HB 4512 Text

WEST virginia legislature

2020 regular session

Introduced

House Bill 4512

By Delegates Butler, Porterfield, Rowe and Foster

[By Request of the Division of Motor Vehicles]

[Introduced January 23, 2020; Referred to the Committee on Technology and Infrastructure then the Judiciary]

A BILL to amend the West Virginia Code, 1931, as amended, by adding thereto a new article, designated §17B-8-1, §17B-8-2, §17B-8-3, §17B-8-4, §17B-8-5 ,§17B-8-6 and §17B-8-7; and to amend and reenact §17C-5A-3a of said code, all relating to creating a work permit driver’s license program; providing legislative findings and purpose; defining terms; establishing eligibility requirements; providing that drivers whose commercial driver’s license was suspended or revoked are not eligible for the work permit driver’s license program; providing that drivers whose driver’s license was suspended or revoked for passing a school bus, medical reasons, driving under the influence, and any hit and run offense under §17C-4-1 et seq. are not eligible for the work permit driver’s license program; specifying the terms and conditions of participating in the program; providing for a $20, nonrefundable application fee; limiting times and places a participant may drive to those approved by the Commissioner of Motor Vehicles; requiring completion of driver improvement course; providing for cancellation of work permit driver’s license for certain motor vehicle violations and providing exceptions; limiting work permit driver’s license to one year; authorizing fees to be deposited in the Motor Vehicles Fee Fund for administration of the program; authorizing emergency and legislative rules; authorizing penalties of up to six months in jail and a fine of up to $500 for violations of the terms and conditions of the program; allowing drivers convicted of driving under the influence to participated in the Motor Vehicle Test and Lock Program jointly with the work permit driver’s license program; requiring persons convicted of driving under the influence of drugs or controlled substances to submit to drug testing; requiring satisfactory assessment from approved Safety and Treatment Provider; authorizing the Commissioner to reduce revocation periods under certain circumstances;

Be it enacted by the Legislature of West Virginia:

CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 8. WORK PERMIT driver’s license Program.

§17B-8-1. Legislative findings and purpose.

The Legislature finds that suspension and revocation of a person’s driving privilege has a negative impact on that person’s employment opportunities and ability to be a productive citizen. The inability to commute to and from employment, school or occupational training, medical appointments or religious services for West Virginia drivers puts an undue burden on the public and the state. The Legislature also finds that there is a need to protect the public from impaired or unsafe drivers. The creation of the work permit driver’s license program will allow certain drivers the limited ability to drive and support themselves and their families, pay outstanding fines and fees, and learn to be responsible drivers.

§17B-8-2. Definitions.

For the purposes of this article:

“Commissioner” means the Commissioner of the Division of Motor Vehicles, or his or her designee.

“Commercial driver’s license” means a license issued in accordance with the provisions of §17E-1-1 et seq.

“Driving under the influence” means any offense under §17C-5-2 or §17C-5A-2 of this code.

(a) Any person whose commercial driver’s license is suspended, is subject to suspension or is revoked is not eligible for a work permit driver’s license for operation of a commercial vehicle but may apply for a noncommercial work permit driver’s license. Nothing in this section may be construed in contravention to §17E-1-13 (g) of this code or 49 U.S.C. 31311 and 49 C.F.R. 384.226 of federal law.

(b) Any person whose driver’s license is suspended or revoked for driving under the influence is not eligible for a work permit driver’s license under this article but may participate in the Motor Vehicle Alcohol Test and Lock Program pursuant to §17C-5A-3A of this code.

(c) Any person whose driver’s license is suspended or revoked for medical reasons pursuant to §17B-3-6 (a) (5) is not eligible for a work permit driver’s license.

(d) Any person whose driver’s license is suspended or revoked for passing a stopped school bus in violation of §17C-12-7 is not eligible for a work permit driver’s license.

(e) Any person whose driver’s license is suspended or revoked for a violation on §17C-4-1 et seq. is not eligible for a work permit driver’s license.

(f) Any person who is unlicensed at the time of suspension or revocation is eligible for a work permit driver’s license but must complete all steps to obtain a driver’s license and is additionally subject to the limitation in this article for any learner’s permit issued.

(g) Any person whose driver’s license is revoked due to a mandatory revocation pursuant to §17B-3-5 is not eligible for a work permit driver’s license except for a revocation pursuant to §17B-3-5(4).

(h) Any person whose driver’s license is suspended or revoked for failing to maintain required security in effect is eligible for a work permit driver’s license upon proof of current insurance and following the terms and conditions herein, but may choose to reinstate the suspended license any time by paying the penalty fee assessed pursuant to §17D-2A-7(a)(1).

(i) Any person whose driver’s license is revoked for any other reason is eligible for a work permit driver’s license unless such privileges are inconsistent with federal law.

“Participant” means an applicant approved for participation in the work permit driver’s license program.

“Work permit driver’s license” means a work permit driver’s license issued to an eligible driver whose West Virginia driving privilege has been suspended or revoked. The permit authorizes driving a designated noncommercial motor vehicle, under certain conditions, only when necessary for the driver’s employment, school or occupational training, medical appointments or religious services and as authorized by the commissioner.

§17B-8-3. Eligibility.

(c) Any person whose driver’s license is suspended or revoked for medical reasons pursuant to §17B-3-6 (a) (5) is not eligible for a work permit driver’s license.

(d) Any person whose driver’s license is suspended or revoked for passing a stopped school bus in violation of §17C-12-7 is not eligible for a work permit driver’s license.

(e) Any person whose driver’s license is suspended or revoked for a violation on §17C-4-1 et seq. is not eligible for a work permit driver’s license.

(i) Any person whose driver’s license is revoked for any other reason is eligible for a work permit driver’s license unless such privileges are inconsistent with federal law.

§17B-8-4. Terms and Conditions.

(a) Any person desiring a work permit driver’s license shall apply on forms prescribed by the commissioner and submit a $20 nonrefundable application fee.

(b) The applicant shall describe the purposes, times, and places of the desired work permit driver’s license on the application and the commissioner may approve an application consistent with the purposes in this article.

(c) The commissioner may delay imposition of a license suspension of an eligible applicant while an application for a work permit driver’s license is being processed if the pending suspension is one eligible for approval of a work permit under the provisions of this article.

(d) A participant shall complete a driver improvement course developed by the agency or a third-party driver improvement course approved by the commissioner for any suspension or revocation involving a violation or the accumulation of violations of traffic safety regulations.

(e) The work permit driver’s license will be cancelled if the person commits a subsequent offense for which suspension or revocation of a person’s driving privilege is required except that the person may choose to pay a $200 fee to retain the work permit driver’s license for any subsequent suspension or revocation which is eligible for a work permit driver’s license under section 3 of this article.

(f) A work permit driver’s license is valid for up to 1 year. If all suspensions or revocations are resolved prior to the expiration of the work permit driver’s license, the person may obtain a regular driver’s license at that time.

§17B-8-5. Fees.

Fees collected under this article shall be deposited in the Motor Vehicles Fee Fund established by §17A-2-21 of this code and used for the administration of this article.

§17B-8-6. Rulemaking.

The commissioner is authorized to propose emergency and legislative rules in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this article.

§17B-8-7. Penalties.

In addition to any other penalty imposed by this code, any person who operates a motor vehicle in violation of the terms and conditions of his or her work permit driver’s license is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period not less than one month nor more than six months and fined not less than $100 nor more than $500.

CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

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) (1) The Division of Motor Vehicles shall control and regulate a Motor Vehicle Alcohol Test and Lock Program for persons whose licenses have been revoked pursuant to this article or the provisions of §17C-5-1 et seq. of this code or have been convicted under §17C-5-2 of this code, or who are serving a term of a conditional probation pursuant to §17C-5-2b of this code.

(2) The program shall include the establishment of a user’s fee for persons participating in the program which shall be paid in advance and deposited into the Driver’s Rehabilitation Fund: Provided, That on and after July 1, 2007, any unexpended balance remaining in the Driver’s Rehabilitation Fund shall be transferred to the Motor Vehicle Fees Fund created under the provisions of §17A-2-21 of this code and all further fees collected shall be deposited in that fund.

(3) (A) Except where specified otherwise, the use of the term “program” in this section refers to the Motor Vehicle Alcohol Test and Lock Program.

(B) The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation in accordance with the provisions of §29A-1-1 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.

(C) Nothing in this section may be construed to prohibit day report or community corrections programs authorized pursuant to §62-11C-1 et seq., or a home incarceration program authorized pursuant to §62-11B-1 et seq. of this code, from being a provider of motor vehicle alcohol test and lock systems for eligible participants as authorized by this section.

(4) For purposes of this section, a “motor vehicle alcohol test and lock system” means a mechanical or computerized system which, in the opinion of the commissioner, prevents the operation of a motor vehicle when, through the system’s assessment of the blood alcohol content of the person operating or attempting to operate the vehicle, the person is determined to be under the influence of alcohol.

(5) The fee for installation and removal of ignition interlock devices shall be waived for persons determined to be indigent by the Division of Motor Vehicles pursuant to §17C-5A-3 of this code. The commissioner shall establish by legislative rule, proposed pursuant to §29A-3-1 et seq. of this code, procedures to be followed with regard to persons determined by the Division of Motor Vehicles to be indigent. The rule shall include, but is not limited to, promulgation of application forms, establishment of procedures for the review of applications, and the establishment of a mechanism for the payment of installations for eligible offenders.

(6) On or before January 15 of each year, the Commissioner of the Division of Motor Vehicles shall report to the Legislature on:

(A) The total number of offenders participating in the program during the prior year;

(B) The total number of indigent offenders participating in the program during the prior year;

(D) The total cost of the program to the state during the prior year.

(b) (1) Any person whose license is revoked for the first time pursuant to this article or the provisions of §17C-5-1 et seq. of this code is eligible to participate in the program when the person’s minimum revocation period as specified by §17C-5A-3a(c) of this code has expired and the person is enrolled in or has successfully completed the Safety and Treatment Program or presents proof to the commissioner within 60 days of receiving approval to participate by the commissioner that he or she is enrolled in a Safety and Treatment Program: Provided, That anyone whose license is revoked for the first time for driving with a blood alcohol concentration of 0.15 percent or more, by weight, must participate in the program when the person’s minimum revocation period as specified by §17C-5A-3a(c) of this code has expired and the person is enrolled in or has successfully completed the Safety and Treatment Program or presents proof to the commissioner within 60 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 for driving a motor vehicle while under the age of 21 years with an alcohol concentration in his or her blood 0.02 percent or more, by weight, but less than 0.08 percent, by weight, is eligible to participate in the program after 30 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 18, the person is eligible to participate in the program after 30 days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect or after the person’s 18th 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 shall enroll in and complete the educational program provided in §17C-5A-3(d) of this code 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 shall pay all costs of the educational program, any administrative costs, and all costs assessed for any suspension hearing.

(3) Notwithstanding the provisions of this section to the contrary, a person eligible to participate in the program under this subsection may not operate a motor vehicle unless approved to do so by the commissioner.

(c) A person who participates in the program under §17C-5A-3a(b)(1) of this code 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of 0.08 percent, by weight, but less 0.15 percent, by weight, the minimum period of revocation for participation in the test and lock program is 15 days and the minimum period for the use of the ignition interlock device is 125 days;

(2) For a person whose license has been revoked for a first offense for refusing a secondary chemical test, the minimum period of revocation for participation in the test and lock program is 45 days and the minimum period for the use of the ignition interlock device is one year;

(3) For a person whose license has been revoked for a first offense for driving with a blood alcohol concentration of 0.15 percent or more, by weight, the minimum period of revocation for participation in the test and lock program is 45 days and the minimum period for the use of the ignition interlock device is 270 days;

(4) For a person whose license has been revoked for a first offense for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of 0.08 percent or more, by weight, or did drive a motor vehicle while under the age of 21 years with an alcohol concentration in his or her blood of 0.02 percent or more, by weight, but less than 0.08 percent, by weight, and while driving does any act forbidden by law or fails to perform any duty imposed by law, which act or failure proximately causes the death of any person within one year next following the act or failure, and 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, the minimum period of revocation before the person is eligible for participation in the test and lock program is 12 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of 0.08 percent or more, by weight, and while driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes the death of any person within one year next following the act or failure, the minimum period of revocation is six months and the minimum period for the use of the ignition interlock device is two years;

(6) For a person whose license has been revoked for a first offense for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of 0.08 percent or more, by weight, and while driving does any act forbidden by law or fails to perform any duty imposed by law in the driving of the vehicle, which act or failure proximately causes bodily injury to any person other than himself or herself, 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;

(7) For a person whose license has been revoked for a first offense for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of 0.08 percent or more, by weight, and while driving has on or within the motor vehicle one or more other persons who are unemancipated minors who have not reached their 16th birthday, 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 10 months.

(d) Notwithstanding any provision of the code to the contrary, a person shall participate in the program if the person is convicted under §17C-5-2 of this code or the person’s license is revoked under §17C-5A-2 or §17C-5-7 of this code and the person was previously either convicted or his or her license was revoked under any provision cited in this subsection within the past 10 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 for driving while under the age of 21 with a blood alcohol concentration of 0.02 percent, or more, by weight, but less than 0.08 percent, or more, by weight, is two months and the minimum period of participation is one year. The division shall add an additional two months to the minimum period for the use of the ignition interlock device if the offense was committed while a minor was in the vehicle. The division shall add an additional six months to the minimum period for the use of the ignition interlock device if a person other than the driver received injuries. The division shall add an additional two years to the minimum period for the use of the ignition interlock device if a person other than the driver is injured and the injuries result in that person’s death. The division shall add one year to the minimum period for the use of the ignition interlock device for each additional previous conviction or revocation within the past 10 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)(1) If a person applies for and is accepted into the Motor Vehicle Alcohol Test and Lock Program prior to the effective date of the revocation, the commissioner shall defer the revocation period of such person under the provisions of this section. Such deferral shall continue throughout the applicable minimum period for the use of the ignition interlock device plus an additional period equal to the applicable minimum revocation period. If a person successfully completes all terms of the Motor Vehicle Alcohol Test and Lock Program for a period equal to the minimum period for the use of the ignition interlock device pursuant to §17C-5A-3a(c) of this code, plus any applicable minimum revocation period, the commissioner shall waive the revocation period.

(2) The application and acceptance of a person into the Motor Vehicle Alcohol Test and Lock Program pursuant to §17C-5A-3(e)(1) of this code constitutes an automatic waiver of their right to an administrative hearing. The Office of Administrative Hearings may not conduct a hearing on a matter which is the basis for a person actively participating in the Motor Vehicle Alcohol Test and Lock Program.

(f) Notwithstanding any other provision in this code, a person whose license is revoked for driving under the influence of drugs is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program: Provided, That the Any person whose license has been suspended or revoked for a driving under the influence offense and the impairing substance was a drug or controlled substance may participate in the test and lock program and shall submit to periodic drug testing as prescribed by the commissioner as an additional requirement for participation. The cost of drug testing shall be paid by the participant. The participant may not drive nor install the ignition interlock equipment until he or she has received a satisfactory assessment from an approved Safety and Treatment Provider which shall include consideration of drug testing. The Division of Motor Vehicles may reduce any revocation period required and impose a participation period in accordance with the provisions of this section. of a person with a second or subsequent offense for driving under the influence of drugs to a minimum of one year and thereafter issue a restricted license on the conditions that the person is in the treatment and job program prescribed in §61-11-26a of this code, has satisfactorily performed in the treatment component of the program and that the person submits to two years of monthly drug testing. If the person is otherwise required to participate in the Alcohol Test and Lock Program for another offense, he or she may do so while meeting the conditions described in this subsection If the person fails to submit to a drug test or submits to a test that reveals the presence of controlled substances or drugs, then the full revocation period is reinstated, and the person is only credited with revocation time actually served prior to receiving restricted privileges. The Commissioner of the Division of Motor Vehicles is hereby authorized to promulgate emergency rules to implement the provisions of this article.

(g) An applicant for the test and lock program may not have been convicted of any violation of §17B-4-3 of this code for driving while the applicant’s driver’s license was suspended or revoked within the six-month period preceding the date of application for admission to the test and lock program unless such is necessary for employment purposes An applicant who is ineligible for the work permit driver’s license program under §17B-8-3(b) of this code because of a driving under the influence offense may participate in the test and lock program if otherwise eligible to participate in both programs. The length of participation in the test and lock program shall be based on the provisions of this article and the applicant is subject to the terms and conditions of both the test and lock program and the work permit driver’s license program.

(h) 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.

(i) 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. If the commissioner finds that any person participating in the program pursuant to §17C-5-2b of this code must be removed therefrom for violation(s) of the terms and conditions thereof, he or she shall notify the person, the court that imposed the term of participation in the program and the prosecuting attorney in the county wherein the order imposing participation in the program was entered.

(j) A person whose license has been suspended for a first offense of driving while under the age of 21 with a blood alcohol concentration of 0.02 percent, or more, by weight, but less than 0.08 percent, or more, by weight, 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.

(k) 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 that person’s participation in the Motor Vehicle Alcohol Test and Lock Program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for a period not less than one month nor more than six months and fined not less than $100 nor more than $500. 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 jail not more than six months and fined not less than $100 nor more than $1,000: 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 the operation is a condition of his or her employment. For the purpose of this section, “job site” does not include any street or highway open to the use of the public for purposes of vehicular traffic.

NOTE: The purpose of this bill is to provide an opportunity for certain drivers whose driver’s license has been suspended or revoked an opportunity to drive on a very specifically limited work permit driver’s license. This includes persons who have been convicted of DUI for drug offenses. These drivers would have to remain sober, install a test and lock devise, complete a treatment program and submit to periodic drug testing. Other offenses such as unpaid court costs and excessive points on a person’s license are also eligible to apply for a work permit driver’s license.

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

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