment
of conviction, the commissioner shall determine that the person was
convicted 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
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the
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, the commissioner shall make and enter an order revoking the
person's license to operate a motor vehicle in this state. If the
commissioner determines that the person was convicted 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 and enter an order
suspending the person's license to operate a motor vehicle in this
state. The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods provided for in
section two of this article.
Further, the order shall give the
procedures for requesting a hearing which is to be held in
accordance with the provisions of said section. The person shall be advised in the order that because of the receipt of a transcript of
the judgment of conviction by the commissioner a presumption exists
that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment
of conviction. A copy of the order shall be forwarded to the person
by registered or certified mail, return receipt requested. No
revocation or suspension shall become effective until ten days
after receipt of a copy of the order.
(d)(g) The provisions of this section shall not apply if an
order reinstating the operator's license of the person has been
entered by the commissioner prior to the receipt of the transcript
of the judgment of conviction.
(h) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or
drugs.
(a) If a person is convicted for an offense defined 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 because the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or the 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 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,
and if the person does not act to appeal the conviction within the
time periods described in subsection (b) of this section, the
person's license to operate a motor vehicle in this state shall be
revoked or suspended in accordance with the provisions of this
section.
(b) The clerk of the court in which a person is convicted 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 forward
to the commissioner a transcript of the judgment of conviction. If
the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward the transcript when the person
convicted has not requested an appeal within twenty days of the
sentencing for such conviction. If the conviction is the judgment of a mayor or police court judge or municipal court judge, the
clerk or recorder shall forward the transcript when the person
convicted has not perfected an appeal within ten days from and
after the date upon which the sentence is imposed. If the
conviction is the judgment of a circuit court, the circuit clerk
shall forward the transcript when the person convicted has not
filed a notice of intent to file a petition for appeal or writ of
error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted 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
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the
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, the commissioner shall make and enter an order revoking the
person's license to operate a motor vehicle in this state. If the
commissioner determines that the person was convicted 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 and enter an order
suspending the person's license to operate a motor vehicle in this state. The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods provided for in
section two of this article.
Further, the order shall give the
procedures for requesting a hearing which is to be held in
accordance with the provisions of said section. The person shall
be advised in the order that because of the receipt of a transcript
of the judgment of conviction by the commissioner a presumption
exists that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment
of conviction. A copy of the order shall be forwarded to the
person by registered or certified mail, return receipt requested.
No revocation or suspension shall become effective until ten days
after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order
reinstating the operator's license of the person has been entered
by the commissioner prior to the receipt of the transcript of the
judgment of conviction.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
§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 pending the outcome of the hearing provided for in this
section. The written request must be filed with the commissioner
and with the clerk of the court having jurisdiction over the
offense with which the person has been charged in person or by
registered or certified mail, return receipt requested, within
thirty ten 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 in which the arrest was made in this
state or at some other suitable place in the county in which the
arrest was made if an office of the division is not available.
(c) Any hearing shall be held within one hundred eighty days
after the date upon which the commissioner received the timely
written request 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 hearing on the commissioner's
own motion or for the benefit of any law-enforcement officer or any
person requesting the hearing and the policies shall be enforced
and applied to all parties equally. For the purpose of conducting
the hearing, the commissioner 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,
constitutes a subpoena to appear at the hearing without the
necessity of payment of fees by the Division of Motor Vehicles
shall be conducted before the court having jurisdiction over the
offense with which the person is charged and shall be held during
the same proceeding at which the case on the underlying offense is
tried: Provided, That in all cases involving hearings provided
under this section, the court shall make all findings of findings of fact and conclusions of law required under this section
regarding the suspension or revocation of the person's license to
operate a motor vehicle in this state regardless of whether that
person requests a jury trial with respect to any criminal charges
tried at the same proceeding.
(b) The prosecuting attorney shall represent the commissioner
for purposes of any hearing provided for in this section. If the
person is represented by an attorney provided through the West
Virginia Public Defender Corporation with regard to the underlying
charge or charges under section two, article five of this chapter,
or section seven, article five of this chapter, that attorney shall
also represent the person with regard to the administrative
sanctions attendant thereto revocation or suspension of the
person's licence to operate a motor vehicle in this state under
section two, article five-a of this chapter or section seven,
article five of this chapter at any hearing held under the
provisions of this section.
(d)(c) 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 that 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
for the
purposes of any hearing provided for by this section. Nothing in
this subsection shall effect the duties of the officer to attend
hearings before the court having jurisdiction over the underlying
charges under section two, article five of this chapter or section
seven, article five of this chapter for the purposes of
adjudicating those charges. under article five, chapter seventeen-c
of this code. 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 court 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.
(e)(d) Where a person has requested a hearing pursuant to this
section concerning the suspension or revocation of his or her
license the principal question
of fact to be determined by the
court at the hearing shall be whether
the commissioner has proven
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, 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 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 court
in writing of 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 the evidence
Any rule shall provide that the rule
shall not be invoked except in the case of a person who is not
represented by counsel unless the communication from the
commissioner court 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 court 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) In the case of
a hearing in which a person
who 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 where that person
has requested a hearing pursuant to this section concerning the
administrative suspension or revocation of his or her license, in
addition to whatever the findings the trier of fact court shall
make concerning any and all pending criminal charges that must be
proved beyond a reasonable doubt, the court shall also make
specific findings
of fact and conclusions of law as to
whether the commissioner has proven by a preponderance of the evidence that:
(1)
Whether The 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 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) 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 court also finds by a preponderance of the
evidence that the person when 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
court 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 person's
license
has previously been suspended or revoked 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) 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 court also finds
by a preponderance of the evidence that the person when 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
has previously been suspended or
revoked 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) 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 court also finds
by a preponderance of the evidence that the person when 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
has previously been suspended or revoked 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
has previously been suspended or revoked 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) If the
commissioner court 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 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 twenty days of participation in
the Motor Vehicle Alcohol Test and Lock Program in accordance with
the provisions of section three-a of this article:
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, however, That if
the commissioner has previously suspended or revoked the person's
license
has previously been suspended or revoked 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 further, That if
the
commissioner has previously suspended or revoked the person's
license
has previously been suspended or revoked 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) (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 court 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 seventy days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of
articles three-a and five-a, chapter seventeen-c of this code:
Provided, That if
the commissioner has previously suspended or
revoked the person's license
has previously been suspended or
revoked 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
has previously been suspended or
revoked 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 he or she does 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
has previously
been suspended or revoked 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
has previously been
suspended or revoked 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) 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 court also finds by a
preponderance of the evidence that the person when 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 court 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
has previously been
suspended or revoked 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) 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 court also finds by a
preponderance of the evidence that the person when 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 court
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
has previously been suspended or revoked 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
has previously been suspended or revoked 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.
(m) If the
commissioner court 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
has previously been suspended or
revoked 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.
(n) 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 court also finds
by a preponderance of the evidence that the person when 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
has previously been suspended or revoked 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
has previously been suspended or revoked 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.
(o) 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.
(p)In the case of
a hearing in which a person
who is accused
of refusing to submit to a designated secondary test,
where that
person has requested a hearing pursuant to this section concerning
the suspension or revocation of his or her license, in addition to
whatever the findings the trier of fact shall make concerning any
and all pending criminal charges that must be proven beyond a
reasonable doubt, the court shall also the commissioner shall make
specific findings
of fact and conclusions of law as to
whether the commissioner has proven by a preponderance of the evidence that:
(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 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 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.
(q) If the
commissioner court finds by a preponderance of the
evidence that: (1) The 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 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 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.
(r) If the
commissioner court 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 court 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 hearing, the
revocation of the person's license to operate a motor vehicle in
this state shall be stayed.
In cases before a magistrate court, mayor, police or municipal
court, if
the commissioner that court 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 before the appropriate
circuit court. In cases before a circuit court, the person shall
be entitled to file a petition for review before the West Virginia
Supreme Court of Appeals. The commissioner The court that issued
the order affirming the commissioner's earlier order of revocation
may not stay enforcement of the order.
In cases of appeals to the circuit court, the
circuit 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.
(s) 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.
(t) 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 the funds to the Commission on Drunk Driving
Prevention.
§17C-5A-2a. Assessment of costs; special account created.
The Division of Motor Vehicles Any court conducting
administrative hearings under this article or section seven, article five of this chapter is hereby authorized and required to
assess witness costs at the same rate as witness fees in circuit
court and a docket fee of $10 for each hearing request against any
person filing a request for a hearing under section two of this
article who fails to appear, fails to have said order rescinded or
fails to have said order modified to a lesser period of revocation.
All fees and costs collected hereunder shall be paid into a
special revenue account in the State Treasury:
Provided, That on
and after July 1, 2007, any unexpended balance remaining in the
special revolving 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
and costs collected shall be deposited in that fund. A portion of
the funds in the Motor Vehicle Fees Fund may be used to pay or
reimburse the various law-enforcement agencies at the same rate as
witnesses in circuit court for the travel and appearance of its
officers
before the commissioner at any administrative hearing or
authorized deputy or agent pursuant to a hearing request under the
provisions of this article. The department shall authorize payment
to the law-enforcement agencies from said account as the fees for
a particular hearing request are received from the person against
whom the costs were assessed. The department shall authorize
transfer to an appropriate agency account from the Motor Vehicle
Fees Fund to pay costs of registered and certified mailings and
other expenses associated with the conduct of hearings under this
article as the docket fee for a particular hearing request is received from the person against whom the costs were assessed.
In the event judicial review results in said order being
rescinded or modified to a lesser period of revocation the costs
assessed shall be discharged.