H. B. 2664
(By Delegate Shook)
[Introduced January 13, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended,
by
adding thereto a new section, designated §17C-5-1a
; to amend
and reenact §17C-5-2; to amend and reenact §17C-5A-2 and
§17C-5A-3a
of said code; to amend and reenact §61-11-22 of
said code; to amend and reenact §62-11A-1a of said code; and
to amend and reenact §62-11C-1 and
§62-11C-5
of said code, all
relating to reducing recidivism of offenders convicted of
driving under the influence of alcohol through mandated
participation in the Motor Vehicle Alcohol Test and Lock
Program for all offenders; through mandated license sanctions;
through removal of expungement provisions for offenders under
twenty-one years of age; through the imposition of staggered
sentencing; through offender participation in community
corrections programs; through mandated guilty or nolo
contendere plea in pretrial diversion agreements; and through
oversight of dedicated drug and alcohol courts.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §17C-5-1a
; that
§17C-5-2 of said code be amended and reenacted; that §17C-5A-2 and
§17C-5A-3a
of said code be amended and reenacted; that §61-11-22 of
said code be amended and reenacted; that §62-11A-1a of said code be
amended and reenacted; that §62-11C-1 and §62-11C-5 of said code be
amended and reenacted, all
to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-1a. The Evans-Perry Act to Reduce DUI Recidivism.
This bill shall be known as the Evans-Perry Act to Reduce DUI
Recidivism, in honor of the members of two families who were killed
by a repeat drunk driver in Monongalia County, West Virginia, in
July of 2007.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) 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; and
(3) 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, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
years nor more than ten years and shall be fined not less than
$1,000 nor more than $3,000.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) 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, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than ninety days nor more than one year and shall be
fined not less than $500 nor more than $1,000.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) 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, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
day nor more than one year, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than $200 nor more than $1,000.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for up to six months and shall be fined
not less than $100 nor more than $500. A person sentenced pursuant
to this subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than six months, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than $200 nor more than $1,000.
A person sentenced pursuant to this subdivision shall receive
credit for any period of actual confinement he or she served upon
arrest for the subject offense.
(f) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, which jail term is to include actual confinement of not
less than twenty-four hours, and shall be fined not less than $100
nor more than $500. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than $100 nor more than $500.
(h) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than six months and shall be fined not less than
$100 nor more than $500.
(i) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has an alcohol concentration
in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
for a first offense under this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $25 nor more than $100. For a second or subsequent offense
under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for twenty-four
hours and shall be fined not less than $100 nor more than $500. A
person who is charged with a first offense under the provisions of
this subsection may move for a continuance of the proceedings, from
time to time, to allow the person to participate in the Motor
Vehicle Alcohol Test and Lock Program as provided in section
three-a, article five-a of this chapter.
Upon successful
completion of the program, the court shall dismiss the charge
against the person and expunge the person's record as it relates to
the alleged offense. In the event the person fails to successfully
complete the program, the court shall proceed to an adjudication of
the alleged offense. A motion for a continuance under this
subsection may not be construed as an admission or be used as
evidence.
A person arrested and charged with an offense under the
provisions of this subsection or subsection (a), (b), (c), (d),
(e), (f), (g) or (h) of this section may not also be charged with
an offense under this subsection arising out of the same
transaction or occurrence.
(j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person 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 is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than twelve months, which jail
term is to include actual confinement of not less than forty-eight
hours and shall be fined not less than $200 nor more than $1,000.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for not less than six months nor
more than one year and the court may, in its discretion, impose a
fine of not less than $1,000 nor more than $3,000.
(l) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years and the court may, in its discretion, impose a fine of not
less than $3,000 nor more than $5,000.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f), (g) or (h) of
this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (g) or (h)
of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f), (g) or (h) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(q) The sentences provided in this section upon conviction for
a violation of this article are mandatory and are not subject to
suspension or probation:
Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section.
Pursuant to the provisions of
article two, section five of this article, the court may apply the
provisions of article one-a, section eleven-a, chapter sixty-two of
this code to a person in violation of an offense under this
section.
An order for home detention by the court pursuant to the
provisions of article eleven-b, of said chapter sixty-two of this
code may be used as an alternative sentence to any period of
incarceration required by this section for a first or subsequent
offense: Provided, however, That for any period of home
incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no
fewer than five days of the total period of home confinement
ordered and the offender may not leave home for those five days
notwithstanding the provisions of section five, article eleven-b,
chapter sixty-two of this code: Provided further, That for any period of home incarceration ordered for a person convicted of a
third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
(r) Notwithstanding any other provision of this section, when
a person is convicted of an offense under this section, the court
may impose staggered sentencing pursuant to section one-a, article
eleven-a, chapter sixty-two of this code. Prior to sentencing, the
court may, on its own motion or on motion of the county prosecutor
to sentence a person without regard to the mandatory minimum
sentence, sentence a person convicted of an offense under this
section to a staggered sentence: Provided, That the court makes
the findings of fact pursuant to section one-a, article eleven-a,
chapter sixty-two and enters such findings in the court's
sentencing order. If the court imposes a staggered sentence for a
second offense of any provision of subsection (b), (c), (d), (e),
(f), (g) or (i) of this section, the court shall impose a sentence
which includes equal segments of confinement of not less than sixty
days each, the first segment to be served immediately following
sentencing and the subsequent segments subject to the staggered
sentencing provisions of section one-a, article eleven-a, chapter
sixty-two of this code. If the court imposes a staggered sentence
for a third or subsequent offense any provision of subsection (b),
(c), (d), (e), (f), (g) or (i) of this section, the court shall impose a sentence which includes equal segments of confinement of
not less than one hundred twenty days each, the first segment to be
served immediately following sentencing and the subsequent segments
subject to the staggered sentencing provisions of
section one-a,
article eleven-a, chapter sixty-two
of this code. If the court
imposes a staggered sentence for an offense of subsection (a) of
this section, the court shall impose a sentence which includes
equal segments of confinement of not less than two years each, the
first segment to be served immediately following sentencing and the
subsequent segments subject to the staggered sentencing provisions
of
section one-a, article eleven-a, chapter sixty-two
of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
under the provisions of section one of this article or section
seven, article five of this chapter, the Commissioner of the
Division of Motor Vehicles shall stay the imposition of the period
of revocation or suspension and afford the person an opportunity to
be heard. The written request must be filed with the commissioner
in person or by registered or certified mail, return receipt
requested, within thirty calendar days after receipt of a copy of
the order of revocation or suspension or no hearing will be granted. The hearing shall be before the commissioner or a hearing
examiner retained by the commissioner who shall rule on evidentiary
issues and submit proposed findings of fact and conclusions of law
for the consideration of the commissioner and all of the pertinent
provisions of article five, chapter twenty-nine-a of this code
shall apply. The commissioner may reject or modify the hearing
examiner's proposed findings of fact and conclusions of law, in
writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division
located in or near the county in which the arrest was made in this
state or at some other suitable place in the county in which the
arrest was made if an office of the division is not available.
(c) Any hearing shall be held within one hundred eighty days
after the date upon which the commissioner received the timely
written request for a hearing unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing
on the commissioner's own motion or upon application for each
person for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any hearing on the commissioner's
own motion or for the benefit of any law-enforcement officer or any person requesting the hearing and the policies shall be enforced
and applied to all parties equally. For the purpose of conducting
the hearing, the commissioner may issue subpoenas and subpoenas
duces tecum in accordance with the provisions of section one,
article five, chapter twenty-nine-a of this code: Provided, That
the notice of hearing to the appropriate law-enforcement officers
by registered or certified mail, return receipt requested,
constitutes a subpoena to appear at the hearing without the
necessity of payment of fees by the Division of Motor Vehicles.
(d) Any investigating officer who submits a statement pursuant
to section one of this article that results in a hearing pursuant
to this section shall not attend the hearing on the subject of that
affidavit unless requested to do so by the party whose license is
at issue in that hearing or by the commissioner. The hearing
request form shall clearly and concisely inform a person seeking a
hearing of the fact that the investigating officer will only attend
the hearing if requested to do so and provide for a box to be
checked requesting the investigating officer's attendance. The
language shall appear prominently on the hearing request form. The
Division of Motor Vehicles is solely responsible for causing the
attendance of the investigating officers. Law-enforcement officers
shall be compensated for the time expended in their travel and
appearance before the commissioner by the law-enforcement agency by
whom which they are employed at their regular rate if they are
scheduled to be on duty during said time or at their regular
overtime rate if they are scheduled to be off duty during said time. If the party whose license is at issue does not request the
investigating officer to attend the hearing, the commissioner shall
consider the written statement, test results and any other
information submitted by the investigating officer pursuant to
section one of this article in that officer's absence.
(e) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or did
refuse to submit to the designated secondary chemical test, or did
drive 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 eight hundredths of
one percent, by weight.
The commissioner may propose a legislative rule in compliance
with the provisions of article three, chapter twenty-nine-a of this
code which may provide that if a person accused of driving a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or accused of driving a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or accused of 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 eight hundredths of one percent,
by weight, intends to challenge the results of any secondary chemical test of blood, breath or urine under section seven,
article five of this chapter or intends to cross-examine the
individual or individuals who administered the test or performed
the chemical analysis, the person shall, within an appropriate
period of time prior to the hearing, notify the commissioner in
writing of his or her intention. The rule may provide that when
there is a failure to comply with the notice requirement, the
results of the secondary test, if any, shall be admissible as
though the person and the commissioner had stipulated the
admissibility of the evidence. Any rule shall provide that the
rule shall not be invoked in the case of a person who is not
represented by counsel unless the communication from the
commissioner to the person establishing a time and place for the
hearing also informed the person of the consequences of the
person's failure to timely notify the commissioner of the person's
intention to challenge the results of the secondary chemical test
or cross-examine the individual or individuals who administered the
test or performed the chemical analysis.
(f) In the case of a hearing in which a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or accused
of 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 eight hundredths of one percent, by weight, the commissioner shall make specific
findings as to: (1) Whether the investigating law-enforcement
officer had reasonable grounds to believe the person to have been
driving while under the influence of alcohol, controlled substances
or drugs, or while having an alcohol concentration in the person's
blood of eight hundredths of one percent or more, by weight, or to
have been 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 eight
hundredths of one percent, by weight; (2) whether the person
committed an offense involving driving under the influence of
alcohol, controlled substances or drugs, or was lawfully taken into
custody for the purpose of administering a secondary test; and (3)
whether the tests, if any, were administered in accordance with the
provisions of this article and article five of this chapter.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or did drive 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 eight hundredths of one percent, by weight,
the commissioner also finds by a preponderance of the evidence that
the person when driving did an act forbidden by law or failed to
perform a duty imposed by law, which act or failure proximately caused the death of a person and was committed in reckless
disregard of the safety of others and if the commissioner further
finds that the influence of alcohol, controlled substances or drugs
or the alcohol concentration in the blood was a contributing cause
to the death, the commissioner shall revoke the person's license
for a period of ten years: Provided, That if the commissioner has
previously suspended or revoked the person's license under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(h) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when driving did an
act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person, the
commissioner shall revoke the person's license for a period of five
years: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this
section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when driving did an
act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused bodily injury to a person
other than himself or herself, the commissioner shall revoke the
person's license for a period of two years: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(j) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight hundredths of one percent or more, by
weight, but less than fifteen hundredths of one percent or more, by
weight, or finds that the person knowingly permitted the person's
vehicle to be driven by another person who was under the influence
of alcohol, controlled substances or drugs, or knowingly permitted the person's vehicle to be driven by another person who had an
alcohol concentration in his or her blood of eight hundredths of
one percent or more, by weight the commissioner shall revoke the
person's license for a period of six months or a period of fifteen
days with an additional one hundred and twenty twenty-five days of
mandatory participation in the Motor Vehicle Alcohol Test and Lock
Program in accordance with the provisions of section three-a of
this article: Provided, That a person whose license is revoked for
driving while under the influence of drugs is not eligible to
participate in the Motor Vehicle Alcohol Test and Lock Program:
Provided, however, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years: Provided further, That if the commissioner has
previously suspended or revoked the person's license more than once
under the provisions of this section or section one of this article
within the ten years immediately preceding the date of arrest, the
period of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the
commissioner also finds by a preponderance of the evidence that the
person did drive a motor vehicle while having an alcohol
concentration in the person's blood of fifteen hundredths of one
percent or more, by weight, the commissioner shall revoke the person's license for a period of forty-five days with an additional
two hundred and seventy days of mandatory participation in the
Motor Vehicle Alcohol Test and Lock Program in accordance with the
provisions of article three-a, article five-a, chapter seventeen-c
of this code: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years: Provided, however, That if the commissioner
has previously suspended or revoked the person's license more than
once under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the
alcohol test and lock device may be installed or is otherwise
incapable of participating in the Motor Vehicle Alcohol Test and
Lock Program, the period of revocation shall be one hundred eighty
is three hundred twenty days: Provided, That if the commissioner
has previously suspended or revoked the person's license under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be ten years: Provided, however, That if the
commissioner has previously suspended or revoked the person's license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(l) If, in addition to a finding that the person did drive 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 eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when driving did an act forbidden
by law or failed to perform a duty imposed by law, which act or
failure proximately caused the death of a person, and if the
commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the death, the commissioner shall
revoke the person's license for a period of five years: Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be for the life of
the person.
(m) If, in addition to a finding that the person did drive 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 eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when driving did an act forbidden by law or failed to perform a duty imposed by law, which act or
failure proximately caused bodily injury to a person other than
himself or herself, and if the commissioner further finds that the
alcohol concentration in the blood was a contributing cause to the
bodily injury, the commissioner shall revoke the person's license
for a period of two years: Provided, That if the commissioner has
previously suspended or revoked the person's license under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be ten years: Provided, however, That if the
commissioner has previously suspended or revoked the person's
license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(n) If the commissioner finds by a preponderance of the
evidence that the person did drive 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 eight hundredths of one percent, by weight, the commissioner
shall suspend the person's license for a period of sixty ninety
days: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this
section or section one of this article, the period of revocation
shall be for one year, or until the person's twenty-first birthday,
whichever period is longer.
(o) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the commissioner also finds by a
preponderance of the evidence that the person when driving did have
on or within the motor vehicle another person who has not reached
his or her sixteenth birthday, the commissioner shall revoke the
person's license for a period of one year: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(p) For purposes of this section, where reference is made to
previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two, article five
of this chapter for conduct which occurred within the ten years
immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven,
article five of this chapter for conduct which occurred within the
ten years immediately preceding the date of arrest.
(q) In the case of a hearing in which a person is accused of
refusing to submit to a designated secondary test, the commissioner
shall make specific findings as to: (1) Whether the arresting
law-enforcement officer had reasonable grounds to believe the
person had been driving a motor vehicle in this state while under
the influence of alcohol, controlled substances or drugs; (2)
whether the person committed an offense relating to driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (3) whether the person refused to
submit to the secondary test finally designated in the manner
provided in section four, article five of this chapter; and (4)
whether the person had been given a written statement advising the
person that the person's license to operate a motor vehicle in this
state would be revoked for at least forty-five days and up to life
if the person refused to submit to the test finally designated in
the manner provided in said section.
(r) If the commissioner finds by a preponderance of the evidence that: (1) The investigating officer had reasonable
grounds to believe the person had been driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs; (2) the person committed an offense relating
to driving a motor vehicle in this state while under the influence
of alcohol, controlled substances or drugs; (3) the person refused
to submit to the secondary chemical test finally designated; and
(4) the person had been given a written statement advising the
person that the person's license to operate a motor vehicle in this
state would be revoked for a period of at least forty-five days and
up to life if the person refused to submit to the test finally
designated, the commissioner shall revoke the person's license to
operate a motor vehicle in this state for the periods specified in
section seven, article five of this chapter. The revocation period
prescribed in this subsection shall run concurrently with any other
revocation period ordered under this section or section one of this
article arising out of the same occurrence.
(s) If the commissioner finds to the contrary with respect to
the above issues the commissioner shall rescind his or her earlier
order of revocation or shall reduce the order of revocation to the
appropriate period of revocation under this section or section
seven, article five of this chapter. A copy of the commissioner's
order made and entered following the hearing shall be served upon
the person by registered or certified mail, return receipt
requested. During the pendency of any hearing, the revocation of
the person's license to operate a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation, the
person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay
enforcement of the order. The court may grant a stay or supersede
as of the order only upon motion and hearing, and a finding by the
court upon the evidence presented, that there is a substantial
probability that the appellant shall prevail upon the merits and
the appellant will suffer irreparable harm if the order is not
stayed: Provided, That in no event shall the stay or supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the file or the transcript of the hearing to the circuit court in
less than sixty days.
(t) In any revocation or suspension pursuant to this section,
if the driver whose license is revoked or suspended had not reached
the driver's eighteenth birthday at the time of the conduct for
which the license is revoked or suspended, the driver's license
shall be revoked or suspended until the driver's eighteenth
birthday or the applicable statutory period of revocation or
suspension prescribed by this section, whichever is longer.
(u) Funds for this section's hearing and appeal process may be
provided from the Drunk Driving Prevention Fund, as created by
section forty-one, article two, chapter fifteen of this code, upon application for the funds to the Commission on Drunk Driving
Prevention.
§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 article five of this chapter or have been convicted
under section two, article five of this chapter.
(2) The program shall include the establishment of a users 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 the first day of July, two thousand
seven, any unexpended balance remaining in the Driver's
Rehabilitation Fund shall be transferred to the Motor Vehicle Fees
Fund created under the provisions of section twenty-one, article
two, chapter seventeen-a of this code and all further fees
collected shall be deposited in that fund.
(3) 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. 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.
(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 commissioner shall establish by legislative rule,
proposed pursuant to article three, chapter twenty-nine-a of this
code, criteria to determine the eligibility for the payment of the
installation of ignition interlock devices motor vehicle alcohol
test and lock system in the vehicles of indigent offenders. The
rule shall include, but is not limited to, the development of a
criteria for determining eligibility; 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 article five of this
chapter is eligible to and must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and 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 anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and 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
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (n), 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 eight hundredths
of one percent, by weight, is eligible to and must 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 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 comply with the following conditions:
(A) If not already enrolled, the person shall enroll in and
complete the educational program provided in subsection (d),
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 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.
(4) Notwithstanding provisions of this section to the contrary, a person who is otherwise eligible for participation in
the Motor Vehicle Alcohol Test and Lock Program who proves by clear
and convincing evidence that he or she does not own a motor vehicle
upon which the alcohol test and lock device may be installed or is
otherwise incapable of participating in the Motor Vehicle Alcohol
Test and Lock Program, shall be considered ineligible for
participation in the Motor Vehicle Alcohol Test and Lock Program
and the person's license shall be revoked pursuant to section two-a
of this article.
(c) 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 of mandatory installation of a motor vehicle
alcohol test and lock system 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 (g), section two, article five of this chapter or pursuant
to subsection (j), section two of this article, the minimum period
of revocation for participation in the test and lock program is
fifteen days and the minimum period for the use of the ignition
interlock device of mandatory installation of a motor vehicle
alcohol test and lock system is one hundred and twenty-five days.
During the first ninety days after license revocation, a first time
offender may drive only for the purposes of getting to and from
employment, school, or an alcohol treatment program;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
the minimum period of revocation for participation in the test and
lock program is forty-five days and the minimum period for the use
of the ignition interlock device of mandatory installation of a
motor vehicle alcohol test and lock system is one year. During the
first ninety days after license revocation, a first time offender
may drive only for the purposes of getting to and from employment,
school, or an alcohol treatment program;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of
an offense defined in subsection (e), section two, article five of
this chapter or pursuant to subsection (j), section two of this
article, the minimum period of revocation for participation in the
test and lock program is forty-five days and the minimum period for
the use of the ignition interlock device of mandatory installation
of a motor vehicle alcohol test and lock system is two hundred
seventy days. During the first ninety days after license
revocation, a first time offender may drive only for the purposes
of getting to and from employment, school, or an alcohol treatment
program;
(4) 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 (a), section
two, article five of this chapter or pursuant to subsection (f),
section two of this article, the minimum period of revocation before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device of mandatory installation of a motor
vehicle alcohol test and lock system is two years. During the
first ninety days after license revocation, a first time offender
may drive only for the purposes of getting to and from employment,
school, or an alcohol treatment program;
(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 (b), section
two, article five of this chapter or pursuant to subsection (g),
section two of this article, the minimum period of revocation is
six months and the minimum period for the use of the ignition
interlock device of mandatory installation of a motor vehicle
alcohol test and lock system is two years. During the first ninety
days after license revocation, a first time offender may drive only
for the purposes of getting to and from employment, school, or an
alcohol treatment program;
(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 (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 of mandatory
installation of a motor vehicle alcohol test and lock system is one year. During the first ninety days after license revocation, a
first time offender may drive only for the purposes of getting to
and from employment, school, or an alcohol treatment program;
(7) 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 (j), 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 of mandatory
installation of a motor vehicle alcohol test and lock system is ten
months. During the first ninety days after license revocation, a
first time offender may drive only for the purposes of getting to
and from employment, school, or an alcohol treatment program;
(d) Notwithstanding any provision of the this code to the
contrary, a person shall participate in the program Motor Vehicle
Alcohol Test and Lock 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 his or her 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 of mandatory
installation of a motor vehicle alcohol test and lock system is two years, except that the minimum revocation period for a person
required to participate because of a violation of subsection (n),
section two of this article or subsection (i), section two, article
five of this chapter is two months and the minimum period of
participation of mandatory installation of a motor vehicle alcohol
test and lock system is one year. An offender who was previously
convicted under section two, article five of this chapter or whose
license was previously revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or his or her license was revoked under
any provision cited in this subsection within the past ten years,
during the first year after license revocation, the offender may
drive only for the purposes of getting to and from employment,
school, or an alcohol treatment program. The division shall add an
additional two months to the minimum period for the use of the
ignition interlock device of mandatory installation of a motor
vehicle alcohol test and lock system 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 of mandatory installation of a motor
vehicle alcohol test and lock system 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 of mandatory installation of a motor vehicle alcohol test
and lock system 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 of mandatory installation of a motor vehicle
alcohol test and lock system for each additional previous
conviction or revocation within the past ten years. Any person
required to participate under this subsection section must have an
ignition interlock device installed on every vehicle he or she owns
or operates.
(e) 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.
(f) An applicant for the test and lock program 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 six-month
period preceding the date of application for admission to the test
and lock program unless such is necessary for employment purposes.
(g) 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 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.
(h) 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.
(i) A person whose license has been suspended pursuant to the
provisions of subsection (n), section two of this article 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.
(j) 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
mandatory period of 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug
and
alcohol court programs.
(a) A prosecuting attorney of any county of this state or a
person acting as a special prosecutor may enter into a pretrial
diversion agreement with a person under investigation or charged
with an offense against the State of West Virginia, when he or she
considers it to be in the interests of justice. The agreement is
to be in writing and is to be executed in the presence of the person's attorney, unless the person has executed a waiver of
counsel.
(b) Any agreement entered into pursuant to the provisions of
subsection (a) of this section may not exceed twenty-four months in
duration. The duration of the agreement must be specified in the
agreement. The terms of any agreement entered into pursuant to the
provisions of this section may include conditions similar to those
set forth in section nine, article twelve, chapter sixty-two of
this code relating to conditions of probation. The agreement may
require supervision by a probation officer of the circuit court,
with the consent of the court. An agreement entered into pursuant
to this section must include a provision that the applicable
statute of limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial
diversion with a prosecuting attorney and who has successfully
complied with the terms of the agreement is not subject to
prosecution for the offense or offenses described in the agreement
or for the underlying conduct or transaction constituting the
offense or offenses described in the agreement, unless the
agreement includes a provision that upon compliance the person
agrees to plead guilty or nolo contendere to a specific related
offense, with or without a specific sentencing recommendation by
the prosecuting attorney.
Any pretrial diversion agreement entered
into by a person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code must
contain a provision that the person agrees to plead guilty or nolo contendere to the underlying offense or offenses described in the
agreement.
(d) No person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code may
participate in a pretrial diversion program,
unless the program is
party of a community corrections program approved pursuant to the
provisions of section one, article eleven-c of this chapter. No
person charged with a violation of the provisions of section
twenty-eight, article two of this chapter may participate in a
pretrial diversion program unless the program is part of a
community corrections program approved pursuant to the provisions
of article eleven-c, chapter sixty-two of this code. No person
indicted for a felony crime of violence against the person where
the alleged victim is a family or household member as defined in
section two hundred three, article twenty-seven, chapter
forty-eight of this code or indicted for a violation of the
provisions of sections three, four or seven, article eight-b of
this chapter is eligible to participate in a pretrial diversion
program. No defendant charged with a violation of the provisions
of section twenty-eight, article two of this chapter or subsections
(b) or (c), section nine, article two of this chapter where the
alleged victim is a family or household member is eligible for
pretrial diversion programs if he or she has a prior conviction for
the offense charged or if he or she has previously been granted a
period of pretrial diversion pursuant to this section for the
offense charged. Notwithstanding any provision of this code to the contrary, defendants charged with violations of the provisions of
section twenty-eight, article two, chapter sixty-one of this code
or the provisions of subsection (b) or (c), section nine, article
two of said chapter where the alleged victim is a family or
household member as defined by the provisions of section two
hundred three, article twenty seven, chapter forty-eight of this
code are ineligible for participation in a pretrial diversion
program before July 1, 2002, and before the community corrections
subcommittee of the Governor's Committee on Crime, Delinquency and
Correction established pursuant to the provisions of section two,
article eleven-c, chapter sixty-two of this code, in consultation
with the working group of the subcommittee, has approved guidelines
for a safe and effective program for diverting defendants charged
with domestic violence.
(e) The provisions of section twenty-five of this article are
inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of
section twenty-eight, article two, chapter sixty-one of this code.
The community corrections subcommittee of the Governor's Committee
on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code shall, upon approving any program of pretrial diversion
for persons charged with violations of the provisions of section
twenty-eight, article two, chapter sixty-one of this code,
establish and maintain a central registry of the participants in
the programs which may be accessed by judicial officers and court personnel.
(f) (1) The chief judge of a circuit court in cooperation with
the prosecuting attorneys, the public defenders, if any, in the
circuit, and the community criminal justice board if the program is
to be operated pursuant to the provisions of article eleven-c,
chapter sixty-two of this code may establish and operate a drug
and
alcohol court program as a diversion program or an alternative
sentencing program, or both, to address offenses that stem from
substance
and/or alcohol use or abuse.
(2) For the purposes of this section, "drug
and/or alcohol
court program" means a program designed to achieve a reduction in
recidivism and substance
and/or alcohol abuse among nonviolent,
substance
and/or alcohol abusing offenders by increasing their
likelihood for successful rehabilitation through early, continuous,
and intense supervised treatment, mandatory periodic drug
and/or
alcohol testing
as applicable and the use of appropriate sanctions
and other rehabilitation services.
(3) A drug
and/or alcohol court program is to provide, at a
minimum:
(A) For successful completion of a diversion or plea agreement
in lieu of incarceration;
(B) Access by all participating parties of a case to
information on the offender's progress;
(C) Vigilant supervision and monitoring procedures;
(D) Random substance abuse
and/or alcohol testing,
as
applicable;
(E) Provisions for dealing with noncompliance, modification of
the treatment plan, and revocation proceedings;
(F) For its operation only when appropriate facilities and
outpatient services are available; and
(G) For payment of court costs, treatment costs, supervision
fees, and program user fees by the offender, unless payment of the
costs and fees would impose an undue hardship.
(4) An offender is eligible for a drug
and alcohol court
program only if:
(A) The underlying offense does not involve a felony crime of
violence, unless there is a specific treatment program available
designed to address violent offenders;
(B) The offender has no prior felony conviction in this state
or another state for a felony crime of violence; and
(C) The offender admits to having a substance
and/or alcohol
abuse addiction.
(5) The court may provide additional eligibility criteria it
considers appropriate.
CHAPTER 62. CRIMINAL PROCEDURES.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or in
a magistrate court under any criminal provision of this code of a
misdemeanor or felony, which is punishable by imposition of a fine
or confinement in the county or regional jail or a state
correctional facility, or both fine and confinement, may, in the discretion of the sentencing judge or magistrate, as an alternative
to the sentence imposed by statute for the crime, be sentenced
under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work in
jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the court, would be assigned to
a county agency to perform labor within the jail, or in and upon
the buildings, grounds, institutions, bridges, roads, including
orphaned roads used by the general public and public works within
the county. Eight hours of labor are to be credited as one day of
the sentence imposed. Persons sentenced under this program may be
required to provide their own transportation to and from the work
site, lunch and work clothes; or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to a
number of hours or days of community service work with government
entities or charitable or nonprofit entities approved by the
circuit court. Regarding any portion of the sentence designated as
confinement, eight hours of community service work is to be
credited as one day of the sentence imposed. Regarding any portion
of the sentence designated as a fine, the fine is to be credited at
an hourly rate equal to the prevailing federal minimum wage at the
time the sentence was imposed. In the discretion of the court, the sentence credits may run concurrently or consecutively. Persons
sentenced under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes;
(4) A day-reporting center program if the program has been
implemented in the sentencing court's jurisdiction or in the area
where the offender resides. For purposes of this subdivision
"day-reporting center" means a court-operated or court-approved
facility where persons ordered to serve a sentence in this type of
facility are required to report under the terms and conditions set
by the court for purposes which include, but are not limited to,
counseling, employment training, alcohol or drug testing or other
medical testing,
or
(5) Staggered sentencing under which a person convicted of an
offense of section two, article five, chapter seventeen-c of this
code may be sentenced according to the following provisions:
(A) For purposes of this code, the term "staggered sentencing"
means a sentencing procedure in which the court sentences a person
convicted of an offense of section two, article five, chapter
seventeen-c of this code to an executed sentence of confinement in
the county or regional jail or a state correctional facility, to be
served in equal segments in one or more consecutive years.
(B) After serving the first segment of incarceration, but
before reporting for any subsequent segment of incarceration, the
offender shall be regularly involved in a structured sobriety group
and may bring a motion before the court requesting to have that
subsequent segment of incarceration stayed. The motion must be brought before the same judge who initially pronounced the
sentence. Before bringing the motion, the offender shall
participate for thirty days in a remote electronic
alcohol-monitoring program under the direction of the person's
probation officer or other court-ordered supervision. It is within
the court's discretion to stay the second or subsequent segment of
remote electronic alcohol monitoring or incarceration that has
previously been ordered. In deciding whether to modify the
offender's sentence by ordering a stay of the next following
segment of remote electronic alcohol monitoring or incarceration
that the court had initially ordered to be executed, the court
shall consider any alcohol-monitoring results, the recommendation
of the person's probation officer or other court-ordered
supervisor, and any other factors deemed relevant by the court.
(C) When the court stays a segment of incarceration that it
has previously ordered to be executed, that portion of the sentence
must be added to the total number of days the defendant is subject
to serving in custody if the person subsequently violates any of
the conditions of that stay of execution.
(D) For purposes of this code, the term "structured sobriety
group" means any organization that has regular meetings focusing on
sobriety, and includes, but is not limited to, organizations such
as Alcoholics Anonymous.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this section, the court shall first make the following findings of fact
and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute.
The
mandatory sentences for offenses under the mandatory sentences for
offenses under section two, article five, chapter seventeen-c of
this code are considered duly executed by the court if the court
imposes staggered sentencing under the provisions of this section
and of subsection (r) of said section.
(2) In circuit court cases, that the person sentenced is not
a habitual criminal within the meaning of sections eighteen and
nineteen, article eleven, chapter sixty-one of this code;
(3) In circuit court cases, that the offense underlying the
sentence is not a felony offense for which violence or the threat
of violence to the person is an element of the offense;
(4) In circuit court cases, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the court's probation officers or the county
sheriff or, in magistrate court cases, that adequate facilities for
the administration and supervision of alternative sentencing
programs are available through the county sheriff; and
(5) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court under the
provisions of this article remain under the administrative custody
and supervision of the court's probation officers or the county sheriff. Persons sentenced by a magistrate remain under the
administrative custody and supervision of the county sheriff.
(e) Persons sentenced under the provisions of this section may
be required to pay the costs of their incarceration, including meal
costs:
Provided, That the judge or magistrate considers the
person's ability to pay the costs.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may withdraw
any alternative sentence at any time by order entered with or
without notice and require that the remainder of the sentence be
served in the county jail, regional jail or a state correctional
facility:
Provided, That no alternative sentence directed by the
sentencing judge or magistrate or administered under the
supervision of the sheriff, his or her deputies, a jailer or a
guard, may require the convicted person to perform duties which
would be considered detrimental to the convicted person's health as
attested by a physician.
(g) No provision of this section may be construed to limit a
circuit judge or magistrate's ability to impose a period of
supervision or participation in a community corrections program
created pursuant to
article eleven-c, chapter sixty-two of this
code.
ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.
§62-11C-1. Legislative intent.
(a) The Legislature hereby declares that the purpose of this
article is to enable any county or Class I or II municipality or any combination of counties and Class I or II municipalities to
develop, establish and maintain community-based corrections
programs to provide the judicial system with sentencing
alternatives for those offenders who may require less than
institutional custody
or who may benefit from a combination of
institutional custody and community-based corrections programs.
(b) The goals of developing community-based corrections
programs include:
(1) Allowing individual counties or combinations of a county
or counties and a Class I or II municipality greater flexibility
and involvement in responding to the problem of crime in their
communities;
(2) Providing more effective protection of society and
promoting efficiency and economy in the delivery of correctional
services;
(3) Providing increased opportunities for offenders to make
restitution to victims of crime through financial reimbursement;
(4) Permitting counties or combinations of a county or
counties and a Class I or II municipality to operate programs
specifically designed to meet the rehabilitative needs of
offenders;
(5) Providing appropriate sentencing alternatives,
or a
combination of institutional custody and community-based
corrections programs with the goal of reducing
the incidence of
repeat offenders recidivism;
(6) Permitting counties or combinations of a county or counties and a Class I or II municipality to designate
community-based programs to address local criminal justice needs;
(7) Diverting
or partially diverting offenders from the state
regional jail or correctional facilities by punishing
and
rehabilitating them
with through community-based sanctions, thereby
reserving state regional jail or correctional facilities for those
offenders who are deemed to be most dangerous to the community;
and
(8) Promoting accountability of offenders to their community;
and
(9) Encouraging long-term, positive contributions to the
community by rehabilitated offenders.
§62-11C-5. Establishment of programs.
(a) Any county or combination of counties or a county or
counties and a Class I or II municipality may establish and operate
community corrections programs, as provided for in this section,
for offenders sentenced within the jurisdiction of the county or
counties which establish and/or operate the program, to be used
both prior to trial as a condition of bond in circuit and
magistrate court,
as well as an alternative sentencing option
for
those offenders sentenced within the jurisdiction of the county or
counties which establish and operate the program or in conjunction
with institutional custody: Provided, That the chief judge must
certify that the community corrections facility is available for
use in connection with the imposition of pretrial bond conditions.
(b) Any county or combination of counties or a county or
counties and a Class I or II municipality that seek to establish programs as authorized in this section shall submit plans and
specifications for the programs to be established, including
proposed budgets, for review and approval by the community
corrections subcommittee established in section three of this
article.
(c) Any county or combination of counties or a county or
counties and a Class I or II municipality may establish and operate
an approved community corrections program to provide alternative
sanctioning options for an offender who is convicted of an offense
for which he or she may be sentenced to a period of incarceration
in a county or regional jail or a state correctional facility and
for which probation or home incarceration may be imposed as an
alternative to incarceration.
(d) Community corrections programs authorized by subsection
(a) of this section may provide, but are not limited to providing,
any of the following services:
(1) Probation supervision programs;
(2) Day fine programs;
(3) Community service restitution programs;
(4) Home incarceration programs;
(5) Substance
and/or alcohol abuse treatment programs;
(6) Sex offender containment programs;
(7) Licensed domestic violence offender treatment programs;
(8) Day reporting centers;
(9) Educational or counseling programs; or
(10) Drug
and/or alcohol courts.
(e) A county or combination of counties or a county or
counties and a Class I or II municipality which establish and
operate community corrections programs as provided for in this
section may contract with other counties to provide community
corrections services.
(f) For purposes of this section, the phrase "may be sentenced
to a period of incarceration" means that the statute defining the
offense provides for a period of incarceration as a possible
penalty.
(g) No provision of this article may be construed to allow a
person participating in or under the supervision of a community
corrections program to earn "good time" or any other reduction in
sentence.
NOTE: The purpose of this bill is to
reduce recidivism of
offenders convicted of driving under the influence of alcohol
through mandated participation in the Motor Vehicle Alcohol Test
and Lock Program for all offenders. Implementing mandated license
sanctions. Removes expungement provisions for offenders under
twenty-one years of age. Imposition of staggered sentencing.
Offender participation in community corrections programs. Mandated
guilty or nolo contendere plea in pre-trial diversion agreements.
Oversight of dedicated drug and alcohol courts.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.