ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 22
(By Senators Ross, Jenkins, Kessler, Sharpe, Deem, Facemyer,
Weeks, Minear, Guills, Boley, Smith, Hunter, Rowe, Fanning,
White, McCabe, Caldwell, Love, Harrison, McKenzie, Unger and
Minard)
____________
[Originating in the Committee on the Judiciary;
reported March 1, 2004.]
____________
A BILL to amend and reenact §17B-1-1 of the code of West Virginia,
1931, as amended;
to amend said code by adding thereto a new
section, designated §17C-1-67
; and to amend and reenact
§17C-5A-3a of said code,
all relating to defining the term
"conviction"; and requiring mandatory participation in the
motor vehicle alcohol test and lock program for repeat
offenders.
Be it enacted by the Legislature of West Virginia:
That
§17B-1-1
of the code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §17C-1-67
;
and that
§17C-5A-3a of
said code be amended and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17B-1-1. Definitions.
The following words and phrases when used in this chapter
shall, for the purpose of this chapter, have the meanings
respectively ascribed to them in this article:
(a)
Vehicle. -- Every device in, upon or by which any person
or property is or may be transported or drawn upon a public
highway, excepting devices moved by human power or used exclusively
upon stationary rails or tracks;
(b)
Motor vehicle. -- Every vehicle which is self-propelled
and every vehicle which is propelled by electric power obtained
from overhead trolley wires, but not operated upon rails;
(c)
Motorcycle. -- Every motor vehicle having a seat or saddle
for the use of the rider and designed to travel on not more than
three wheels in contact with the ground, but excluding a farm
tractor as defined herein, a moped as defined in section five-a,
article one, chapter seventeen-c of this code, a snowmobile as
defined in section one-mm, article one, chapter seventeen-a of said
code and an all-terrain vehicle as defined in section one-ii of
said article;
(d)
Farm tractor. -- Every motor vehicle designed and used
primarily as a farm implement for drawing plows, mowing machines
and other implements of husbandry;
(e)
School bus. -- Every motor vehicle owned by a public
governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation
for the transportation of children to or from school;
(f)
Person. -- Every natural person, firm, copartnership,
association or corporation;
(g)
Operator. -- Every person, other than a chauffeur, who
drives or is in actual physical control of a motor vehicle upon a
highway or who is exercising control over or steering a vehicle
being towed by a motor vehicle;
(h)
Chauffeur. -- Every person who is employed by another for
the principal purpose of driving a motor vehicle and every person
who drives a school bus transporting school children or any motor
vehicle when in use for the transportation of persons or property
for compensation;
(i)
Driver. -- Means any person who drives, operates or is in
physical control of a motor vehicle in any place open to the
general public for purposes of vehicular traffic or who is required
to hold a driver's license;
(j)
Driver's license. -- Means any permit or license issued by
this state to a person which authorizes the person to drive a motor
vehicle of a specific class or classes subject to any restriction
or endorsement contained thereon;
(k)
Owner. -- A person who holds the legal title of a vehicle
or in the event a vehicle is the subject of an agreement for the
conditional sale or lease thereof with the right of purchase upon
performance of the conditions stated in the agreement and with an
immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to
possession, then such conditional vendee or lessee or mortgagor
shall be deemed the owner for the purpose of this chapter;
(l)
Nonresident. -- Every person who is not a resident of this
state;
(m)
Street or highway. -- The entire width between the
boundary lines of every way publicly maintained when any part
thereof is open to the use of the public for purposes of vehicular
travel;
(n)
Commissioner. -- The commissioner of motor vehicles of
this state;
(o)
Department Division. -- The
department division of motor
vehicles of this state acting directly or through its duly
authorized officers or agents;
(p)
Suspension. -- Suspension means that the driver's license
and privilege to drive a motor vehicle on the public highways are
temporarily withdrawn but only during the period of such
suspension;
(q)
Revocation. -- Revocation means that the driver's license
and privilege to drive a motor vehicle on the public highways are
terminated and shall not be renewed or restored, except that an
application for a new license may be presented and acted upon by
the division after the expiration of at least one year after the
date of revocation, except as otherwise provided in section two,
article five-a, chapter seventeen-c of this code;
(r)
Cancellation. -- Cancellation means that a driver's license is annulled and terminated because of some error or defect
or because the licensee is no longer entitled to such license, but
the cancellation of a license is without prejudice and application
for a new license may be made at any time after such cancellation;
(s) Conviction. -- Conviction means a plea of guilty or nolo
contendere, a forfeiture of bond or collateral or a finding of
guilt by a court or a jury.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17C-1-67. Conviction.
Conviction" as used in this article shall have the same
meaning as that term is defined in article one, chapter seventeen-b
of this code.
§17C-5A-3a. Establishment of and participation in the motor
vehicle alcohol test and lock program.
(a) The division of motor vehicles shall control and regulate
a motor vehicle alcohol test and lock program for persons whose
licenses have been revoked pursuant to this article or the
provisions of article five of this chapter,
or have been convicted
under section two, article five of this chapter. Such The program
shall include
the establishment of a users fee
of seventy-five
dollars for persons participating in the program which shall be
paid in advance and deposited into the driver's rehabilitation
fund. Except where specified otherwise, the use of the term
"program" in this section refers to the motor vehicle alcohol test
and lock program. The commissioner of the division of motor vehicles shall propose legislative rules for promulgation in
accordance with the provisions of chapter twenty-nine-a of this
code for the purpose of implementing the provisions of this
section.
Such The rules shall also prescribe those requirements
which, in addition to the requirements specified by this section
for eligibility to participate in the program, the commissioner
determines must be met to obtain the commissioner's approval to
operate a motor vehicle equipped with a motor vehicle alcohol test
and lock system. For purposes of this section, a "motor vehicle
alcohol test and lock system" means a mechanical or computerized
system which, in the opinion of the commissioner, prevents the
operation of a motor vehicle when, through the system's assessment
of the blood alcohol content of the person operating or attempting
to operate the vehicle,
such the person is determined to be under
the influence of alcohol.
(b) (1) Any person whose license
has been is revoked
for the
first time pursuant to this article or the provisions of article
five of this chapter is eligible to participate in the program when
such the person's minimum revocation period as specified by
subsection (c) of this section has expired and
such the person is
enrolled in or has successfully completed the safety and treatment
program or presents proof to the commissioner within sixty days of
receiving approval to participate by the commissioner that he or
she is enrolled in a safety and treatment program.
Provided, That
no person whose license has been revoked pursuant to the provisions
of section one-a of this article for conviction of an offense defined in subsections a) or (b), section two, article five of this
chapter, or pursuant to the provisions of subsections (f) or (g),
section two of this article, shall be eligible for participation in
the program: Provided, however, That any person whose license is
revoked pursuant to this article or pursuant to article five of
this chapter for an act which occurred either while participating
in or after successfully completing the program shall not again be
eligible to participate in such program
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article for
driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than
ten eight
hundredths of one percent, by weight, is eligible to participate in
the program after thirty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect:
Provided, That in the case of a person under the age of
eighteen, the person
shall be is eligible to participate in the
program after thirty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in effect
or after the person's eighteenth birthday, whichever is later.
Before the commissioner approves a person to operate a motor
vehicle equipped with a motor vehicle alcohol test and lock system,
the person must agree to
thereafter comply with the following
conditions:
(A) If not already enrolled, the person will enroll in and complete the educational program provided for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational program,
any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program
under
this subsection shall may operate a motor vehicle unless approved
to do so by the commissioner.
(c)
For purposes of this section, "minimum revocation period"
means the portion which has actually expired of the period of
revocation imposed by the commissioner pursuant to this article or
the provisions of article five of this chapter upon a person
eligible for participation in the program A person who participates
in the program under subdivision (1), subsection (b) of this
section is subject to a minimum revocation period and minimum
period for the use of the ignition interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in
subsection
(d) or (f), section two, article five of this chapter or pursuant
to subsection (i), section two of this article, the minimum period
of revocation
before such person is eligible for participation in the test and lock program is thirty days and the minimum period for
the use of the ignition interlock device is five months;
or that
the period described in subdivision (1), subsection (e) of this
section, whichever period is greater
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
refusal to submit to a designated secondary chemical test, the
minimum period of revocation
before such person is eligible for
participation in the test and lock program is thirty days and the
minimum period for the use of the ignition interlock device is nine
months;
or the period set forth in subdivision (1), subsection (e)
of this section, whichever period is greater
(3) For a person whose license has been revoked for a
second
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in
subsection (a),
section two, article five of this chapter or pursuant to
subsection
(f), section two of this article, the minimum period of revocation
before
such the person is eligible for participation in the test
and lock program is
nine twelve months and the minimum period for
the use of the ignition interlock device is
eighteen months two
years; or that period set forth in subdivision (2), subsection (e)
of this section, whichever period is greater
(4) For a person whose license has been revoked for
any other
period of time a first offense pursuant to the provisions of
section one-a of this article for conviction of an offense defined
in
subsection (b), section two, article five of this chapter or pursuant to
subsection (g), section two of this article,
or
pursuant to section seven, article five of this chapter the minimum
period of revocation is
eighteen six months and the minimum period
for the use of the ignition interlock device is two years;
or that
period set forth in subdivision (3), subsection (e) of this
section, whichever period is greater
(5) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (c), section
two, article five of this chapter or pursuant to subsection (h),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is one year;
(6) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (i), section
two, article five of this chapter or pursuant to subsection (m),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is
convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or license was revoked under any provision cited in this subsection within the past ten years. The
minimum revocation period for a person required to participate in
the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection (l), section two
of this article or subsection (h), section two, article five of
this chapter is two months and the minimum period of participation
is one year. The division will add one year to the minimum period
for the use of the ignition interlock device for each additional
previous conviction or revocation within the past ten years. Any
person required to participate under this subsection must have an
ignition interlock device installed on every vehicle he or she owns
or operates.
(5) (e) An applicant for the test and lock program
must may
not have been convicted of any violation of section three, article
four, chapter seventeen-b of this code for driving while the
applicant's driver's license was suspended or revoked within the
two-year six-month period preceding the date of application for
admission to the test and lock program;
(6) The commissioner is hereby authorized to allow individuals
in the test and lock program an additional device or devices if
such is necessary for employment purposes.
(d) (f) Upon permitting an eligible person to participate in
the program, the commissioner shall issue to
such the person, and
such the person
shall be is required to exhibit on demand, a driver's license which shall reflect that
such the person is
restricted to the operation of a motor vehicle which is equipped
with an approved motor vehicle alcohol test and lock system.
(g) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the restoration
of such person's driver's license upon the expiration of:
(1) One hundred eighty days of the full revocation period
imposed by the commissioner for a person described in subdivision
(1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for
a person described in subdivision (3), subsection (c) of this
section;
(3) One year from the date a person described in subdivision
(4), subsection (c) of this section is permitted to operate a motor
vehicle by the commissioner.
(f) (h) A person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article who
has completed the educational program, and who has not violated the terms required by the commissioner of
such the person's
participation in the
motor vehicle alcohol test and lock program,
shall be 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
shall be 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
such
the records have been expunged and by securely sealing and filing
the records. Expungement
shall have has the legal effect as if the
suspension never occurred. The records
shall 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
such the information does not divulge the identity of
the person.
(g) (i) In addition to any other penalty imposed by this code,
any person who operates a motor vehicle not equipped with an
approved motor vehicle alcohol test and lock system during such
person's participation in the motor vehicle alcohol test and lock
program is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county
or regional jail for a period not
less than one month nor more than six months and fined not less
than one hundred dollars nor more than five hundred dollars. Any
person who
assists another person required by the terms of such
other person's participation in the motor vehicle alcohol test and
lock program to use a motor vehicle alcohol test and lock system in
any effort attempts to bypass the
alcohol test and lock system is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county
or regional jail not more than six months
and fined not less than one hundred dollars nor more than one
thousand dollars.
Provided, That notwithstanding any provision of
this code to the contrary, a person enrolled and participating in
the test and lock program may operate a motor vehicle solely at his
or her job site, if such is a condition of his or her employment