SB522 SUB1
Senate Bill 522 History
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COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 522
(By Senators Laird, Palumbo, Kirkendoll, Cookman, Cann, Snyder
and Fitzsimmons)
____________
[Originating in the Committee on the Judiciary;
reported March 20, 2013.]
____________
A BILL to amend and reenact §8-10-2a and §8-10-2b of the Code of
West Virginia, 1931, as amended; to amend and reenact §8-11-1
and §8-11-1a
of said code; and to amend and reenact §50-3-2a
of said code, all relating to the collection and processing of
court costs, fines, forfeitures, penalties and collateral
consequences of nonpayment or failure to appear; requiring
certain collection processes occur after an appeal has
concluded; reducing certain time requirements for notification
to the Division of Motor Vehicles; requiring notice between
thirty and ninety days to the Division of Motor Vehicles for
failure to appear in certain situations and stipulating the
subsequent suspension lasts until the citation is resolved satisfactorily; permitting tax refund withholding if certain
amounts remain unpaid for a year or persons fail to appear for
a year to municipal court; and providing for a fee on all
municipal offenses to be paid to the
Regional Jail and
Correctional Facility Authority Fund and municipal
administrative costs.
Be it enacted by the Legislature of West Virginia:
That §8-10-2a and §8-10-2b of the Code of West Virginia, 1931,
as amended, be amended and reenacted; that §8-11-1 and §8-11-1a of
said code be amended and reenacted; and that §50-3-2a of said code
be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2a. Payment of fines by credit cards or payment plan;
suspension of driver's license for failure to pay
motor vehicle violation fines or to appear in court.
(a) A municipal court may accept credit cards in payment of
all costs, fines, forfeitures or penalties. A municipal court may
collect a substantial portion of all costs, fines, forfeitures or
penalties at the time such the amount is imposed by the court so
long as the court requires the balance to be paid within one
hundred eighty days from the date of judgment and the expiration of
any stay of execution and in accordance with a payment plan:
Provided, That all costs, fines, forfeitures or penalties imposed by the municipal court upon a nonresident of this state by judgment
entered upon a conviction for a motor vehicle violation defined in
section three-a, article three, chapter seventeen-b of this code
must be paid within eighty ninety days from the date of judgment.
The payment plan shall specify: (1) The number of additional
payments to be made; (2) the dates on which such payments and
amounts shall be made; and (3) amounts due on such dates.
(b) If costs, fines, forfeitures or penalties imposed by the
municipal court for motor vehicle violations as defined in section
three-a, article three, chapter seventeen-b of this code are not
paid within the time limits imposed pursuant to subsection (a) of
this section, or if a person fails to appear or otherwise respond
in court when charged with a motor vehicle violation as defined in
section three-a, article three, chapter seventeen-b of this code,
the municipal court must notify the Commissioner of the Division of
Motor Vehicles of such the failure to pay or failure to appear.
Provided, That Notwithstanding any other provision of this code to
the contrary, the municipal court shall wait at least ninety thirty
days from the date that all costs, fines, forfeitures or penalties
are due in full or, for failure to appear or otherwise respond,
ninety at least thirty but no more than ninety days from the date
of such failure before notifying the Division of Motor Vehicles
thereof.
§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 and the expiration of any stay of execution, 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 Notwithstanding any other provision
of this code to the contrary, for residents of this state, the
municipal court shall wait at least ninety thirty days from the
date that all costs, fines, forfeitures or penalties are due in
full before notifying the Division of Motor Vehicles. thereof:
Provided, however, 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 further, Provided, That the failure of the judge
to provide notice does not affect the validity of any a suspension
of the person's license or privilege to operate a motor vehicle in this state. For purposes of this section, payment shall be is
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 of the failure to
appear Provided, That notwithstanding any other provision of this
code to the contrary, for residents of this state, the municipal
court clerk shall wait at least ninety days from the date of the
person's failure to appear or otherwise respond before notifying
the Division of Motor Vehicles thereof. no sooner than thirty days
after but before ninety days after the scheduled date to appear
unless the person sooner appears or otherwise responds in court to
the satisfaction of the court. 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. final judgment in the case and, if a
judgment of guilty, until all costs, fines, forfeitures or
penalties imposed are paid in full.
(d) On and after July 1, 2008, if the licensee fails to
respond to the Division of Motor Vehicles order of suspension
within ninety days of receipt of the certified letter, If the
costs, fines, forfeitures or penalties imposed remain unpaid one
year after a judgment has been entered or one year after an
individual has failed to respond to a citation without subsequently
appearing, 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 $25 Provided,
however, That unless the Tax Commissioner may change changes this
maximum amount limitation for this fee for fiscal years beginning
on or after July 1, 2008, 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 may 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 law enforcement professional standards
subcommittee 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 to the
Community Corrections Fund; and (5) the final four percent shall be
paid to the Governor's subcommittee on law-enforcement training.
to the Governor's law enforcement professional standards
subcommittee. 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 July 1 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 July 1, 2008. Rules shall be
promulgated in accordance with the provisions of article three,
chapter twenty-nine-a of this code.
(f) On or before July 1, 2005, 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 and was convicted or failed
to appear on or after January 1, 1993. If the original notification cannot be located, the Division of Motor Vehicles
shall accept an additional or duplicate notice from the municipal
court clerk.
ARTICLE 11. POWERS AND DUTIES WITH RESPECT TO ORDINANCES AND
ORDINANCE PROCEDURES.
§8-11-1. Ordinances to make municipal powers effective; penalties
imposed under judgment of mayor or police court or
municipal judge; right to injunctive relief; right to
maintain action to collect fines; additional assessment
of costs.
(a) To carry into effect the powers and authority conferred
upon any a municipality or its governing body by the provisions of
this chapter, or any past or future act of the Legislature of this
state, the governing body has plenary power and authority to:
(1) Make and pass all needful ordinances, orders, bylaws,
acts, resolutions, rules and regulations not contrary to the
Constitution and laws of this state; and
(2) Prescribe reasonable penalties for violation of its
ordinances, orders, bylaws, acts, resolutions, rules and
regulations in the form of fines, forfeitures and confinement in
the county or regional jail or the place of confinement in the
municipality, if there is one, for a term not exceeding thirty
days.
(b) The fines, forfeitures and confinement shall be recovered, imposed or enforced under the judgment of the mayor of the
municipality or the individual lawfully exercising the mayor's
functions, or the police court judge or municipal court judge of a
city, if there is one, and may be suspended upon reasonable
conditions as may be imposed by the mayor, other authorized
individual or judge.
(c) Any A municipality may also maintain a civil action in the
name of the municipality in the circuit court of the county in
which the municipality or the major portion of the territory of the
municipality is located to obtain an injunction to compel
compliance with, or to enjoin a violation or threatened violation
of, any an ordinance of the municipality. and The circuit court has
jurisdiction to grant the relief sought. A certified transcript of
a judgment for a fine rendered by a municipal court may be filed in
the office of the clerk of a circuit court and docketed in the
judgment lien book kept in the office of the clerk of the county
commission in the same manner and with the same effect as the
filing and docketing of a certified transcript of judgment rendered
by a magistrate court as provided for in section two, article six,
chapter fifty of this code. The judgment shall include costs
assessed against the defendant.
(d) In addition to any other costs which may be lawfully
imposed, an additional cost shall be imposed in an amount of not
less than $42 for a traffic offense constituting a moving violation, any offense regardless of whether the penalty for the
violation provides for a period of incarceration. and for any other
offense for which the ordinance prescribing the offense provides
for a period of incarceration. Of the $42 imposed as an additional
cost, $2 are administrative costs to be retained by the
municipality and $40 shall be paid into the Regional Jail and
Correctional Facility development Authority Fund in the State
Treasury in accordance with section one-a of this article.
(e) Execution shall be by fieri facias issued by the clerk of
the circuit court in the same manner as writs are issued on
judgments for a fine rendered by circuit courts or other courts of
record under the provisions of section eleven, article four,
chapter sixty-two of this code.
§8-11-1a. Disposition of criminal costs into State Treasury
account for Regional Jail and Correctional Facility
Authority Fund.
The clerk of each municipal court or other person designated
to receive fines and costs shall, at the end of each month, pay
into the Regional Jail and Correctional Facility Authority Fund in
the State Treasury an amount equal to $40 of the costs collected in
each proceeding involving a traffic offense constituting a moving
violation regardless of whether the penalty for the violation
provides for a period of incarceration. or any other offense for
which the ordinance prescribing the offense provides for a period of incarceration: Provided, That In a case where a defendant has
failed to pay all costs assessed against him or her, no payment may
be made to the Regional Jail and Correctional Facility Authority
Fund until the defendant has paid all costs which, when paid, are
available for the use and benefit of the municipality.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment by credit card or payment plan; suspension of
licenses for failure to make payments or appear or
respond; restitution; liens.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, fees, forfeitures, restitution or penalties in
accordance with rules promulgated by the Supreme Court of Appeals.
Any Charges made by the credit company shall be paid by the person
responsible for paying the cost, fine, forfeiture or penalty.
(b) Unless otherwise required by law, a magistrate court may
collect a portion of any costs, fines, fees, forfeitures,
restitution or penalties at the time the amount is imposed by the
court so long as the court requires the balance to be paid in
accordance with a payment plan which specifies: (1) The number of
payments to be made; (2) the dates on which the payments are due;
and (3) the amounts due for each payment. The written agreement
represents the minimum payments and the last date those payments
may be made. The obligor or the obligor's agent may accelerate the payment schedule at any time by paying any an additional portion of
any the costs, fines, fees, forfeitures, restitution or penalties.
(c) (1) If any the costs, fines, fees, forfeitures,
restitution or penalties imposed by the magistrate court in a
criminal case are not paid within one hundred eighty days from the
date of judgment and the expiration of any stay of execution, the
magistrate court clerk or, upon judgment rendered on appeal, the
circuit clerk shall notify the Commissioner of the Division of
Motor Vehicles of the failure to pay: Provided, That in a criminal
case in which a nonresident of this state is convicted of a motor
vehicle violation defined in section three-a, article three,
chapter seventeen-b of this code, the appropriate clerk shall
notify the Division of Motor Vehicles of the failure to pay within
eighty ninety days from the date of judgment and expiration of any
stay of execution. Upon notice, the Division of Motor Vehicles
shall suspend any privilege the person defaulting on payment may
have to operate a motor vehicle in this state, including any
driver's license issued to the person by the Division of Motor
Vehicles, until all costs, fines, fees, forfeitures, restitution or
penalties are paid in full. The suspension shall be imposed in
accordance with the provisions of section six, article three,
chapter seventeen-b of this code. Provided, That any A person who
has had his or her license to operate a motor vehicle in this state
suspended pursuant to this subsection and his or her failure to pay is based upon inability to pay, may, if he or she is employed on a
full- or part-time basis, petition to the circuit court for an
order authorizing him or her to operate a motor vehicle solely for
employment purposes. Upon a showing satisfactory to the court of
inability to pay, employment and compliance with other applicable
motor vehicle laws, the court shall issue an order granting relief.
(2) In addition to the provisions of subdivision (1) of this
subsection, if any costs, fines, fees, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for a hunting
violation described in chapter twenty of this code are not paid
within one hundred eighty days from the date of judgment and the
expiration of any stay of execution, the magistrate court clerk or,
upon a judgment rendered on appeal, the circuit clerk shall notify
the Director of the Division of Natural Resources of the failure to
pay. Upon notice, the Director of the Division of Natural
Resources shall suspend any privilege the person failing to appear
or otherwise respond may have to hunt in this state, including any
hunting license issued to the person by the Division of Natural
Resources, until all the costs, fines, fees, forfeitures,
restitution or penalties are paid in full.
(3) In addition to the provisions of subdivision (1) of this
subsection, if any costs, fines, fees, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for a fishing
violation described in chapter twenty of this code are not paid within one hundred eighty days from the date of judgment and the
expiration of any stay of execution, the magistrate court clerk or,
upon a judgment rendered on appeal, the circuit clerk shall notify
the Director of the Division of Natural Resources of the failure to
pay. Upon notice, the Director of the Division of Natural
Resources shall suspend any privilege the person failing to appear
or otherwise respond may have to fish in this state, including any
fishing license issued to the person by the Division of Natural
Resources, until all the costs, fines, fees, forfeitures,
restitution or penalties are paid in full.
(d) (1) If a person charged with any a criminal violation of
this code fails to appear or otherwise respond in court, the
magistrate court shall notify the Commissioner of the Division of
Motor Vehicles thereof within ninety days of the scheduled date to
appear unless the person sooner appears or otherwise responds in
court to the satisfaction of the magistrate. Upon notice, the
Division of Motor Vehicles shall suspend any privilege the person
failing to appear or otherwise respond may have to operate a motor
vehicle in this state, including any driver's license issued to the
person by the Division of Motor Vehicles, until final judgment in
the case and, if a judgment of guilty, until all costs, fines,
fees, forfeitures, restitution or penalties imposed are paid in
full. The suspension shall be imposed in accordance with the
provisions of section six, article three, chapter seventeen-b of this code.
(2) In addition to the provisions of subdivision (1) of this
subsection, if a person charged with any a hunting violation
described in chapter twenty of this code fails to appear or
otherwise respond in court, the magistrate court shall notify the
Director of the Division of Natural Resources of the failure
thereof within fifteen days of the scheduled date to appear unless
the person sooner appears or otherwise responds in court to the
satisfaction of the magistrate. Upon notice, the Director of the
Division of Natural Resources shall suspend any privilege the
person failing to appear or otherwise respond may have to hunt in
this state, including any hunting license issued to the person by
the Division of Natural Resources, until final judgment in the case
and, if a judgment of guilty, until all costs, fines, fees,
forfeitures, restitution or penalties imposed are paid in full.
(3) In addition to the provisions of subdivision (1) of this
subsection, if a person charged with any a fishing violation
described in chapter twenty of this code fails to appear or
otherwise respond in court, the magistrate court shall notify the
Director of the Division of Natural Resources of the failure
thereof within fifteen days of the scheduled date to appear unless
the person sooner appears or otherwise responds in court to the
satisfaction of the magistrate. Upon notice, the Director of the
Division of Natural Resources shall suspend any privilege the person failing to appear or otherwise respond may have to fish in
this state, including any fishing license issued to the person by
the Division of Natural Resources, until final judgment in the case
and, if a judgment of guilty, until all costs, fines, fees,
forfeitures, restitution or penalties imposed are paid in full.
(e) In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution where appropriate
when rendering judgment.
(f) (1) If all costs, fines, fees, forfeitures, restitution or
penalties imposed by a magistrate court and ordered to be paid are
not paid within one hundred eighty days from the date of judgment
and the expiration of any stay of execution, the clerk of the
magistrate court shall notify the prosecuting attorney of the
county of nonpayment and provide the prosecuting attorney with an
abstract of judgment. The prosecuting attorney shall file the
abstract of judgment in the office of the clerk of the county
commission in the county where the defendant was convicted and in
any county wherein the defendant resides or owns property. The
clerks of the county commissions shall record and index the
abstracts of judgment without charge or fee to the prosecuting
attorney and when so recorded, the amount stated to be owing in the
abstract shall constitute constitutes a lien against all property
of the defendant.
(2) When all the costs, fines, fees, forfeitures, restitution or penalties described in subdivision (1) of this subsection for
which an abstract of judgment has been recorded are paid in full,
the clerk of the magistrate court shall notify the prosecuting
attorney of the county of payment and provide the prosecuting
attorney with a release of judgment, prepared in accordance with
the provisions of section one, article twelve, chapter thirty-eight
of this code, for filing and recordation pursuant to the provisions
of this subdivision. Upon receipt from the clerk, the prosecuting
attorney shall file the release of judgment in the office of the
clerk of the county commission in each county where an abstract of
the judgment was recorded. The clerks of the county commissions
shall record and index the release of judgment without charge or
fee to the prosecuting attorney.
(g) Notwithstanding any provision of this code to the
contrary, except as authorized by this section, payments of all
costs, fines, fees, forfeitures, restitution or penalties imposed
by the magistrate court in civil or criminal matters shall be made
in full. Partial payments of costs, fines, fees, forfeitures,
restitution or penalties made pursuant to this section shall be
credited to amounts due in the following order:
(1) Regional Jail Fund;
(2) Worthless Check Payee;
(3) Restitution;
(4) Magistrate Court Fund;
(5) Worthless Check Fund;
(6) Per Diem Regional Jail Fee;
(7) Community Corrections Fund;
(8) Regional Jail Operational Fund;
(9) Law Enforcement Training Fund;
(10) Crime Victims Compensation Fund;
(11) Court Security Fund;
(12) Courthouse Improvement Fund;
(13) Litter Control Fund;
(14) Sheriff arrest fee;
(15) Teen Court Fund;
(16) Other costs, if any; and
(17) Fine.
NOTE: The purpose of this bill is to provide additional
revenue to the regional jails, make certain court costs are
consistent and reduce certain waiting times regarding collection of
fees.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.