H. B. 4211

         (By Delegates Fleischauer, Kinsey, Perdue,

         Barill, Marshall, Pino, Lynch, Hunt,

         Manypenny, Sobonya and White)

         [Introduced January 17, 2014; 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-5-2c, relating to requiring the seizure, impoundment and forfeiture of the motor vehicles of drivers who have been arrested on at least four occasions for impaired driving; defining a term; setting forth the procedures to be used; requiring notice, hearings and orders; setting forth the rights of lienholders, innocent owners and others; requiring bonds to be posted; permitting petitions to be filed; setting forth damage and liability considerations; permitting the sale of an impounded vehicle under certain circumstances; and defining terms.

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-5-2c, to read as follows:

ARTICLE 5. SERIOUS TRAFFIC OFFENSES.

§17C-5-2c. Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving.

    (a) Any person who is arrested for:

    (1) Driving 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) Has been previously arrested on three or more occasions for the offenses identified in subdivision (1) of this subsection shall have the motor vehicle he or she was driving at the time of the arrest immediately seized and impounded.

    (b) The motor vehicle seized and impounded pursuant to subsection (a) of this section is subject to the forfeiture provisions of this section.

    (c) For the purposes of this section any impairment identified in subdivision (1), subsection (a) of this section is defined as “impaired driving.”

    (d) If the charging officer has probable cause to believe that a motor vehicle driven by the defendant may be subject to forfeiture under this section, the officer shall seize the motor vehicle and have it impounded. If the officer determines prior to seizure that the motor vehicle had been reported stolen, the officer may not seize the motor vehicle pursuant to this section. If the officer determines prior to seizure that the motor vehicle was a rental vehicle driven by a person not listed as an authorized driver on the rental contract, the officer may not seize the motor vehicle pursuant to this section, but shall make a reasonable effort to notify the owner of the rental vehicle that the vehicle was stopped and that the driver of the vehicle was not listed as an authorized driver on the rental contract. Probable cause may be based on the officer's personal knowledge, reliable information conveyed by another officer, records of the Division of Motor Vehicles, or other reliable source. The seizing officer shall notify the Division of Motor Vehicles as soon as practical but no later than twenty-four hours after seizure of the motor vehicle of the seizure in accordance with procedures designated under subsection (e) of this section.

    (e) Within forty-eight hours of receipt within regular business hours of the notice of seizure, the Division of Motor Vehicles shall issue written notification to any lienholder of record and to any motor vehicle owner who was not operating the motor vehicle at the time of the offense. A notice of seizure received outside regular business hours shall be considered to have been received at the start of the next business day. The notification of impoundment shall be sent by first-class mail to the most recent address contained in the division's records. If the motor vehicle is registered in another state, notice shall be sent to the address shown on the records of the state where the motor vehicle is registered. This written notification shall provide notice that the motor vehicle has been seized, state the reason for the seizure and the procedure for requesting release of the motor vehicle. Additionally, if the motor vehicle was damaged while the defendant operator was committing an offense involving impaired driving or incident to the seizure, the agency shall issue written notification of the seizure to the owner's insurance company of record and to any other insurance companies that may be insuring other motor vehicles involved in the accident. The division shall prohibit title to a seized motor vehicle from being transferred by a motor vehicle owner unless authorized by court order.

    (f) In addition to providing written notification pursuant to subsection (e) of this section, within eight hours of receipt within regular business hours of the notice of seizure, the Division of Motor Vehicles shall notify by facsimile any lienholder of record that has provided the Division of Motor Vehicles with a designated facsimile number for notification of impoundment. The facsimile notification of impoundment shall state that the vehicle has been seized, state the reason for the seizure, and notify the lienholder of the additional written notification that will be provided pursuant to subsection (e) of this section. The Division of Motor Vehicles shall establish procedures to allow a lienholder to provide one designated facsimile number for notification of impoundment for any vehicle for which the lienholder is a lienholder of record and shall maintain a centralized database of the provided facsimile numbers. The lienholder must provide a facsimile number at which the Division of Motor Vehicles may give notification of impoundment at anytime.

    (g) Upon determining that there is probable cause for seizing a motor vehicle, the seizing officer shall present to a magistrate within the county where the driver was charged an affidavit of impoundment setting forth the basis upon which the motor vehicle has been or will be seized for forfeiture. The magistrate shall review the affidavit of impoundment and if the magistrate determines the requirements of this section have been met, shall order the motor vehicle held. The magistrate may request additional information and may hear from the defendant if the defendant is present. If the magistrate determines the requirements of this section have not been met, the magistrate shall order the motor vehicle released to the motor vehicle owner upon payment of towing and storage fees. If the motor vehicle has not yet been seized, and the magistrate determines that seizure is appropriate, the magistrate shall issue an order of seizure of the motor vehicle. The magistrate shall provide a copy of the order of seizure to the clerk of the court. The clerk shall provide copies of the order of seizure to the prosecuting attorney.

    (h) An order of seizure shall be valid anywhere in the state. Any officer with territorial jurisdiction may use such force as may be reasonable to seize the motor vehicle and to enter upon the property of the defendant to accomplish the seizure. An officer who has probable cause to believe the motor vehicle is concealed or stored on private property of a person other than the defendant may obtain a search warrant to enter upon that property for the purpose of seizing the motor vehicle.

    (i) Unless the motor vehicle is towed pursuant to a statewide or regional contract, the seized motor vehicle shall be towed by a commercial towing company designated by the law-enforcement agency that seized the motor vehicle. If either a statewide or regional contractor chooses to contract for local towing services, all towing companies on the towing list for each law-enforcement agency with jurisdiction within the county shall be given written notice and an opportunity to submit proposals prior to a contract for local towing services being awarded.

    (j) A motor vehicle owner, other than the driver at the time of the underlying offense resulting in the seizure, may apply to the clerk of the court in the county where the charges are pending for pretrial release of the motor vehicle. The clerk shall release the motor vehicle to a nondefendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:

    (1) The motor vehicle has been seized for not less than twenty-four hours;

    (2) A bond in an amount equal to the fair market value of the motor vehicle has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond or by at least one solvent surety, payable to the county or municipality and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any hearing scheduled and noticed by the prosecuting attorney, unless the motor vehicle has been permanently released;

    (3) A check of the records of the Division of Motor Vehicles indicates that the requesting motor vehicle owner has not previously executed an acknowledgment naming the operator of the seized motor vehicle; and

    (4) A bond posted to secure the release of the motor vehicle under this subsection has not been previously ordered forfeited.

    In the event a nondefendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subsection does not return the motor vehicle on the day of the forfeiture hearing as noticed by the prosecuting attorney or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subsection, the bond posted shall be ordered forfeited and an order of seizure shall be issued by the court. Additionally, a nondefendant motor vehicle owner or lienholder who willfully violates any condition of pretrial release may be held in civil or criminal contempt.

    (k)(1) A nondefendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the petitioner is an innocent owner. The clerk shall consider the petition and make a determination as soon as may be feasible. At any proceeding conducted pursuant to this subsection, the clerk is not required to determine the issue of forfeiture, only the issue of whether the petitioner is an innocent owner. If the clerk determines that the petitioner is an innocent owner, the clerk shall release the motor vehicle to the petitioner. The clerk shall send a copy of the order authorizing or denying release of the vehicle to the prosecuting attorney. An order issued under this subsection finding that the petitioner failed to establish that the petitioner is an innocent owner may be reconsidered by the court as part of the forfeiture hearing.

    (2) For purposes of this section an “innocent owner” is the owner of the motor vehicle who: (A) Did not know or have reason to know that the defendant had been previously arrested for impaired driving; (B) reported the motor vehicle stolen; (C) is in the business of renting motor vehicles and the defendant was not listed as an authorized driver on the rental agreement and had no actual knowledge that the defendant had been previously arrested for impaired driving; or (D) is in the business of leasing motor vehicles, held legal title to the vehicle as lessor at the time the vehicle was seized and had no actual knowledge that the defendant had been previously arrested for impaired driving.

    (l) A defendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the defendant had not been arrested on three previous occasions for impaired driving. The clerk shall schedule a hearing in which the underlying criminal charge is pending for a hearing to be held within ten business days or as soon thereafter as may be feasible. Notice of the hearing shall be given to the defendant and the prosecuting attorney. The clerk shall forward a copy of the petition to the prosecuting attorney for his or her review. If, based on available information, the prosecuting attorney determines that the defendant's motor vehicle is not subject to forfeiture, he or she may note the state's consent to the release of the motor vehicle on the petition and return the petition to the clerk of the court who shall enter an order releasing the motor vehicle to the defendant upon payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle, subject to the satisfactory proof of the identity of the defendant as a motor vehicle owner and no hearing held. At any pretrial hearing conducted pursuant to this subsection, the court is not required to determine the issue of the underlying offense of impaired driving only the existence of a prior drivers license revocation as an impaired driving license revocation. Accordingly, the state may not be required to prove the underlying offense of impaired driving. An order issued under this subsection finding that the defendant failed to establish that the defendant's license was not revoked pursuant to an impaired driving license revocation may be reconsidered by the court as part of the forfeiture hearing.

    (m) (1) A lienholder may file a petition with the clerk of the court requesting the court to order pretrial release of a seized motor vehicle. The lienholder shall serve a copy of the petition on all interested parties including the registered owner, the titled owner and the prosecuting attorney. Upon ten days' prior notice of the date, time, and location of the hearing sent by the lienholder to all interested parties, a judge, after a hearing, shall order a seized motor vehicle released to the lienholder conditioned upon payment of all towing and storage costs incurred as a result of the seizure and impoundment of the motor vehicle if the judge determines, by the greater weight of the evidence, that:

    (A) Default on the obligation secured by the motor vehicle has occurred;

    (B) As a consequence of default, the lienholder is entitled to possession of the motor vehicle;

    (C) The lienholder agrees to sell the motor vehicle in accordance with the terms of its lien agreement. Upon sale of the motor vehicle, the lienholder pays to the clerk of the court of the county in which the driver was charged all proceeds from the sale, less the amount of the lien in favor of the lienholder, and any towing and storage costs paid by the lienholder;

    (D) The lienholder agrees not to sell, give, or otherwise transfer possession of the seized motor vehicle while the motor vehicle is subject to forfeiture, or the forfeited motor vehicle after the forfeiture hearing, to the defendant or the motor vehicle owner; and

    (E) The seized motor vehicle while the motor vehicle is subject to forfeiture, or the forfeited motor vehicle after the forfeiture hearing, had not previously been released to the lienholder as a result of a prior seizure involving the same defendant or motor vehicle owner.

    (2) The clerk of the court may order a seized vehicle released to the lienholder conditioned upon payment of all towing and storage costs incurred as a result of the seizure and impoundment of the motor vehicle at any time when all interested parties have, in writing, waived any rights that they may have to notice and a hearing, and the lienholder has complied with paragraph (D), subdivision (1) of this subsection. A lienholder who refuses to sell, give, or transfer possession of a seized motor vehicle while the motor vehicle is subject to forfeiture, or a forfeited motor vehicle after the forfeiture hearing, to: (A) The defendant; (B) the motor vehicle owner who owned the motor vehicle immediately prior to seizure pending the forfeiture hearing, or to forfeiture after the forfeiture hearing; or (C) any person acting on the behalf of the defendant or the motor vehicle owner is not liable for damages arising out of such refusal. However, any subsequent violation of the conditions of release by the lienholder shall be punishable by civil or criminal contempt.

    (n) In the event a motor vehicle is damaged incident to the conduct of the defendant which gave rise to the defendant's arrest and seizure of the motor vehicle pursuant to this section, the prosecuting attorney is authorized to resolve the issue with the insurance company and to compromise and accept settlement of any claim for damages. Property insurance proceeds accruing to the defendant, or other owner of the seized motor vehicle, shall be paid by the responsible insurance company directly to the clerk of the court in the county where the motor vehicle driver was charged. If the motor vehicle is declared a total loss by the insurance company liable for the damages to the motor vehicle, the clerk of the court shall enter an order that the motor vehicle be released to the insurance company upon payment into the court of all insurance proceeds for damage to the motor vehicle after payment of towing and storage costs and all valid liens. The clerk of the court shall provide the Division of Motor Vehicles with a certified copy of the order entered pursuant to this subsection, and the division shall transfer title to the insurance company or to such other person or entity as may be designated by the insurance company. Insurance proceeds paid to the clerk of the court pursuant to this subsection is subject to forfeiture and shall be disbursed pursuant to further orders of the court. An affected motor vehicle owner or lienholder who objects to any agreed upon settlement under this subsection may file an independent claim with the insurance company for any additional moneys believed owed. Notwithstanding any other provision in this code to the contrary, nothing in this section requires an insurance company to make payments in excess of those required pursuant to its policy of insurance on the seized motor vehicle.

    (o) In order to avoid additional liability for towing and storage costs pending resolution of the criminal proceedings of the defendant, after expiration of ninety days from the date of seizure, a motor vehicle having a fair market value of $1,500 or less may be sold. The motor vehicle, regardless of the fair market value, may also be sold any time the outstanding towing and storage costs exceed eighty-five percent of the fair market value of the vehicle, or with the consent of all the motor vehicle owners. The proceeds of any sale conducted pursuant to this subsection shall, after the payment of outstanding towing and storage costs or reimbursement of towing and storage costs paid by a person other than the defendant, be deposited with the clerk of the court. If the court determines that the motor vehicle is not subject to forfeiture, the court shall order the proceeds held by the clerk to be disbursed first to pay the sale, towing, and storage costs, second to pay outstanding liens on the motor vehicle, and the balance to be paid to the motor vehicle owners.

    (p) At reasonable times, the entity charged with storing the motor vehicle may permit owners of personal property not affixed to the motor vehicle to retrieve those items from the motor vehicle, provided satisfactory proof of ownership of the motor vehicle or the items of personal property is presented to the storing entity.

    (q) If the driver of a motor vehicle seized pursuant to this section is convicted of an offense involving impaired driving, the defendant shall be ordered to pay as restitution to the motor vehicle owner or the lienholder the cost paid or owing for the towing, storage, and sale of the motor vehicle to the extent the costs were not covered by the proceeds from the forfeiture and sale of the motor vehicle. In addition, a civil judgment for the costs under this section in favor of the party to whom the restitution is owed shall be docketed by the clerk of the court. If the defendant is sentenced to an active term of confinement the civil judgment shall become effective and be docketed when the defendant's conviction becomes final. If the defendant is placed on probation, the civil judgment in the amount found by a judge during the probation revocation or termination hearing to be due shall become effective and be docketed by the clerk when the defendant's probation is revoked or terminated.

    (r) Circuit court trials of impaired driving offenses involving forfeitures of motor vehicles shall be scheduled on the arresting officer's next court date or within thirty days of the offense, whichever comes first. Once scheduled, the case shall not be continued unless all of the following conditions are met:

    (1) A written motion for continuance is filed with notice given to the opposing party prior to the motion being heard;

    (2) The judge makes a finding of a compelling reason for the continuance; and

    (3) The motion and finding are attached to the court case record.

    (s) Upon a determination of guilt, the issue of vehicle forfeiture shall be heard by the judge immediately, or as soon thereafter as feasible, and the judge shall issue the appropriate orders. Should a defendant appeal the conviction, any party who has not previously been heard on a petition for pretrial release under this section or any party whose motor vehicle has not been the subject of a forfeiture hearing may be heard on a petition for pretrial release. Subsection (j) of this section also applies to seized motor vehicles pending trial. Where a motor vehicle was released pursuant to subsection (j) of this section pending trial in circuit court, the release of the motor vehicle continues, and the terms and conditions of the original bond remain the same as those required for the initial release of the motor vehicle under subsection (j) of this section, pending the resolution of the underlying offense involving impaired driving in circuit court.

    (t) Any order issued pursuant to this section authorizing the release of a seized vehicle shall require the payment of all towing and storage charges incurred as a result of the seizure and impoundment of the motor vehicle. This requirement may not be waived.

    NOTE: The purpose of this bill is to permit to the seizure, impoundment and forfeiture of the motor vehicles of drivers who have been arrested on at least four occasions for impaired driving. The bill defines impaired driving. The bill sets forth the procedure to be used. The bill requires notice, hearings and orders. The bill provides for lienholders, innocent owners and others. The bill requires bonds to be posted. The bill permits petitions to be filed. The bill sets forth damage and liability considerations. The bill permits the sale of an impounded vehicle under certain circumstances. The bill also defines “impaired driving” and “innocent owner.”

    This section is new; therefore, it has been completely underscored.