H. B. 2085
(By Delegates Smirl, Johnson, Jenkins and Hubbard)
[Introduced January 19, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section one-a, article five-a,
chapter seventeen-c of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
administrative procedures for suspension and revocation of
licenses for driving under the influence of alcohol,
controlled substances or drugs; and providing that a plea of
no contest or nolo contendere is a conviction for purposes
of revocation of license.
Be it enacted by the Legislature of West Virginia:
That section one-a, article five-a, chapter seventeen-c of
the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§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 section two of article five, 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 alcoholic concentration in
his or her blood of ten 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 ten 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 two of article five, 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 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 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 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 two of article five, 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 alcoholic concentration in his or her blood of
ten 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 ten 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 section two of this
article. 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) For the purposes of this section, a person is convicted
when the person enters a plea of guilty, a plea of no contest or
nolo contendere, or is found guilty by a court or jury.
NOTE: The purpose of this bill is to provide that a plea of
no contest or nolo contendere is a conviction for purposes of
revocation of drivers license in an administrative hearing for
DUI.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.