H. B. 4366
(By Delegates Stemple, Webster, Moore, Hrutkay,
Brown and Pino)
[Introduced January 31, 2008; referred to the
Committee on Roads and Transportation then the
Judiciary.]
A BILL to amend and reenact §17B-4-3 of the Code of West
Virginia, 1931, as amended; to amend and reenact §17C-5-2
and §17C-5-7 of said code; to amend said code by adding
thereto a new section, designated §17C-5-4a; to amend and
reenact §17C-5A-1, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of
said code, all relating to modifications to administrative
and criminal penalties for driving a motor vehicle under the
influence of alcohol and/or drugs; reducing the
administrative sanctions for driving a vehicle with a
lawfully suspended or revoked license; removing the
mandatory twenty-four hour incarceration for first offense
driving under the influence; deleting a provision
criminalizing the operation of a motor vehicle by habitual
drug user; creating an aggravated offense of driving with a
blood alcohol concentration of fifteen hundredths of one
percent or more, by weight; requiring drivers involved in a motor vehicle crash that results in the death or serious
bodily injury to another person to submit to a chemical test
of their blood, breath or urine; permitting participation in
the motor vehicle alcohol test and lock program for first
offense driving under the influence; removing superfluous
provisions related to children operating a motor vehicle
under the influence of alcohol; permit law-enforcement
officers to submit an affidavit rather than attend the
administrative hearing unless subpoenaed; providing
incentives for participation in the motor vehicle alcohol
test and lock program for first offense driving under the
influence; providing enhanced administrative sanctions for
persons operating a motor vehicle with a blood alcohol
concentration of fifteen hundredths of one percent or more,
by weight; making certain technical changes to
administrative procedures; transferring primary authority of
the safety and treatment program to the Department of Health
and Human Resources; providing for removal of the driver's
rehabilitation fund from the jurisdiction of the Division of
Motor Vehicles and placing it under the jurisdiction of the
Secretary of the Department of Health and Human Resources;
providing that a person revoked for refusing to take a
secondary chemical test is not eligible to reduce the
revocation period by completing the safety and treatment program; removing requirement that victim impact panels be
implemented pursuant to legislative rules; reducing the
minimum period of revocation for participation in the test
and lock program; increasing minimum periods of
participation in the ignition interlock device for
aggravating offenses; and denying participation in the motor
vehicle test and lock program for persons whose drivers
license is revoked for driving under the influence of drugs.
Be it enacted by the Legislature of West Virginia:
That §17B-4-3 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §17C-5-2 and §17C-5-7 of
said code be amended and reenacted; that said code be amended by
adding thereto a new section, designated §17C-5-4a; that §17C-
5A-1, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code be amended
and reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the influence of
alcohol, controlled substances or drugs, or while having
alcoholic concentration in the blood of eight hundredths of
one percent or more, by weight, or for refusing to take
secondary chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do
so has been lawfully suspended or revoked by this state or any
other jurisdiction is, for the first offense, guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than one hundred dollars nor more than five hundred dollars; for
the second offense, the person is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in
a county or
regional jail for a period of
not less than ten two days
nor more
than five days and, in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than
five hundred dollars; for the third or any subsequent offense,
the person is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
a county or regional jail for
a
period of not less than thirty days nor more than ninety days six
months and,
in addition to the mandatory jail sentence, shall be
fined not less than
one two hundred fifty dollars nor more than
five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do
so has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs,
or any combination
thereof, or for driving while having an alcoholic concentration
in his or her blood of eight hundredths of one percent or more, by weight, or for refusing to take a secondary chemical test of
blood alcohol content, is, for the first offense, guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a
county or regional jail for
a period of not less than thirty days
nor more than six months and
in addition to the mandatory jail
sentence, shall be fined not less than one hundred dollars nor
more than five hundred dollars; for the second offense, the
person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in
a county or regional jail for a period of
not less than six months nor more than one year and
in addition
to the mandatory jail sentence, shall be fined not less than one
thousand dollars nor more than three thousand dollars; for the
third or any subsequent offense, the person is guilty of a felony
and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than
three years and, in addition to the mandatory prison sentence,
shall be fined not less than three thousand dollars nor more than
five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section
upon a charge of driving a vehicle while the license of such
person was lawfully suspended or revoked, the division shall
extend the period of
such suspension or revocation for an
additional period of
one year six months which may be served concurrently with any other suspension or revocation. from and
after the date such person would otherwise have been entitled to
apply for a new license. Upon receiving a record of the second
or subsequent conviction of any person under subsection (a) of
this section upon a charge of driving a vehicle while the license
of such person was lawfully suspended or revoked, the division
shall extend the period of such suspension or revocation for an
additional period of
one year ninety days which may be served
concurrently with any other suspension or revocation. from and
after the date such person would otherwise have been entitled to
apply for a new license.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do
so has been lawfully suspended for driving 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 guilty
of a misdemeanor and, upon conviction thereof, shall be confined
in
a county or regional jail for twenty-four hours or shall be
fined not less than fifty dollars nor more than five hundred
dollars, or both.
Upon receiving a record of a first or subsequent conviction
under this section for a charge of driving a vehicle while the
license of such person was lawfully suspended or revoked, the division shall extend the period of such suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to
the provisions of article eleven-b, chapter sixty-two of this
code may be used as an alternative sentence to any period of
incarceration required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§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; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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) When so 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 one thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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) When so 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 five hundred dollars nor more than
one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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) When so 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 two hundred dollars nor more
than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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 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 one hundred dollars nor more than five
hundred dollars.
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:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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
fifteen 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 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 two hundred dollars nor more than one thousand dollars. 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) (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 one hundred dollars nor more than five
hundred dollars.
(f) (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; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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;
(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 one hundred dollars nor more than five
hundred dollars.
(g) (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 one hundred dollars nor more than five hundred
dollars.
(h) (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 twenty-five dollars nor more than one hundred
dollars. 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 one hundred dollars nor
more than five hundred dollars. 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 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 subsection (a), (b), (c), (d), (e), (f), (g),
(h)
or (i) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.
(i) (j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(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 when so driving has on or within the motor vehicle one or more other persons who are un-emancipated 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 two hundred
dollars nor more than one thousand dollars.
(j) (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 one thousand dollars
nor more than three thousand dollars.
(k) (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 three thousand dollars nor more than five thousand
dollars.
(l) (m) For purposes of subsections
(j) and (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)
or (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)
or
(g)
or (h) of this section, which offense occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding.
(m) (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.
(n) (o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d)
or (e)
or (f) of this section, or
any person permitted to drive as described under subsection
(f)
or (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)
or (g)
or (h) of this section.
(o) (p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) (q) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be 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. An order for home detention
by the court pursuant to the provisions of article eleven-b of
said chapter 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.
§17C-5-4a. Mandatory chemical test required for drivers involved
in motor vehicle crashes when death or serious
bodily injury occurs.
When a law-enforcement officer has reasonable cause to
believe that the driver of a motor vehicle is under the influence
of alcohol, any controlled substance or any other drugs, or any
combination thereof, and such driver is involved in a motor
vehicle crash that results in the death or serious bodily injury
to another person, the driver shall submit to a chemical test of
their blood, breath or urine, at the direction of the law-
enforcement officer, designed to detect and measure the existence
of alcohol, controlled substances or any other drugs, or any
combination thereof.
§17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four
of this article refuses to submit to any secondary chemical test,
the tests shall not be given:
Provided, That prior to such
refusal, the person is given
a an oral warning and a written
statement advising him
or her that his
or her refusal to submit
to the secondary test finally designated will result in the
revocation of his
or her license to operate a motor vehicle in
this state for a period of at least one year and up to life;
and
that after fifteen minutes following the warnings If a person
initially refuses to submit to the designated secondary chemical
test after being informed in writing of the consequences of such
refusal, he shall be informed orally and in writing that after
fifteen minutes said refusal shall be deemed to be final.
and the
The arresting officer shall after said period of time expires
have no further duty to provide the person with an opportunity to
take the secondary test. The officer shall within forty-eight
hours of such refusal, sign and submit to the Commissioner of
Motor Vehicles a written statement of the officer that: (1) He
or
she had reasonable grounds to believe such person had been
driving a motor vehicle in this state while under the influence
of alcohol, controlled substances or drugs; (2) such person was
lawfully placed under arrest for an offense relating to driving a motor vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (3) such person refused to submit
to the secondary chemical test finally designated in the manner
provided in section four of this article; and (4) such person was
given a written statement advising him
or her that his
or her
license to operate a motor vehicle in this state would be revoked
for a period of at least one year and up to life if he
or she
refused to submit to the secondary test finally designated in the
manner provided in section four of this article. The signing of
the statement required to be signed by this section shall
constitute an oath or affirmation by the person signing such
statement that the statements contained therein are true and that
any copy filed is a true copy.
Such The statement shall contain
upon its face a warning to the officer signing that to willfully
sign a statement containing false information concerning any
matter or thing, material, or not material, is false swearing and
is a misdemeanor. Upon receiving the statement the commissioner
shall make and enter an order revoking such person's license to
operate a motor vehicle in this state for the period prescribed
by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of one year
or a revocation period of forty-five days with an additional one year of participation in the
motor vehicle alcohol test and lock program in accordance with
the provisions of section three-a, article five-a, chapter
seventeen-c of this code: Provided, That a person revoked for
driving while under the influence of drugs is not eligible to
participate in the motor vehicle test and lock program. The
application for participation in the motor vehicle alcohol test
and lock program shall be deemed to be a waiver of the hearing
provided in section two, article five-A of this chapter. If the
commissioner has previously revoked the person's license under
the provisions of this section, the commissioner shall, for the
refusal to submit to the designated secondary chemical test, make
and enter an order revoking such person's license to operate a
motor vehicle in this state for a period of ten years:
Provided,
That the license may be reissued in five years in accordance with
the provisions of section three, article five-a of this chapter.
If the commissioner has previously revoked the person's license
more than once under the provisions of this section, the
commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking such
person's license to operate a motor vehicle in this state for a
period of life:
Provided, however, That the license may be
reissued in ten years in accordance with the provisions of
section three, article five-a of this chapter. A copy of each
such order shall be forwarded to
such the person by registered or
certified mail, return receipt requested, and shall contain the
reasons for the revocation and shall specify the revocation
period imposed pursuant to this section. No such revocation
shall become effective until ten days after receipt of the copy
of
such the order. Any person who is unconscious or who is
otherwise in a condition rendering him
or her incapable of
refusal, shall be deemed not to have withdrawn his
or her consent
for a test of his
or her blood, breath or urine as provided in
section four of this article and the test may be administered
although
such the person is not informed that his
or her failure
to submit to the test will result in the revocation of his
or her
license to operate a motor vehicle in this state for the period
provided for in this section.
A revocation hereunder shall run concurrently with the
period of any suspension or revocation imposed in accordance with
other provisions of this code and growing out of the same
incident which gave rise to the arrest for driving a motor
vehicle while under the influence of alcohol, controlled
substances or drugs and the subsequent refusal to undergo the
test finally designated in accordance with the provisions of
section four of this article.
(b) For the purposes of this section, where reference is
made to previous suspensions or revocations under this section, the following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) 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 of this article, for conduct which occurred on or after June
tenth, one thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or
two, article five-a of this chapter, for conduct which occurred
on or after June tenth, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in
this state has been revoked shall be afforded an opportunity to
be heard, in accordance with the provisions of section two,
article five-a of this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1. Implied consent to administrative procedure;
revocation for driving under the influence of
alcohol, controlled substances or drugs or
refusal to submit to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be
revoked because he or she did drive a motor vehicle while under
the influence of alcohol, controlled substances or drugs, or
combined influence of alcohol or controlled substances or drugs,
or did drive a motor vehicle while having an alcohol
concentration in his or her blood of eight hundredths of one
percent or more, by weight, or did refuse to submit to any
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.
(b) Any law-enforcement officer
arresting investigating a
person for an offense described in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said
section shall report to the commissioner of the Division of Motor
Vehicles by written statement within forty-eight hours
of the
arrest or the conclusion of the investigation the name and
address of the person
so arrested believed to have committed the offense. The report shall include the specific offense with
which the person is charged and, if applicable, a copy of the
results of any secondary tests of blood, breath or urine. The
signing of the statement required to be signed by this subsection
shall constitute an oath or affirmation by the person signing the
statement that the statements contained therein are true and that
any copy filed is a true copy. The statement shall contain upon
its face a warning to the officer signing that to willfully sign
a statement containing false information concerning any matter or
thing, material or not material, is false swearing and is a
misdemeanor.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this
section, the commissioner shall determine that a person
was
arrested for committed an offense described in section two,
article five of this chapter or
for an offense described in a
municipal ordinance which has the same elements as an offense
described in said section, and that the results of any secondary
test or tests indicate that at the time the test or tests were
administered the person had, in his or her blood, an alcohol
concentration of eight hundredths of one percent or more, by
weight, or at the time the person
was arrested committed the
offense he or she was under the influence of alcohol, controlled
substances or drugs, the commissioner shall make and enter an order revoking
or suspending the person's license to operate a
motor vehicle in this state. If the results of the tests
indicate that at the time the test or tests were administered the
person was under the age of twenty-one years and had 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 and enter an
order suspending the person's license to operate a motor vehicle
in this state. A copy of the order shall be forwarded to the
person by registered or certified mail, return receipt requested,
and shall contain the reasons for the revocation or suspension
and describe the applicable revocation or suspension periods
provided
for in section two of this article. No revocation or
suspension shall become effective until ten days after receipt of
a copy of the order.
(d) Any law enforcement officer taking a child into custody
under the provisions of section six-a, article five of this
chapter who has reasonable cause to believe that the child, at
the time of driving the motor vehicle, had an alcohol
concentration in his or her blood of two hundredths of one
percent or more, by weight, or that the act of the child in
driving the motor vehicle was such that it would provide grounds
for arrest for an offense defined under the provisions of section
two of said article if the child were an adult, shall report to the commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours the name and address of the
child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult, and a copy of the results of any
secondary tests of blood, breath or urine. The signing of the
statement required to br signed by this subsection shall
constitute an oath or affirmation by the person signing such
statement that the statements contained therein are true and that
any copy filed is a true copy. Such statement shall contain upon
its face a warning to the officer signing that to willfully sign
a statement containing false information concerning any matter or
thing, material or not material is false swearing and is a
misdemeanor.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this section,
if the commissioner determines that the results of the test
indicate that at the time the test or tests were administered the
child had, in his or her blood, an alcohol concentration of two
hundredths of one percent or more, by weight, but also determines
that the act of the child in driving the motor vehicle was not
such that it would provide grounds for arrest for an offense
defined under the provisions of subsection (a), (b), (c), (d), (e), (f) or (g), section two, article five of this chapter if the
child were an adult, the commissioner shall make and enter an
order suspending the child=s license to operate a motor vehicle
ion this state. If the commissioner determines that the act of
the child in driving the motor vehicle was such that it would
provide grounds for arrest for an offense defined under the
provisions of subsection (a), (b), (c), (d), (e), (f) or (g),
section two, article five of this chapter if the child were an
adult, the commissioner shall make and enter an order revoking
the child=s license to operate a motor vehicle in this state. A
copy of such order shall be forwarded to the child by registered
or certified mail, return receipt requested, and shall contain
the reasons for the suspension or revocation and describe the
applicable suspension or revocation periods provided for in
section two of this article. No suspension or revocation shall
become effective until ten days after receipt of a copy of such
order.
§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 hearing
shall be held at an office of the division located in or near the
county wherein the arrest was made in this state or at some other
suitable place in the county wherein the arrest was made if an
office of the division is not available.
(b) Any such hearing shall be held within one hundred eighty
days after the date upon which the commissioner received the
timely written request therefor 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 such hearing on the
commissioner's own motion or for the benefit of any law-
enforcement officer or any person requesting the hearing, and such policies shall be enforced and applied to all parties
equally. For the purpose of conducting the hearing, the
commissioner shall have the power and authority to 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, shall constitute a subpoena to
appear at the hearing without the necessity of payment of fees by
the Division of Motor Vehicles.
(c)
Any law-enforcement officer that submits a statement
pursuant to section one of this article that results in a hearing
pursuant to this section shall be notified of the hearing but is
not required to attend unless subpoenaed. 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 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.
The commissioner shall consider the written
statement, test results and any other information submitted by
the law-enforcement officer pursuant to section one of this
article regardless of whether the officer appears at the hearing.
(d) 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 rule 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, 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 such
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 such evidence.
Any such 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.
(e) In the case of a hearing wherein 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 arresting 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
was lawfully placed
under arrest for 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.
(f) 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 so 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.
(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, the commissioner also finds by
a preponderance of the evidence that the person when so 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.
(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 so 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.
(i) 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,
or finds that the person, being an habitual user of
narcotic drugs or amphetamine or any derivative thereof, did
drive a motor vehicle, 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,
but
less than fifteen 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 days of participation in the motor vehicle
alcohol test and lock program in accordance with the provisions
of section three-a, article five-A, chapter seventeen-C of this
code: Provided, That if a person chooses to serve the fifteen
day revocation and the one hundred and twenty days of
participation in the motor vehicle alcohol test and lock program
under this section, the revocation period will not be reduced
under the provisions of section three-a, article five-A, chapter
seventeen-C of this code: Provided, however, That a person whose
license is revoked for driving while under the influence of drugs is not eligible to participate in the motor vehicle test and lock
program: Provided further, 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 And
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.
(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 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
fifteen hundredths of one percent or more, by weight, the
commissioner shall revoke the person's license for a period of
one hundred and eighty days or a period of forty-five days with an additional two hundred and seventy days of 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 a person revoked for
driving while under the influence of drugs is not eligible to
participate in the motor vehicle 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.
(j) (k) 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 so
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.
(k) (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 so
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.
(l) (m) 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 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.
(m) (n) 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 so 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.
(n) (o) 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.
(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.
(o) (p) In the case of a hearing wherein 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
was lawfully placed under arrest
for 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 one year and up to life if
the person refused to submit to the test finally designated in
the manner provided in said section.
(p) (q) If the commissioner finds by a preponderance of the
evidence that: (1) 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) the person
was lawfully
placed under arrest for 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 one year 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.
(q) (r) 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 such 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.
(r) (s) 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.
(s) (t) 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 such funds to the commission on
drunk driving prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The
Division of Motor Vehicles, in cooperation with the
Department of Health and Human Resources,
the Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of
chapter twenty-nine-a of this code, establishing a comprehensive
safety and treatment program for persons whose licenses have been
revoked under the provisions of this article, or section seven,
article five of this chapter, or subsection (6), section five,
article three, chapter seventeen-b of this code, and shall
likewise establish the minimum qualifications for mental health
facilities or other public agencies or private entities
conducting the safety and treatment program:
Provided, That the
commissioner Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse may establish standards whereby the
division will accept or approve participation by violators in
another treatment program which provides the same or substantially similar benefits as the safety and treatment
program established pursuant to this section. The program shall
include, but not be limited to, treatment of alcoholism, alcohol
and drug abuse, psychological counseling, educational courses on
the dangers of alcohol and drugs as they relate to driving,
defensive driving, or other safety driving instruction and other
programs designed to properly educate, train and rehabilitate the
offender.
(b) (1) The
Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources,
the Division of
Alcoholism and Drug Abuse, shall provide for the preparation of
an educational and treatment program for each person whose
license has been revoked under the provisions of this article or
section seven, article five of this chapter, or subsection (6),
section five, article three, chapter seventeen-b of this code,
which shall contain the following: (A) A listing and evaluation
of the offender's prior traffic record; (B) characteristics and
history of alcohol or drug use, if any; (C) his or her
amenability to rehabilitation through the alcohol safety program;
and (D) a recommendation as to treatment or rehabilitation, and
the terms and conditions of the treatment or rehabilitation. The
program shall be prepared by persons knowledgeable in the
diagnosis of alcohol or drug abuse and treatment. The cost of
the program shall be paid out of fees established by
the Commissioner of Motor Vehicles in cooperation with the Department
of Health and Human Resources, Division of Alcohol and Drug
Abuse. The program provider shall collect the established fee
from each participant upon enrollment. The program provider
shall also at the time of enrollment remit to the commissioner a
portion of the collected fee established by the
commissioner in
cooperation with the Department of Health and Human Resources:
which shall be deposited into an account designated 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 Provided,
That on and after the first day of July, two thousand eight, any
unexpended balance from fees collected under the provisions of
this section prior to the first day of July, two thousand eight
remaining in 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 under the
provisions of this section shall be deposited in an account
designated by the Secretary of the Department of Health and Human
Resources.
(2) The commissioner, after giving due consideration to the program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate
a motor vehicle in this state revoked under this article, or
section seven, article five of this chapter, or subsection (6),
section five, article three, chapter seventeen-b of this code,
which shall include successful completion of the educational,
treatment or rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ninety days have elapsed from the date of
the initial revocation, during which time the revocation was
actually in effect; (ii) the offender has successfully completed
the program; (iii) all costs of the program and administration
have been paid; and (iv) all costs assessed as a result of a
revocation hearing have been paid;
(B) When the period of revocation is for a period of
years
one year or for more than a year, the license to operate a motor
vehicle in this state shall not be reissued until: (i) At least
one half of such time period has elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a
revocation hearing have been paid.
Notwithstanding any provision in this code, a person revoked for refusing to take a secondary
chemical test as required by section seven, article five of this
chapter shall not be eligible to reduce the revocation period by
completing the safety and treatment program.
(C) When the period of revocation is for life, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ten years have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a
revocation hearing have been paid.
(D) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private
entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program, shall only have to certify that such person
has successfully completed the program.
(c) (1) The
Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall provide for the preparation of
an educational program for each person whose license has been
suspended for sixty days pursuant to the provisions of subsection
(l) (m), section two, article five-a of this chapter. The educational program shall consist of not less than twelve nor
more than eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered,
the license to operate a motor vehicle shall not be reinstated
until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect; (B) the offender has successfully completed the
educational program; (C) all costs of the program and
administration have been paid; and (D) all costs assessed as a
result of a suspension hearing have been paid.
(d) A required component of the rehabilitation program
provided
for in subsection (b) of this section and the education
program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program
providing a forum for victims of alcohol- and drug-related
offenses and offenders to share first-hand experiences on the
impact of alcohol- and drug-related offenses in their lives. The
commissioner Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse shall propose
legislative rules for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code to and implement
a plan for victim impact
panels where appropriate numbers of victims are available and
willing to participate and shall establish guidelines for other
innovative programs which may be substituted where such victims are not available, so as to assist persons whose licenses have
been suspended or revoked for alcohol- and drug-related offenses
to gain a full understanding of the severity of their offenses in
terms of the impact of such offenses on victims and offenders.
The
legislative rules proposed for promulgation by the
commissioner plan shall require, at a minimum, discussion and
consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial
relationships of victims or offenders; and
(E) Other information relating to the impact of alcohol- and
drug-related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall
contain provisions which The Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse shall ensure
that any meetings between victims and offenders shall be non-
confrontational and ensure the physical safety of the persons
involved.
§17C-5A-3a. Establishment of and participation in the Motor
Vehicle Alcohol Test and Lock Program.
(a) 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. 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. 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. 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.
(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 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
(l) (m), 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 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 will enroll in and
complete the educational program provided
for in subsection (c),
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 will 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, no person eligible to participate in the program under
this subsection may operate a motor vehicle unless approved to do
so by the commissioner.
(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 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
(f) (g), section two, article five of this
chapter or pursuant to subsection (i), section two of this
article, the minimum period of revocation for participation in
the test and lock program is
thirty fifteen days and the minimum
period for the use of the ignition interlock device is
five
months one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
refusal to submit to a designated secondary chemical test, the
minimum period of revocation for participation in the test and
lock program is
thirty forty-five days and the minimum period for
the use of the ignition interlock device is
nine months one year;
(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 is two hundred seventy days;
(3) (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 is two years;
(4) (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 is two years;
(5) (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
is one year;
(6) (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
(i)
(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
is ten months;
(d) Notwithstanding any provision of the code to the
contrary, a person shall participate in the 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 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
is two years, except that the minimum revocation period for a
person required to participate because of a violation of
subsection
(l) (m), section two of this article or subsection
(h)
(i), section two, article five of this chapter is two months and
the minimum period of participation is one year.
The division
will add an additional two months to the minimum period for the use of the ignition interlock device if the offense was committed
while a minor was in the vehicle. The division will add an
additional six months to the minimum period for the use of the
ignition interlock device if a person other than the driver
received injuries. The division will add an additional two years
to the minimum period for the use of the ignition interlock
device if a person other than the driver is injured and the
injuries result in that person's death. The division will add
one year to the minimum period for the use of the ignition
interlock device for each additional previous conviction or
revocation within the past ten years. Any person required to
participate under this subsection must have an ignition interlock
device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a
person revoked for driving under the influence of drugs is not
eligible to participate in the motor vehicle test and lock
program.
(e) (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; such is necessary for employment
purposes.
(f) (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.
(g) (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.
(h) (i) A person whose license has been suspended pursuant
to the provisions of subsection
(l) (m), 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.
(i) (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
such person's participation in the motor vehicle alcohol test and
lock program is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
the county or regional jail for a
period not less than one month nor more than six months and fined
not less than one hundred dollars nor more than five hundred
dollars. 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
the county or regional jail not
more than six months and fined not less than one hundred dollars
nor more than one thousand dollars:
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
such 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.
NOTE: The purpose of this bill is to make the interlock
program available to first time offenders while also increasing
incentives for participation in the program; increased periods on
the interlock program for aggravating circumstances involving a
second or subsequent DUI offense; reducing the administrative
penalties for driving with a suspended license; permitting
administrative hearing decisions to be based on the arresting
officer's affidavit; and requiring a mandatory blood alcohol
content test for all drivers involved in a motor vehicle crash
resulting in death or serious bodily injury.
Changes to criminal penalties include: removing the
mandatory 24 hour sentence for first offense DUI; creating an new
offense for individuals with a blood alcohol content of .15 or
greater; and reducing penalties for second offense driving with
suspended license.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.