ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 435
(Senators Kessler and Jenkins, original sponsors)
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[Passed April 9, 2005; in effect ninety days from passage.]
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AN ACT to amend and reenact §8-10-2b of the Code of West Virginia,
1931, as amended; and to amend and reenact §17B-3-3c and §17B-
3-9 of said code, all relating to consequences of not paying
fines and fees; requiring notice of possibility of withholding
of income tax refund under certain circumstances; providing
that Tax Commissioner may withhold income tax refund under
certain circumstances; providing for distribution of income
tax refund withheld; providing Tax Commissioner's
administrative fee; providing Tax Commissioner authority to
promulgate rules; authorizing reissuance of notice by
municipal court under certain circumstances; providing for
continuance of driver's license suspension under certain
circumstances; creating fund for administrative fee and
providing for expenditures from the fund; providing for
consequences of erroneous imposition of fines or fees; and
increasing fees.
Be it enacted by the Legislature of West Virginia:
That §8-10-2b of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §17B-3-3c and §17B-3-9 of said
code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and
costs or failure to appear in court.
(a) If costs, fines, forfeitures or penalties imposed by the
municipal court upon conviction of a person for a criminal offense
as defined in section three-c, article three, chapter seventeen-b
of this code are not paid in full within one hundred eighty days of
the judgment, the municipal court clerk or, upon a judgment
rendered on appeal, the circuit clerk shall notify the Division of
Motor Vehicles of the failure to pay:
Provided, That at the time
the judgment is imposed, the judge shall provide the person with
written notice that failure to pay the same as ordered may result
in the withholding of any income tax refund due the licensee and
shall result in the suspension of the person's license or privilege
to operate a motor vehicle in this state and that the suspension
could result in the cancellation of, the failure to renew or the
failure to issue an automobile insurance policy providing coverage
for the person or the person's family:
Provided, however, That the
failure of the judge to provide notice does not affect the validity
of any suspension of the person's license or privilege to operate a motor vehicle in this state. For purposes of this section,
payment shall be stayed during any period an appeal from the
conviction which resulted in the imposition of costs, fines,
forfeitures or penalties is pending.
Upon notice, the Division of Motor Vehicles shall suspend the
person's driver's license or privilege to operate a motor vehicle
in this state until such time that the costs, fines, forfeitures or
penalties are paid.
(b) Notwithstanding the provisions of this section to the
contrary, the notice of the failure to pay costs, fines,
forfeitures or penalties may not be given where the municipal
court, upon application of the person upon whom the costs, fines,
forfeitures or penalties were imposed filed prior to the expiration
of the period within which these are required to be paid, enters an
order finding that the person is financially unable to pay all or
a portion of the costs, fines, forfeitures or penalties:
Provided,
That where the municipal court, upon finding that the person is
financially unable to pay a portion of the costs, fines,
forfeitures or penalties, requires the person to pay the remaining
portion, the municipal court shall notify the Division of Motor
Vehicles of the person's failure to pay if not paid within the
period of time ordered by the court.
(c) If a person charged with a criminal offense fails to
appear or otherwise respond in court, the municipal court clerk
shall notify the Division of Motor Vehicles within fifteen days of
the scheduled date to appear unless the person sooner appears or otherwise responds in court to the satisfaction of the judge. Upon
notice, the Division of Motor Vehicles shall suspend the person's
driver's license or privilege to operate a motor vehicle in this
state until such time that the person appears as required.
(d) On and after the first day of July, two thousand eight, if
the licensee fails to respond to the Division of Motor Vehicles
order of suspension within ninety days of receipt of the certified
letter, the municipal court of original jurisdiction shall notify
the Tax Commissioner that the licensee has failed to pay the costs,
fines, forfeitures or penalties assessed by the court or has failed
to respond to the citation. The notice provided by the municipal
court to the Tax Commissioner must include the licensee's social
security number. The Tax Commissioner, or his or her designee,
shall withhold from any personal income tax refund due and owing to
a licensee the costs, fines, forfeitures or penalties due to the
municipality, the Tax Commissioner's administration fee for the
withholding and any and all fees that the municipal court would
have collected had the licensee appeared: Provided, That the Tax
Commissioner's administration fee may not exceed twenty-five
dollars: Provided, however, That the Tax Commissioner may change
this maximum amount limitation for this fee for fiscal years
beginning on or after the first day of July, two thousand eight, by
legislative rule promulgated in accordance with the provisions of
article three, chapter twenty-nine-a of this code: Provided
further, That the administrative fees deducted shall be deposited
in the special revolving fund hereby created in the state treasury, which shall be designated as the "municipal fines and fees
collection fund", and the Tax Commissioner shall make such
expenditures from the fund as he or she deems appropriate for the
administration of this subsection. After deduction of the Tax
Commissioner's administration fee, the Tax Commissioner shall remit
to the municipality all remaining amounts withheld pursuant to this
section and the municipal court shall distribute applicable costs,
fines, forfeitures or penalties owed to the municipality, the
Regional Jail Authority Fund, the Crime Victims Compensation Fund,
the Community Corrections Fund, the Governor's subcommittee on law-
enforcement training or any other fund or payee that may be
applicable. After the costs, fines, forfeitures or penalties are
withheld, the Tax Commissioner shall refund any remaining balance
due the licensee. If the refund is not sufficient to cover all the
costs, fines, forfeitures or penalties being withheld pursuant to
this section, the Tax Commissioner's administration fee shall be
retained by the Tax Commissioner and the remaining money withheld
shall be remitted by the Tax Commissioner to the municipality. The
municipality shall then allocate the money so remitted to the
municipality in the following manner: (1) Any costs, fines,
forfeitures or penalties due to the municipality; (2) seventy-five
percent of the remaining balance shall be paid to the appropriate
Regional Jail Authority Fund; (3) fifteen percent of the remaining
balance shall be paid to the Crime Victims Compensation Fund; (4)
six percent of the remaining balance shall be paid into the
Community Corrections Fund; and (5) the final four percent shall be paid to the Governor's subcommittee on law-enforcement training.
When the costs, fines, forfeitures or penalties exceed the
licensee's income tax refund, the Tax Commissioner shall withhold
the remaining balance in subsequent years until such time as the
costs, fines, forfeitures or penalties owed are paid in full. The
Tax Commissioner shall remit the moneys that he or she collects to
the appropriate municipality no later than the first day of July of
each year. If the municipal court or the municipality subsequently
determines that any such costs, fines, forfeitures or penalties
were erroneously imposed, the municipality shall promptly notify
the tax commissioner. If the refunds have not been withheld and
remitted, the tax commissioner may not withhold and remit payment
to the municipality and shall so inform the municipality. If the
refunds have already been withheld and remitted to the
municipality, the tax commissioner shall so inform the
municipality. In either event, all refunds for erroneously imposed
costs, fines, forfeitures or penalties shall be made by the
municipality and not by the tax commissioner.
(e) Rules and effective date. - The Tax Commissioner may
promulgate such rules as may be useful or necessary to carry out
the purpose of this section and to implement the intent of the
Legislature, to be effective on the first day of July, two thousand
eight. Rules shall be promulgated in accordance with the
provisions of article three, chapter twenty-nine-a of this code.
(f) On or before the first day of July, two thousand five, the
municipal court may elect to reissue notice as provided in subsections (a) and (c) of this section to the Division of Motor
Vehicles for persons who remain noncompliant: Provided, That the
person was convicted or failed to appear on or after the first day
of January, one thousand nine hundred ninety-three. If the
original notification cannot be located, the Division of Motor
Vehicles shall accept an additional or duplicate notice from the
municipal court clerk.
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 said code or section
seventeen, article four, chapter sixty-two of said 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 said code;
section two-b, article ten, chapter eight of said code; and section
seventeen, article four, chapter sixty-two of said 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 a correctional facility of this state:
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 said code; section
two-b, article three, chapter fifty of said code; or section
seventeen, article four, chapter sixty-two of said 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.
(c) A suspension under this section and section three-a of
this chapter will continue until the person provides proof of
compliance from the municipal, magistrate or circuit court and pays
the reinstatement fee as provided in section nine of this article.
The reinstatement fee is assessed upon issuance of the order of
suspension regardless of the effective date of suspension.
§17B-3-9. Surrender and return of license not required.
The Division, upon suspending or revoking a license, may not
require that the license be surrendered to and be retained by the
Division. The surrender of a license may not be a precondition to
the commencement and tolling of any applicable period of suspension
or revocation:
Provided, That before the license may be
reinstated, the licensee shall pay a fee of fifty dollars, in
addition to all other fees and charges, which shall be collected by
the Division and deposited in a special revolving fund to be
appropriated to the Division for use in the enforcement of the
provisions of this section.
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