WEST virginia legislature

2018 regular session

Committee Substitute

for

Senate Bill 420

By Senators Rucker, Karnes, Smith, Sypolt, Trump, Cline, and Boso

[Originating in the Committee on the Judiciary; Reported on February 21, 2018]

A BILL to amend and reenact §17C-5A-3 and §17C-5A-3a of the Code of West Virginia, 1931, as amended, all relating to transferring the safety and treatment program, which treats and educates people whose licenses were revoked due to concerns of alcohol and/or drug use while operating a motor vehicle, from the Department of Health and Human Resources to the Division of Motor Vehicles and amending references thereto in said code; transferring moneys from the Department of Health and Human Resources Safety and Treatment Fund to the Division of Motor Vehicles Safety and Treatment Fund; providing that a portion of program provider fees be deposited in Division of Motor Vehicles Safety and Treatment Fund; and transferring rule-making authority.

Be it enacted by the Legislature of West Virginia:

ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES, OR DRUGS.

§17C-5A-3. Safety and treatment program; reissuance of license.

(a) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles shall administer a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article, or §17C-5-7, or §17B-3-5(6) of this code and shall also establish the minimum qualifications for mental health facilities, day report centers, community correction centers, or other public agencies or private entities conducting the safety and treatment program: Provided, That the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.

(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction, and other programs designed to properly educate, train, and rehabilitate the offender.

(c) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles shall provide for the preparation of an educational and treatment program for each person whose license has been revoked under the provisions of this article, or §17C-5-7, or §17B-3-5(6) of this code which shall contain the following: (1) A listing and evaluation of the offender’s prior traffic record; (2) the characteristics and history of alcohol or drug use, if any; (3) his or her amenability to rehabilitation through the alcohol safety program; and (4) a recommendation as to treatment or rehabilitation and the terms and conditions of the treatment or rehabilitation. The program shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment.

(d) There is hereby created a special revenue account within the State Treasury known as the Department of Health and Human Resources Division of Motor Vehicles Safety and Treatment Fund. The account shall be administered by the Secretary Commissioner of the Department of Health and Human Resources Division of Motor Vehicles for the purpose of administering the comprehensive safety and treatment program established by §17C-5A-3(a) of this code. The account may be invested, and all earnings and interest accruing shall be retained in the account. The Auditor shall conduct an audit of the fund at least every three fiscal years.

Effective July 1, 2010, the State Treasurer shall make a one-time transfer of $250,000 from the Motor Vehicle Fees Fund into the Department of Health and Human Resources Safety and Treatment Fund Effective on July 1, 2018, all moneys held in the Department of Health and Human Resources Safety and Treatment Fund shall be transferred to the Division of Motor Vehicles Safety and Treatment Fund.

(e)(1) The program provider shall collect the established fee from each participant upon enrollment unless the department division has determined that the participant is an indigent, based upon criteria established pursuant to legislative rule authorized in this section.

(2) If the department division determined that a participant is an indigent based upon criteria established pursuant to the legislative rule authorized by this section, the department division shall provide the applicant with proof of its determination regarding indigency. which proof The applicant shall present the proof to the interlock provider as part of the application process provided in §17C-5A-3a of this code and/or the rules promulgated pursuant thereto to the code.

(3) Program providers shall remit to the Department of Health and Human Resources Division of Motor Vehicles a portion of the fee collected, which shall be deposited by the Secretary of the Department of Health and Human Resources Commissioner of the Division of Motor Vehicles into the Department of Health and Human Resources Division of Motor Vehicles Safety and Treatment Fund. The Department of Health and Human Resources Division of Motor Vehicles shall reimburse enrollment fees to program providers for each eligible indigent offender.

(f) On or before January 15 of each year, the Secretary of the Department of Health and Human Resources Commissioner of the Division of Motor Vehicles shall report to the Legislature on:

(1) The total number of offenders participating in the safety and treatment program during the prior year;

(2) The total number of indigent offenders participating in the safety and treatment program during the prior year;

(3) The total number of program providers during the prior year; and

(4) The total amount of reimbursements paid to program provider during the prior year.

(g) The Commissioner of the Division of Motor Vehicles, after giving due consideration to the program developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article, or §17C-5-7, or §17B-3-5(6) of this code which shall include successful completion of the educational, treatment, or rehabilitation program, subject to the following:

(1) When the period of revocation is six months, the license to operate a motor vehicle in this state may not be reissued until: (A) At least 90 days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(2) When the period of revocation is for a period of one year or for more than a year, the license to operate a motor vehicle in this state may not be reissued until: (A) At least one-half of the time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid. Notwithstanding any provision in this code to the contrary, a person whose license is revoked for refusing to take a chemical test as required by §17C-5-7 of this code, for a first offense is not eligible to reduce the revocation period by completing the safety and treatment program.

(3) When the period of revocation is for life, the license to operate a motor vehicle in this state may not be reissued until: (A) At least 10 years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(4) Notwithstanding any provision of this code or any rule to the contrary, any mental health facilities, or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program shall only have to certify that the person has successfully completed the program.

(h)(1) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles shall provide for the preparation of an educational program for each person whose license has been suspended for 60 days pursuant to the provisions of §17C-5A-2(n) of this code. The educational program shall consist of not less than 12 nor more than 18 hours of actual classroom time.

(2) When a 60-day period of suspension has been ordered, the license to operate a motor vehicle may not be reinstated until: (A) At least 60 days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.

(i) A required component of the treatment program provided in §17C-5A-3(b) of this code and the education program provided for in §17C-5A-3(c) of this code shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug-related offenses and offenders to share first-hand experiences on the impact of alcohol and drug-related offenses in their lives. The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles shall propose and implement a plan for victim impact panels where appropriate numbers of victims are available and willing to participate and shall establish guidelines for other innovative programs which may be substituted where the victims are not available to assist persons whose licenses have been suspended or revoked for alcohol and drug-related offenses to gain a full understanding of the severity of their offenses in terms of the impact of the offenses on victims and offenders. The plan shall require, at a minimum, discussion and consideration of the following:

(A) Economic losses suffered by victims or offenders;

(B) Death or physical injuries suffered by victims or offenders;

(C) Psychological injuries suffered by victims or offenders;

(D) Changes in the personal welfare or familial relationships of victims or offenders; and

(E) Other information relating to the impact of alcohol and drug-related offenses upon victims or offenders.

The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse Division of Motor Vehicles shall ensure that any meetings between victims and offenders shall be are nonconfrontational and ensure the physical safety of the persons involved.

(j)(1) The Secretary of the Department of Health and Human Resources Commissioner of the Division of Motor Vehicles shall promulgate a rule for legislative approval in accordance with §29A-3-1 et seq. of this code to administer the provisions of this section and establish a fee to be collected from each offender enrolled in the safety and treatment program. The rule shall include: (A) A reimbursement mechanism to program providers of required fees for the safety and treatment program for indigent offenders, criteria for determining eligibility of indigent offenders, and any necessary application forms; and (B) program standards that encompass provider criteria including minimum professional training requirements for providers, curriculum approval, minimum course length requirements, and other items that may be necessary to properly implement the provisions of this section.

(2) The Legislature finds that an emergency exists and, therefore, the Secretary commissioner shall file by July 1, 2010 2018, an emergency rule to implement this section pursuant to the provisions of §29A-3-15 of this code.

(k) Nothing in this section may be construed to prohibit day report or community correction programs, authorized pursuant to §62-11C-1 et seq. of this code, from administering a comprehensive safety and treatment program pursuant to this section.

§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-3-1 et seq. 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 correction programs authorized pursuant to §62-11C-1 et seq. of this code, 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 Department of Health and Human Resources 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 Department of Health and Human Resources 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;

(C) The terms of any contracts with the providers of ignition interlock devices; and

(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. 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 of 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 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 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 than 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 sixteenth 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 that person under the provisions of this section. Such The 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-3a(e)(1) of this code constitutes an automatic waiver of their his or her 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.

(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 participation in the program is necessary for employment purposes.

(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 reflects 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) from the program for violations of the terms and conditions thereof of the program, 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 in which 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.