Senate Bill No. 579
(By Senators Weeks, Dempsey, Sharpe, McKenzie, Lanham, Boley,
Love, Caruth, Harrison, Guills and Barnes)
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[Introduced March 17, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §17C-5A-1, §17C-5A-1a, §17C-5A-2,
§17C-5A-2a, §17C-5A-3, §17C-5A-3a and §17C-5A-4 of the Code of
West Virginia, 1931, as amended, all relating to providing
for judicial procedures for suspension and revocation of
licenses for driving under the influence of alcohol,
controlled substances or drugs; eliminating the administrative
procedures for suspension and revocation; providing that a
judicial officer upon certain findings or a conviction shall
suspend or revoke a license for driving under the influence of
alcohol, controlled substances or drugs; providing a procedure
for judicial reinstatement of a suspended or revoked license;
and making certain technical changes.
Be it enacted by the Legislature of West Virginia:
That §17C-5A-1, §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3,
§17C-5A-3a and §17C-5A-4 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5.
JUDICIAL PROCEDURES FOR SUSPENSION AND REVOCATION OF
LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED
SUBSTANCES OR DRUGS.
§17C-5A-1. Implied consent to judicial 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 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 the name and address of the
person so arrested. 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. immediately take the person arrested for an initial
appearance before the magistrate or other judicial officer with
jurisdiction to hear the matter.
(c) If, upon examination of
the a written statement of the
officer and the tests results described in subsection (b) of this
section, the
commissioner magistrate or other judicial officer with
jurisdiction to hear the matter shall determine that a person was
arrested 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, 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 he or she was under the influence of alcohol,
controlled substances or drugs, the
commissioner magistrate or
other judicial officer with jurisdiction to hear the matter shall
make and enter an order
revoking suspending the person's license to
operate a motor vehicle in this state.
The driver shall
immediately surrender his or her license to operate a motor
vehicle, 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
magistrate or other judicial officer with jurisdiction to hear the
matter 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 given 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.
The clerk of the court shall forward the
surrendered driver's license along with a copy of the order to the
Commissioner. 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 be 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 tests
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 in 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-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or
drugs.
(a) If a person is convicted for an offense defined 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 that section because the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or the 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 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,
and if the person does not act to appeal the conviction within the
time periods described in subsection (b) of this section, the
person's license to operate a motor vehicle in this state shall be
revoked
or suspended in accordance with the provisions of this
section.
(b) The clerk of the court in which a person is convicted 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 forward
to the Commissioner a transcript of the judgment of conviction. If
the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward the transcript
and the revoked
license when the person convicted has not requested an appeal
within twenty days of the sentencing for such conviction. If the
conviction is the judgment of a mayor or police court judge or
municipal court judge, the clerk or recorder shall forward the
transcript
and the revoked license when the person convicted has
not perfected an appeal within ten days from and after the date
upon which the sentence is imposed. If the conviction is the
judgment of a circuit court, the circuit clerk shall forward the
transcript
and the revoked license when the person convicted has
not filed a notice of intent to file a petition for appeal or writ
of error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted 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
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the 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, the commissioner shall make and enter an order revoking the
person's license to operate a motor vehicle in this state. If the
commissioner determines that the person was convicted 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 and enter an order
suspending the person's license to operate a motor vehicle in this
state. The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods provided for in
section two of this article. Further, the order shall give the
procedures for requesting a hearing which is to be held in
accordance with the provisions of said section. The person shall
be advised in the order that because of the receipt of a transcript
of the judgment of conviction by the commissioner a presumption
exists that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment of conviction. A copy of the order shall be forwarded to the
person by registered or certified mail, return receipt requested.
No revocation or suspension shall become effective until ten days
after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order
reinstating the operator's license of the person has been entered
by the commissioner prior to the receipt of the transcript of the
judgment of conviction.
(e) (c) For the purposes of this section, a person is
convicted when the person enters a plea of guilty or is found
guilty by a court or jury.
§17C-5A-2. Conviction; revocation.
(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) 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.
(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 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) (a) If,
upon conviction, 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 magistrate or other judicial
officer with jurisdiction to hear the matter 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 magistrate or other judicial officer with
jurisdiction to hear the matter 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 magistrate or other judicial officer with
jurisdiction to hear the matter shall revoke the person's license
for a period of ten years:
Provided, That if the
commissioner
person's license has previously
been 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) (b) If,
upon conviction 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 magistrate or other judicial officer with jurisdiction
to hear the matter 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
magistrate or other judicial officer with jurisdiction to hear the
matter shall revoke the person's license for a period of five
years:
Provided, That if
the commissioner the person's license has
was 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) (c) If,
upon conviction, 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 magistrate or other judicial officer with jurisdiction
to hear the matter 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 magistrate or other judicial officer with
jurisdiction to hear the matter shall revoke the person's license
for a period of two years:
Provided, That if
the commissioner the
person's license has was 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 the person's license
has was 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) (d) If,
upon conviction, the
commissioner magistrate or
other judicial officer with jurisdiction to hear the matter 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,
the
commissioner magistrate or other judicial officer with
jurisdiction to hear the matter shall revoke the person's license
for a period of six months:
Provided, That if
the commissioner the
person's license has was 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 the person's license
has was 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) (e) If,
upon conviction, 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 magistrate or other judicial officer with jurisdiction to hear the matter 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 magistrate or other judicial
officer with jurisdiction to hear the matter further finds that the
alcohol concentration in the blood was a contributing cause to the
death, the
commissioner magistrate or other judicial officer with
jurisdiction to hear the matter shall revoke the person's license
for a period of five years:
Provided, That if
the commissioner the
person's license has was 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) (f) If,
upon conviction, 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 magistrate
or other judicial officer with jurisdiction to hear the matter 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 magistrate or other judicial officer with jurisdiction
to hear the matter 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 the person's license has
been 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 the person's license has
been 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) (g) If,
upon conviction the
commissioner magistrate or
other judicial officer with jurisdiction to hear the matter 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 magistrate or other judicial
officer with jurisdiction to hear the matter shall suspend the
person's license for a period of sixty days:
Provided, That if
the commissioner the person's license has
been previously suspended or
revoked
the person's license under the provisions of this section
or section one of this article, the period of
suspension or
revocation shall be for one year, or until the person's
twenty-first birthday, whichever period is longer.
(m) (h) If,
upon conviction 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 magistrate or other judicial officer with jurisdiction
to hear the matter 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 magistrate or other judicial officer
with jurisdiction to hear the matter shall revoke the person's
license for a period of one year:
Provided, That if
the
commissioner the person's license has
been 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 the person's
license has
been 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) (i) For purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of criminal convictions or
previous administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any
previous 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) (j) In the case of a hearing wherein a person is accused
of refusing to submit to a designated secondary test, the
commissioner magistrate or other judicial officer with jurisdiction to hear the matter 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
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 that section.
(p) (k) If,
upon conviction the
commissioner magistrate or
other judicial officer with jurisdiction to hear the matter 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 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 magistrate or other judicial officer with jurisdiction
to hear the matter 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) (l) If the
commissioner magistrate or other judicial
officer with jurisdiction to hear the matter finds to the contrary
with respect to the above issues, the
commissioner magistrate or
other judicial officer with jurisdiction to hear the matter shall
rescind his or her earlier order of
suspension or revocation or
shall reduce the order of
suspension or 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 transcript of the hearing to the circuit court in less than
sixty days.
(r) (m) 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) 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-2a. No right to an administrative hearing.
The department of motor vehicles is hereby authorized and
required to assess witness costs at the same rate as witness fees
in circuit court and a docket fee of ten dollars for each hearing
request against any person filing a request for a hearing under
section two of this article who fails to appear, fails to have said
order rescinded or fails to have said order modified to a lesser
period of revocation.
All fees and costs collected hereunder shall be paid into a
special revenue account in the state treasury. The funds in said
account shall be used to pay or reimburse the various law-
enforcement agencies at the same rate as witnesses in circuit court
for the travel and appearance of its officers before the
commissioner or authorized deputy or agent pursuant to a hearing
request under the provisions of this article. The department shall
authorize payment to the law-enforcement agencies from said account
as the fees for a particular hearing request are received from the
person against whom the costs were assessed. The department shall
authorize transfer to an appropriate agency account from the
special account to pay costs of registered and certified mailings
and other expenses associated with the conduct of hearings under this article as the docket fee for a particular hearing request is
received from the person against whom the costs were assessed.
In the event judicial review results in said order being
rescinded or modified to a lesser period of revocation the costs
assessed shall be discharged. No person has a right to an
administrative hearing when his or her license is suspended or
revoked under the provisions of this article.
§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 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 of Motor Vehicles in cooperation with the Department
of Health and Human Resources,
which shall be deposited into an
account designated the driver's rehabilitation fund, which was
created by a prior enactment of this section and which is hereby
continued, to be used for the administration of the program.
(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 may 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,
the license to operate a motor vehicle in this state shall may not
be reissued until: (i) At least one half of such the 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.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this state shall may 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 the 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 Alcohol 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), 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 may 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) and the education program provided
for in subsection (c) 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 shall propose legislative rules for
promulgation in accordance with the provisions of chapter
twenty-nine-a of this code to implement 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
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 ensure that any meetings between victims
and offenders shall be nonconfrontational and ensure the physical
safety of the persons involved.
A reduction in the period of suspension or revocation is not
effective until a petition therefore has been submitted to and
granted by the court that suspended or revoked the license.
§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. Such The program shall
include the establishment of a user's fee for persons participating
in the program which shall be paid in advance and deposited into
the driver's rehabilitation 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. Such 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, such the person is
determined to be under the influence of alcohol.
(b)(1) Any person whose license has been revoked pursuant to
this article or the provisions of article five of this chapter is
eligible to participate in the program when such the person's
minimum revocation period, as specified by subsection (c) of this
section, has expired and such the person is enrolled in or has
successfully completed the safety and treatment program or presents
proof to the Commissioner within sixty days of receiving approval
to participate by the Commissioner that he or she is enrolled in a
safety and treatment program: Provided, That no person whose
license has been revoked pursuant to the provisions of section
one-a of this article for conviction of an offense defined in
subsection (a) or (b), section two, article five of this chapter,
or pursuant to the provisions of subsection (f) or (g), section two
of this article, shall be eligible for participation in the
program: Provided, however, That any person whose license is
revoked pursuant to this article or pursuant to article five of
this chapter for an act which occurred either while participating
in or after successfully completing the program shall not again be
eligible to participate in such the program.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), 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 shall be 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 thereafter 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 shall
operate a motor vehicle unless approved to do so by the
Commissioner.
(c) For purposes of this section, "minimum revocation period"
means the portion which has actually expired of the period of
revocation imposed by the Commissioner pursuant to this article or
the provisions of article five of this chapter upon a person
eligible for participation in the program 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 section
two, article five of this chapter, or pursuant to subsection (i),
section two of this article, the minimum period of revocation
before such the person is eligible for participation in the test
and lock program is thirty days, and the minimum period for the use
of the ignition interlock device is five months, or that period
described in subdivision (1), subsection (e) of this section,
whichever period is greater;
(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 before such the person is eligible for
participation in the test and lock program is thirty days, and the
minimum period for the use of the ignition interlock device is nine months, or the period set forth in subdivision (1), subsection (e)
of this section, whichever period is greater;
(3) For a person whose license has been revoked for a second
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in section two, article five
of this chapter, or pursuant to section two of this article, the
minimum period of revocation before such the person is eligible for
participation in the test and lock program is nine months, and the
minimum period for the use of the ignition interlock device is
eighteen months, or that period set forth in subdivision (2),
subsection (e) of this section, whichever period is greater;
(4) For a person whose license has been revoked for any other
period of time pursuant to the provisions of section one-a of this
article for conviction of an offense defined in section two,
article five of this chapter, or pursuant to section two of this
article or pursuant to section seven, article five of this chapter,
the minimum period of revocation is eighteen months, and the
minimum period for the use of the ignition interlock device is two
years, or that period set forth in subdivision (3), subsection (e)
of this section, whichever period is greater;
(5) An applicant for the test and lock program must 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 two-year period preceding the date of application for admission to the test
and lock program;
(6) The Commissioner is hereby authorized to allow individuals
in the test and lock program an additional device or devices if
such is necessary for employment purposes.
(d) Upon permitting an eligible person to participate in the
program, the Commissioner shall issue to such the person, and such
person who shall be required to exhibit on demand, a driver's
license which shall reflect that such person is restricted to the
operation of a motor vehicle which is equipped with an approved
motor vehicle alcohol test and lock system.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
Commissioner of such person's participation in the Motor Vehicle
Alcohol Test and Lock Program shall be entitled to the restoration
of such person's may petition the court that suspended or revoked
his or her driver's license for restoration of his or her driver's
license upon the expiration of:
(1) One hundred eighty days of the full revocation period
imposed by the commissioner for a person described in subdivision
(1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner for
a person described in subdivision (3), subsection (c) of this
section;
(3) One year from the date a person described in subdivision
(4), subsection (c) of this section is permitted to operate a motor
vehicle by the Commissioner.
(f) A person whose license has been suspended pursuant to the
provisions of subsection (l), section two of this article, who has
completed the educational program, and who has not violated the
terms required by the Commissioner of such the person's
participation in the Motor Vehicle Alcohol Test and Lock Program
shall be entitled to may petition the court that suspended or
revoked his or her driver's license for 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 shall be entitled to expungement
under the provisions of this subsection only once. The expungement
shall be accomplished by physically marking the records to show
that such records they have been expunged and by securely sealing
and filing the records. Expungement shall have the legal effect as
if the suspension never occurred. The records shall 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 such information does not divulge the identity of the
person.
(g) 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
assists another person required by the terms of such other person's
participation in the Motor Vehicle Alcohol Test and Lock Program to
use a motor vehicle alcohol test and lock system in any effort to
bypass the 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.
§17C-5A-4. Search for record of prior offenses by driver.
The Commissioner shall immediately upon receipt of the
statements required by section seven, article five of this chapter
and section one of this article record the date and time of day of
the receipt of such statements and shall forthwith cause a search
of the appropriate records of the department to be made for any
record of prior offenses under this article and such the
Commissioner shall immediately report to the officer making such
the statement, an abstract showing any such prior offense, the date
thereof, the identity of any court in which any proceedings in
regard thereto were instituted and the disposition thereof.
+Any law-enforcement officer who fails to file the statements
required by this chapter within forty-eight hours of the arrest of
any person charged for any violation of section two, article five
of this chapter, or for any offense described in a municipal
ordinance which has the same elements as an offense described in
said section two, of article five, shall be guilty of a misdemeanor
and shall be subject to a fine of not less than twenty dollars nor
more than five hundred dollars. And if the commissioner shall
willfully fail to post by United States mail or other adequate
means of communication a written report addressed to the law-
enforcement officer of any such offense, as required by this
section, within a period of forty-eight hours after the receipt of
the statement, the commissioner shall be guilty of a misdemeanor
and shall be subject to a fine of not less than twenty dollars nor more than five hundred dollars.
NOTE: The purpose of this bill is to
eliminate the
administrative procedures for suspension and revocation of a
driver's license
for driving under the influence of alcohol,
controlled substances or drugs
and to provide instead for a
judicial procedure for suspending and revoking the license of a
person arrested or convicted of
driving under the influence of
alcohol, controlled substances or drugs
. The bill also provides a
procedure for the court to reinstate the driver's license of a
person who completes a rehabilitation program.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.