Introduced Version
House Bill 2785 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2785
(By Delegates Staggers, L. Phillips, Barill
and Boggs)
(By Request of the Department of Transportation)
[Introduced March 1, 2013; referred to the
Committee on Roads and Transportation then the
Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §17-17B-1, §17-17B-2,
§17-17B-3, §17-17B-4, §17-17B-5, §17-17B-6, §17-17B-7,
§17-17B-8 and §17-17B-9, all relating to DOT-Parkways
Authority Collection Enforcement; creating the "Safe and
Efficient Parkways Act (SEPA);" authorizing the electronic
enforcement of collection of tolls; establishing penalties for
nonpayment and damage to facilities; keeping certain
information collected confidential and not subject to the
Freedom of Information Act; allowing limited restricted and
confidential access to certain information pursuant to
subpoenas and court orders on a strictly confidential basis;
granting rule-making authority; and defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17-17B-1, §17-17B-2,
§17-17B-3, §17-17B-4, §17-17B-5, §17-17B-6, §17-17B-7, §17-17B-8
and §17-17B-9, all to read as follows:
ARTICLE 17B. ELECTRONIC TOLL COLLECTION.
§17-17B-1. Legislative findings and purpose; Short title;
Definitions.
_____(a) The Legislature finds and declares that the use of
electronic and video technology for Parkways projects will benefit
the citizens of the state by making Parkways projects in the state
safer and more efficient, by easing traffic congestion, by
improving traffic flow, by furthering economic development and by
promoting and enhancing more efficient commercial traffic and the
shipment of goods in the state. This article shall be known as and
may be cited as the "Safe and Efficient Parkways Act."
_____(b) The following words and phrases have the following
meanings when used in this article:
_____(1) "Authority" or "Parkways Authority" means the West
Virginia Parkways Authority established by article sixteen-a of
this chapter.
_____(2) "Division" means the Division of Highways, except where
another division is clearly identified.
_____(3) "Owner" means any person, corporation, firm, partnership,
agency, association, organization or lessor who:
_____(A) Is the beneficial or equitable owner of the vehicle;
_____(B) Holds title to the vehicle;
_____(C) Is the registrant or coregistrant of the vehicle
registered with the Division of Motor Vehicles or a comparable
agency of another jurisdiction or uses the vehicle in its vehicle
renting or leasing business; or
_____(D) Is a person entitled to the use and possession of a
vehicle subject to a security interest held by another person.
_____(4) "Electronic toll collection" means a system of collecting
tolls or charges that has or includes the capability of charging an
account holder, owner or operator of a vehicle for the prescribed
toll:
_____(A) By electronic transmission of information between a device
on a vehicle and a device located in a toll lane or otherwise used
at a toll collection facility; or
_____(B) By means of a video collection system.
_____(5) "Parkway project" has the meaning set forth in section
five, article sixteen-a, chapter seventeen of this code, and
specifically includes a highway project designated under sections
five-a and five-b of article seventeen-a, chapter seventeen of this
code.
_____(6) "Toll collection facility" means any facility, including
all related structures, equipment, systems and software, used in
connection with collecting or charging tolls for a parkway project,
regardless of whether the facility is located on, over or adjacent to the highway included in the parkway project and regardless of
whether the facility has toll lanes with toll booths and toll
collection equipment that require passing vehicles to stop or slow
down in order to pay a toll or uses additional or different
methods, structures, technology and equipment in order to charge or
collect tolls from some vehicles passing under or by the facility
at highway speeds.
_____(7) "Video collection system" means a vehicle sensor, placed
in a location to work in conjunction with a toll collection
facility, that automatically produces a videotape or photograph,
microphotograph or other recorded image of the front or rear
portion, or both front and rear portion, of each vehicle at the
time the vehicle is used or operated on the toll facility in order
to charge or collect tolls or detect violations of this article.
This phrase includes, without limitation: (i) Any other technology
which identifies a vehicle by photographic, electronic or other
method; and (ii) all related toll invoices, billing notices and
other toll collection and violation enforcement efforts made using
any such technology and information.
§17-17B-2. Electronic toll collection authorized.
_____Notwithstanding the provisions of article sixteen-a and
section five-b, article seventeen-a of this chapter and section
seven-a, article six, chapter seventeen-c of this code to the
contrary, the collection of tolls and the enforcement of toll violations may be enforced by electronic toll collection as
provided in this article and in rules promulgated by authority of
this article. In connection with any toll road in this state
authorized by section five-b, article seventeen-a of this chapter,
and in addition to any powers granted to the Commissioner of
Highways in this code, the commissioner, on behalf of the division,
may enter into cooperative agreements and arrangements with any
agency or other entity that handles or assists in the collection or
enforcement of tolls on the adjacent state's connecting toll
highway, whereby that agency or entity would assist the division in
the collection of tolls for the toll roads in this state or
enforcement of toll violations for the toll roads in this state or
both collection of tolls and enforcement of toll violations
utilizing electronic toll collection.
§17-17B-3. Liability of owner.
_____(a) All owners and operators of motor vehicles must pay the
posted toll when on any toll road, highway or bridge authorized by
article sixteen-a and section five-b, article seventeen-a of this
chapter, either by paying the toll at a toll collection facility on
the toll road, highway or bridge at the time of travel thereon or
by paying the toll within the time prescribed for toll payment in
a toll billing notice or invoice generated by an electronic toll
collection system. These tolls may be collected by electronic toll
collection. If an owner or operator of a vehicle fails to pay the prescribed toll when due, the owner of the vehicle is in violation
of this article.
_____(b) If a violation occurs, the registration plate number of
the vehicle as recorded by a video collection system establishes an
inference for civil enforcement purposes that the owner of the
vehicle was operating the vehicle at that time. The inference may
be overcome if the owner:
_____(1) States that he or she was not operating the vehicle at the
time of the violation;
_____(2) Identifies who was operating the vehicle; and
_____(3) Supplies the name and address, if known, of the operator
of the vehicle.
_____(c) If an action or proceeding is commenced in a county other
than that of the residence of the owner, a sworn statement that
contains the information set forth in subsection (b) of this
section is sufficient to overcome the inference.
_____(d) If the inference is overcome, the identified operator of
the vehicle may be found to have violated this article.
_____(e) Nothing in this section prohibits: (i) A law-enforcement
officer from issuing a citation to a person in control of a vehicle
for a violation of this article or other provisions of law at the
time of the violation; or (ii) the division or the Parkways
Authority from issuing reminder notices or making other
communications directly or indirectly in connection with toll collection efforts or efforts to enforce violations of this
article, and the division and authority are authorized to use
secondary sources of information and services including, but not
limited to, services such as the National Change of Address Service
or skip tracing services.
§17-17B-4. Imposition of liability.
_____If, as evidenced by a video collection system, a violation of
this article occurs the following applies:
_____(1) The Division or the Parkways Authority, as applicable,
will prepare and mail a notice of violation as follows:
_____(A) The notice of violation shall be sent by first class mail
to each person listed as owner;
_____(B) The notice shall be mailed to the address shown on the
vehicle registration or at the address of the operator, as
applicable.
_____(C) Notice shall be mailed no later than one hundred twenty
days after:
_____(i) The violation;
_____(ii) The date the inference is overcome by the owner pursuant
to subsection (b), section three of this article; or
_____(iii) The date that a lessor provides sufficient information
to identify who is the actual owner.
_____(D) Personal service is not required.
_____(E) The notice shall contain the following:
_____(i) Information advising the person of the violation, when and
where it occurred and that the violation may be contested.
_____(ii) A warning advising the person receiving the notice:
_____(I) That failure to contest in the manner and time provided is
an admission of liability;
_____(II) That a default judgment may be entered on the notice;
_____(III) That a violation of this article may subject the owner
or operator to civil penalties, administrative fees, administrative
hearing costs, and collection fees and costs as provided in this
article; and
_____(IV) That failure to pay civil penalties imposed pursuant to
this article shall result in denial of an application for a new or
renewal of vehicle registration in this state.
_____(F) A manual or automatic record of mailing prepared in the
ordinary course of business is prima facie evidence of the mailing
of notice.
_____(2) If an owner of a vehicle receives a notice of violation of
this article for any time period during which the vehicle was
reported to a police department as having been stolen, that owner
may not be liable if he or she provides a certified copy of the
police report on the stolen vehicle to the division or the Parkways
Authority within thirty days after receiving the notice of
violation.
_____(3) If an owner of a vehicle receives a notice of violation of this article for any time period during which the vehicle was being
leased or rented, that owner may not be liable if he or she
provides a copy of the rental, lease or other contract document
that contains the name and address of the lessee to the division or
the Parkways Authority within thirty days after receiving the
notice of violation.
_____(4) A certified report or a facsimile report of an authorized
agent or employee of the Division or the Parkways Authority
reporting a violation of section three of this article based upon
the recorded information obtained from a video collection system is
prima facie evidence of the facts contained in the report and is
admissible as an official record kept in the ordinary course of
business.
_____(5) Notwithstanding any provision in the code to the contrary,
videotapes, photographs, microphotographs or other recorded images,
written records, reports or facsimiles prepared pursuant to this
article are allowed and are for the exclusive use of the division
or the Parkways Authority, as applicable, its authorized agents,
its employees and law-enforcement officials for the purpose of
discharging duties under this article. Except as may be necessary
to enforce collection of tolls, civil penalties administrative
fees, administrative hearing costs and collection fees and costs
from persons to whom a notice of violation is sent as provided in
this section, or to whom any billing invoice, reminder letter or other toll collection or violation enforcement communication is
sent using electronic toll collections, all images and records
created or retained as provided herein that identify individual
vehicles or vehicle registration plates must be destroyed within
sixty days after payment in full of the applicable toll. The images
and records must be destroyed within sixty days after any toll
collection or enforcement action under this article involving the
images or records has been resolved. This information may not be
considered a public record under chapter twenty-nine-b of this
code. The information is not discoverable by court order and it
may not be offered in evidence in any action or proceeding that is
not directly related to a violation of this article or
indemnification permitted by this article. However, these
restrictions:
_____(A) Do not preclude a court of competent jurisdiction from
issuing an order directing that the information be provided to law-
enforcement officials if the information is reasonably described
and is requested in connection with a criminal law-enforcement
action;
_____(B) Do not preclude the exchange of the information between
any entities with jurisdiction over or that operate an electronic
toll collection system in this state or any other jurisdiction
within or outside of the United States; and
_____(C) Do not prohibit the use of information exclusively for the purpose of billing electronic toll collection account holders,
deducting toll charges from the account of an account holder,
enforcing toll collection provisions of this code or enforcing the
provisions of an account holder agreement.
_____(6) Civil liability under this article is to be based upon a
preponderance of evidence. Persons receiving a notice of violation
as provided in this section must respond within thirty days of the
date the notice was mailed by:
_____(A) Remitting the amount of the unpaid toll and any
administrative fee assessed; or,
_____(B) Requesting an administrative hearing in accordance with
rules promulgated by authority of this article. In addition to any
unpaid tolls and an administrative fee not to exceed $35 per
notification for each separate violation, persons who are found to
be liable in an administrative hearing are liable for the costs of
the hearing, except where the judgment of the hearing examiner is
reversed or set aside by a court of competent jurisdiction.
_____Failure to remit the unpaid toll, assessed administrative fees
and assessed hearing costs or to request a hearing will result in
entry of an administrative default judgment. The division or the
authority, as may be the case, may cause notice of the default
judgment to be served on the person to whom the notice of violation
was sent by certified mail, return receipt requested, advising the
person that failure to pay the unpaid tolls, assessed administrative fees and assessed hearing costs within thirty days
of receipt of the notice of default judgment will result in denial
of an application for a new vehicle registration in this state. If
the unpaid tolls, assessed administrative fees, and assessed
administrative hearing costs are not paid as provided in the notice
of default judgment, or if the judgment is not set aside by a court
of competent jurisdiction, the division or the authority may take
all lawful actions to collect on the judgment and may notify the
Commissioner of the Division of Motor Vehicles, who shall refuse
the registration or renewal of registration of the vehicle in this
state as provided in section eight of this article.
_____(7) Civil liability under this article is not a conviction and
may not be made part of the owner's motor vehicle operating record.
It may not be considered in the provision of motor vehicle
insurance coverage.
_____(8) A person found to have violated this article is liable
for:
_____(A) The amount of the toll evaded or attempted to be evaded;
if the amount can be determined or, if it cannot be determined, the
minimum toll from the nearest point of entry on the toll facility
to the actual point of exit;
_____(B) An administrative fee not to exceed $35 per notification
for each separate violation;
_____(C) Administrative hearing costs assessed under this article; and
_____(D) Reasonable fees and costs of attempting to collect on a
judgment under subsection (6) of section four of this article.
§17-17B-5. Placement of electronic toll collection device.
_____An electronic toll collection device that is properly affixed
to the front windshield of a vehicle in accordance with division or
authority rules or is mounted elsewhere on a vehicle in accordance
with mounting instructions included with the device, or is
otherwise used in a manner that makes it operate as intended, is
not a violation of section thirty-six, article fifteen, chapter
seventeen-c of this code.
§17-17B-6. Privacy of electronic toll collection account holder
__information; subpoenas and court orders and related
__confidentiality protections.
_____(a) Except as provided in subsection (b) of this section, and
notwithstanding any provision in the code to the contrary,
videotapes, photographs, microphotographs, other recorded images,
written records, reports or facsimiles prepared pursuant to this
article are for the exclusive use of the division or the Parkways
Authority, as applicable, its authorized agents, its employees and
law-enforcement officials for the purpose of discharging duties
under this article. This information includes names, addresses,
account numbers, account balances, personal financial information, vehicle movement records and other information compiled from
transactions with the account holders. The information may not be
considered a public record under chapter twenty-nine-b of this
code.
_____(b) Notwithstanding subsection (a) of this section,
videotapes, photographs, microphotographs, other recorded images,
written records, reports or facsimiles prepared and retained
pursuant to this article may be discoverable pursuant to a properly
issued subpoena or by an order of a court of competent jurisdiction
directing that the information be produced in a civil or criminal
action or proceeding: Provided, That any such information required
to be produced in response to a properly issued subpoena or court
order shall at all times be confidential and may not be disclosed
by the division or the Parkways Authority other than in connection
with, and only for the purposes of, the underlying action and
subject to compliance with the provisions of subsection (c), (d)
and (e) of this section.
_____(c) All information disclosed or produced by subsection (b) of
this section shall be clearly marked "CONFIDENTIAL." Any document
or other material which is marked "CONFIDENTIAL" or the contents
thereof, may only be used by a party to the underlying action or
proceeding or a party's attorney, expert witness, consultant or
other person who is actively engaged in working on the action, and
only for the purpose of the underlying action or proceeding and not for any other purpose. Prior to a party disclosing any document or
other material marked as "CONFIDENTIAL," or the contents thereof,
to an attorney, expert witness, consultant or other person actively
engaged in working on such action or proceeding, the party making
disclosure must first inform the person that he or she is bound by
the duty of confidentiality established under this section and the
person to whom disclosure is to be made shall sign an
acknowledgment that the information is and shall remain at all
times confidential and that the person agrees to abide by the duty
of confidentiality established under this section.
_____(d) Prior to the production of any information under this
section with any court of competent jurisdiction, the division or
the Parkways Authority shall file a motion with the court seeking
to have the documents sealed and withheld from the public record
throughout the action or proceeding.
_____(e) At the conclusion of the action or proceeding, all
documents and other material marked as "CONFIDENTIAL" and any
copies thereof, and all related notes and memoranda, shall promptly
be returned to the division or the Parkways Authority, as
applicable, and in any event, within thirty days following the
conclusion of the action or proceeding.
§17-17B-7. Evading tolls; damaging, interfering with or
obstructing video toll collection or
infrastructure; violations and penalties.
_____(a) Any person who knowingly or intentionally evades or seeks
to evade the payment of tolls, rents, fees or charges established
by the division or the Parkways Authority for the use of any toll
facility under the jurisdiction of those agencies is guilty of a
misdemeanor and, upon conviction, shall be fined not more than $50.
_____(b) Any person who deliberately damages, defaces or obstructs
a video collection system infrastructure or power supply with the
intent to interfere with or alter or prevent the functioning of the
system or electronic toll collection, or who obstructs a license
plate or causes it to be unreadable by the video collection system,
or who causes a transponder or other device used in an electronic
toll system to be inoperable or unreadable thereby causing no toll
to be charged, is guilty of a misdemeanor and, in addition to any
other penalties provided by the code, and upon conviction, shall be
fined not more than $500 and, if applicable, is additionally liable
to the division or the Parkways Authority for all costs to repair
the damaged, defaced or obstructed property.
§17-17B-8. Nonrenewal of vehicle registration; effect of civil or
criminal violation.
_____Upon receipt of a notice from the division or the authority
that a vehicle owner or operator failed to pay tolls and costs in
accordance with a notice of default judgment, the Commissioner of
the Division of Motor Vehicles shall refuse to register, or renew
the registration of any vehicle of which the person committing the violation is a registered owner or coowner until such time as the
Commissioner of the Division of Motor Vehicles receives notice from
the division or authority that all fees, penalties and costs
imposed on that person pursuant to this article have been paid or
satisfied.
§17-17B-9. Rule-making authority.
_____The Commissioner of the Division of Motor Vehicles, the
Commissioner of Highways on behalf of the division and the Parkways
Authority shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of the code to implement this article.
_____NOTE:
The purpose of this bill is to authorize electronic
collection and enforcement of tolls. It establishes penalties for
nonpayment and damage to facilities. It keeps certain information
collected confidential and not subject to the Freedom of
Information Act. The bill allows certain limited restricted and
confidential access to certain information pursuant to subpoenas
and court orders on a strictly confidential basis. The bill also
grants rule-making authority and defines terms.
This article is new; therefore, it has been completely
underscored.