WEST virginia legislature

2019 SECOND EXTRaORDINARY session

Enrolled

Senate Bill 2002

By Senators Carmichael (Mr. President) and Prezioso

(By Request of the Executive)

[Passed November 18, 2019; in effect from passage]

AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61‑11‑26b; and to amend and reenact §62‑16‑5 and §62‑16‑6 of said code, all relating generally to certain convictions or charges for motor vehicle traffic control offenses and records thereof; providing that courts are without jurisdiction to expunge convictions for motor vehicle traffic control offenses for any person who held a commercial driver’s license or permit or was operating a commercial motor vehicle at the time of the offense; providing that a court or other tribunal may not enter an order or take any action that will prevent a motor vehicle traffic control offense from appearing on an offender’s commercial driving record; clarifying that courts are without jurisdiction to expunge convictions for offenses involving driving under the influence of alcohol or drugs; providing that a court or other tribunal may not enter an order or take any action with regard to a motor vehicle traffic control offense in violation of applicable federal laws and regulations; providing that a person charged with any crime involving driving under the influence of alcohol or drugs is not eligible to participate in a military service member court program, except where the offender is eligible to participate in the Motor Vehicle Test and Lock Program; clarifying that military service member courts may not enter an order or take any action that will prevent a motor vehicle traffic control offense from appearing on an offender’s commercial driving record; limiting the authority of military service member courts to expunge certain motor vehicle traffic offenses; and clarifying that a military service member court may not enter an order or take any action with regard to a motor vehicle traffic control offense in violation of applicable federal laws and regulations.

Be it enacted by the Legislature of West Virginia:

CHAPTER 61.  CRIMES AND THEIR PUNISHMENT.

ARTICLE 11. General Provisions Concerning Crimes.

§61-11-26b. Limitation on expungement for certain motor vehicle traffic control offenses.

(a) Notwithstanding the provisions of §61‑11‑26, §61‑11‑26a, and §62-16-1 et seq. of this code, no court or other tribunal has the authority to:

(1) Order the expungement of a conviction for a motor vehicle traffic control violation for a person who held a commercial driver’s license or permit or who was operating a commercial motor vehicle at the time of the offense;

(2) Enter an order or take any action to mask a charge or conviction, divert a charge, or modify the records of a charge or conviction in a manner that would prevent an offense from appearing on an offender’s commercial driving record; or

(3) Order the expungement of any conviction for driving under the influence of alcohol or controlled substances, as provided in §61-11-26 of this code.

(b) Notwithstanding any other provision of this code, no court or other tribunal may enter an order or take any other action related to a motor vehicle traffic control offense that violates any applicable federal law or regulation, including, but not limited to:

(1) The requirements or conditions contained in 23 U.S.C. §164 et seq. and 23 C.F.R. §1275 et seq.; and

(2) The requirements or conditions contained in 49 U.S.C. §31311 and 49 C.F.R. §384 et seq.

CHAPTER 62.  CRIMINAL PROCEDURE.

ARTICLE 16. THE MILITARY SERVICE MEMBERS COURT ACT.

§62-16-5. Eligibility; written agreement.

(a) Eligibility. — A military service member offender, who is eligible for probation based upon the nature of the offense for which he or she has been charged, and in consideration of his or her criminal background, if any, may, upon application, be admitted into a court program only upon the agreement of the prosecutor and the offender. Additionally, the court must also determine whether the offense is in any way attributable to the offender’s military service.

(b) A military service member offender may not participate in the court program if he or she has been charged with any of the following offenses:

(1) A sexual offense, including, but not limited to, a violation of the felony provisions of §61-8-1 et seq., §61-8B-1 et seq., §61-8C-1 et seq., or §61-8D-1 et seq. of this code, or a criminal offense where the judge has made a written finding that the offense was sexually motivated;

(2) A felony violation of the provisions of §61-8D-2, §61-8D-2a, or §61-8D-3a of this code;

(3) A felony violation of the provisions of §61-14-3 or §61-14-4 of this code;

(4) A felony violation of §61-2-9b or §61-2-14 of this code;

(5) A felony violation of §61-2-28 of this code;

(6) If he or she has previously been convicted in this state, another state, or in a federal court for any of the offenses enumerated above; or

(7) A violation of §17C-5-2 of this code, except where the military service member is eligible to participate in the Motor Vehicle Test and Lock Program under §17C-5A-1 et seq. of this code.

(c) Written agreement. — Participation in a Military Service Members Court program, with the consent of both the prosecutor and the court, shall be pursuant to a written agreement. This written agreement shall set forth all of the agreed upon provisions to allow the military service member offender to proceed in the court. The offender shall execute a written agreement with the court as to his or her participation in the program and shall agree to all of the terms and conditions of the program, including, but not limited to, the possibility of sanctions or incarceration for failing to comply with the terms of the program.

(d) Upon successful completion of a court program, the judge shall dispose of an offender’s case in the manner prescribed by the written agreement and by the applicable policies and procedures adopted by the court. Disposition may include, but is not limited to, withholding criminal charges, dismissal of charges, probation, deferred sentencing, suspended sentencing, split sentencing, or a reduced period of incarceration: Provided, That a military service member court may not enter an order or take any action to mask a charge or conviction, divert a charge, or modify the records of a charge or conviction in a manner that would prevent an offense from appearing on an offender’s commercial driving record.

§62-16-6. Procedure; mental health and substance abuse treatment; violation; termination.

(a) Procedure. — Upon application, the court shall order the offender to submit to an eligibility screening, a mental health and drug/alcohol screening, and an assessment by the Department of Veterans Affairs (VA) Veterans Justice Outreach to provide information on the offender’s mental health or military service member status. The assessment shall include a risks assessment and be based, in part, upon the known availability of treatment resources available to the court. The assessment shall also include recommendations for treatment of the conditions which are indicating a need for treatment under the monitoring of the court and reflect a level of risk assessed for the individual seeking admission. The court is not required to order an assessment if a valid screening or assessment related to the present charge(s) pending against the offender has been completed within the previous 60 days.

(b) The court may order the offender to complete substance abuse treatment in an outpatient, inpatient, residential, or jail-based custodial treatment program, order the offender to complete mental health counseling in an inpatient or outpatient basis, comply with all physician recommendations regarding medications, and complete all follow-up treatment. The mental health issues for which treatment may be provided include, but are not limited to, post-traumatic stress disorder, traumatic brain injury, and depression.

(c) Mental health and substance abuse treatment. — The court may maintain a network of mental health treatment programs and substance abuse treatment programs representing a continuum of graduated mental health and substance abuse treatment options commensurate with the needs of offenders; these shall include programs with the VA, the department, this state, and community-based programs.

(d) Violation. — The court may impose reasonable sanctions under the offender’s written agreement, including, but not limited to, imprisonment or dismissal of the offender from the program. The court may reinstate criminal proceedings against him or her for a violation of probation, conditional discharge, or supervision hearing, if the court finds from the evidence presented, including, but not limited to, the reports or proffers of proof from the court’s professionals that:

(1) The offender is not performing satisfactorily in the assigned program;

(2) The offender is not benefitting from educational treatment or rehabilitation;

(3) The offender has engaged in criminal conduct rendering him or her unsuitable for the program; or

(4) The offender has otherwise violated the terms and conditions of the program or his or her sentence or is for any reason unable to participate.

(e) Termination. — Upon successful completion of the terms and conditions of the program, the court may dismiss the original charges against the offender, successfully terminate the offender’s sentence, permit the offender to enter into a plea agreement to a lesser offense, or otherwise discharge him or her from any further proceedings against him or her in the original prosecution.

 (f) Nothing in this article shall be construed to permit a military service member court or any other court or tribunal to enter an order or take any other action that violates any applicable federal law or regulation, including, but not limited to:

(1) The requirements or conditions contained in 23 U.S.C. §164 et seq. and 23 C.F.R. §1275 et seq.; and

(2) The requirements or conditions contained in 49 U.S.C. 31311 and 49 C.F.R. §384 et seq.