COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 407
(By Senators Minear and Hunter)
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[Originating in the Committee on the Judiciary;
reported February 26, 2003.]
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A BILL to amend and reenact section three-c, article three, chapter
seventeen-b of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section thirty-nine-g, article three, chapter sixty-one of
said code, all relating to providing that when a person writes
a worthless check in this state which results in a summons to
appear in magistrate court but then fails to appear, he or she
shall have his or her privilege to drive in this state
revoked.
Be it enacted by the Legislature of West Virginia:
That section three-c, article three, chapter seventeen-b of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section thirty-nine-g,
article three, chapter sixty-one of said code be amended and
reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or
penalties imposed as the result of criminal conviction or for
failure to appear in court.
(a) The division shall suspend the license of any resident of
this state or the privilege of a nonresident to drive a motor
vehicle in this state upon receiving notice from a circuit court,
magistrate court or municipal court of this state, pursuant to
section two-b, article three, chapter fifty of this code, or
section two-b, article ten, chapter eight of this code,
or section
thirty-nine-g, article three, chapter sixty-one of this code, or
section seventeen, article four, chapter sixty-two of this code,
that such person has defaulted on the payment of costs, fines,
forfeitures, penalties or restitution imposed on the person by the
circuit court, magistrate court or municipal court upon conviction
for any criminal offense by the date such court had required such
person to pay the same, or that such person has failed to appear in
court when charged with such an offense. For the purposes of this
section, section two-b, article three, chapter fifty of this code;
section two-b, article ten, chapter eight of this code; and section
seventeen, article four, chapter sixty-two of this code, "criminal
offense" shall be defined as any violation of the provisions of
this code, or the violation of any municipal ordinance, for which
the violation thereof may result in a fine, confinement in jail or
imprisonment in the penitentiary of this state
or for worthless
check offenses under chapter sixty-one of this code:
Provided, That any parking violation or other violation for which a citation
may be issued to an unattended vehicle shall not be considered a
criminal offense for the purposes of this section, section two-b,
article ten, chapter eight of this code; section two-b, article
three, chapter fifty of this code; or section seventeen, article
four, chapter sixty-two of this code.
(b) A copy of the order of suspension shall be forwarded to
such person by certified mail, return receipt requested. No order
of suspension becomes effective until ten days after receipt of a
copy of such order. The order of suspension shall advise the
person that because of the receipt of notice of the failure to pay
costs, fines, forfeitures or penalties, or the failure to appear,
a presumption exists that the person named in the order of
suspension is the same person named in the notice. The
commissioner may grant an administrative hearing which
substantially complies with the requirements of the provisions of
section two, article five-a, chapter seventeen-c of this code upon
a preliminary showing that a possibility exists that the person
named in the notice of conviction is not the same person whose
license is being suspended. Such request for hearing shall be made
within ten days after receipt of a copy of the order of suspension.
The sole purpose of this hearing shall be for the person requesting
the hearing to present evidence that he or she is not the person
named in the notice. In the event the commissioner grants an
administrative hearing, the commissioner shall stay the license
suspension pending the commissioner's order resulting from the hearing.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39g. Complaint; notice of complaint; issuance of warrant or
summons; payment procedures; costs.
After receipt of a complaint for warrant
or summons for a
violation of section thirty-nine or thirty-nine-a of this article
the magistrate court shall proceed with the issuance of the warrant
or summons as is provided by law:
Provided, That no warrant
or
summons may issue for an offense under section thirty-nine or
thirty-nine-a of this article which, upon conviction, would be
punishable as a misdemeanor, unless the payee or holder of the
check, draft or order which has been dishonored has sent notice
thereof to the drawer of the check, draft or order in accordance
with the provisions of section thirty-nine-e of this article, or
unless notice has been sent by the magistrate as hereinafter
provided. Proof that the notice was sent by the payee or holder
may be evidenced by presentation of a return receipt indicating
that the notice was mailed to the drawer by certified mail, or, in
the event the mailed notice was not received or was refused by the
drawer, by presentation of the mailed notice itself. The
magistrate court shall receive and hold the check, draft or order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or holder,
the magistrate court shall immediately prepare and mail to the
drawer of the check, draft or order a notice in form substantially as follows. The magistrate court shall impose any service charge
reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution in
connection with the check, draft or order and additional court
costs in the amount of ten dollars. This notice shall be mailed to
the drawer by United States mail, first class and postpaid, at the
address provided at the time of presenting the check, draft or
order. Service of this notice is complete upon mailing. The
notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following effect
and purpose by .............. who upon oath complains that on the
....... day of ...............,
19 20......, you did unlawfully
issue and deliver unto him
or her a certain check, draft or order
in the amount of ......................... drawn on
.................................................... (name of bank
or financial institution) ................. where you did not have
funds on deposit in or credit with the bank or financial
institution with which to pay the check, draft or order upon
presentation and pray that a warrant issue and that you be
apprehended wherever you may be found by an officer authorized to
make an arrest and dealt with in accordance with the laws of the
state of West Virginia.
"A warrant for arrest will be issued on or after the .........
day of .......................,
19 20......
"You can nullify the effect of this complaint and avoid arrest by paying to the magistrate court clerk at ......................
the amount due on the check, draft or order; service charges
imposed on the payee or holder by the payee's or holder's bank or
financial institution in connection with the check, draft or order
in the amount of ..........; and the costs of this proceeding in
the amount of ten dollars on or before the .......... day of
....................,
19 20......, at which time you will be given
a receipt with which you can obtain the check, draft or order from
the magistrate court. The complainant is forbidden by law to
accept payment after the complaint is filed.
Magistrate Court of .................. County
.............................................
Date: .............................."
This notice shall give the drawer of any such check, draft or
order ten days within which to make payment to magistrate court.
In the event the drawer pays the total amount set forth in the
notice to the magistrate court within the ten-day period, no
warrant
or summons may issue. The payment may be made to the
magistrate court in person or by mail by cash, certified check,
bank draft or money order and, in the event the payment is made by
mail, the magistrate court clerk shall immediately mail to the
maker of the check, draft or order the receipt required by this
section. In the event the total amount is not so paid the court
shall proceed with the issuance of the warrant
or summons as is
provided by law.
Upon receipt of payment of the total amount the magistrate court clerk shall issue to the drawer a receipt sufficiently
describing the check, draft or order with which receipt the drawer
is entitled to receive the dishonored check, draft or order from
the magistrate court holding it. The magistrate court clerk shall
forward the amount of the check, draft or order, together with any
service charge reflected on the complaint as having been imposed on
the payee or holder by the payee's or holder's bank or financial
institution in connection with the check, draft or order, to the
payee or holder thereof, along with a description of the check,
draft or order sufficient to enable the person filing the complaint
to identify it and the transaction involved. Costs collected shall
be dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
or summons has been issued may at any time prior to trial pay to
the court the amount of the check, draft or order; any service
charge reflected in the complaint as having been imposed on the
payee or holder by the payee's or holder's bank or financial
institution in connection with the check, draft or order; and the
court costs which would be assessed if the person were found guilty
of the offense charged. These costs shall be imposed in accordance
with the provisions of section two, article three, chapter fifty of
this code.
Any summons issued under this section shall state a date, time
and place in which the drawer shall be required to appear before a
magistrate in the county wherein the worthless check, draft or
order issued, and be forwarded to the drawer's last known address. The drawer shall also be given the option, in lieu of appearing, to
make payment of the amount of the worthless check, draft or order
plus any applicable court costs.
In the event the drawer fails to appear pursuant to the
summons and fails to satisfy the amount of the worthless check,
draft or order plus applicable court costs, the clerk of the court
shall forward his or her name and address to the West Virginia
division of motor vehicles which shall revoke his or her privilege
to operate a motor vehicle in this state, pursuant to section
three-c, article three, chapter seventeen-b of this code.
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(NOTE: The purpose of this bill is to provide that when a
person from another state writes a worthless check in this state
which results in a summons to appear in magistrate court but then
fails to appear the person shall have his or her privilege to drive
in this state revoked.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)
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