COMMITTEE SUBSTITUTE
FOR
H. B. 2085
(By Delegates Smirl, Johnson, Jenkins and Hubbard)
(Originating in the House Committee on the Judiciary)
[February 17, 1995]
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; and to amend
and reenact section eleven, article eight, chapter eighteen
of said code, all relating to denial, revocation or
suspension of operator's licenses; providing for
administrative procedures for suspension and revocation of
licenses for driving under the influence of alcohol,
controlled substances or drugs; providing that a plea of no
contest or nolo contendere is a conviction for purposes of
revocation of license; requiring school attendance as
condition for licensing for privilege of operation of motor vehicle; and providing that enrollment in an institution of
higher education qualifies a person under the age of
eighteen to be issued a license or instruction permit.
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; and that section eleven,
article eight, chapter eighteen of said code be amended and
reenacted, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
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.
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-11. School attendance as condition of licensing for
privilege of operation of motor vehicle.
(a) In accordance with the provisions of sections three and
five, article two, chapter seventeen-b of this code, the division
of motor vehicles shall deny a license or instruction permit for
the operation of a motor vehicle to any person under the age of
eighteen who does not at the time of application present a
diploma or other certificate of graduation issued to the person
from a secondary high school of this state or any other state or
documentation that the person: (1) Is enrolled and making satisfactory progress in a course leading to a general
educational development certificate (GED) from a state approved
institution or organization, or has obtained such certificate;
(2) is enrolled in a secondary school of this state or any other
state; or (3) is excused from such requirement due to
circumstances beyond his or her control; or (4) is enrolled in an
institution of higher education as a full-time student in this
state or any other state.
(b) The attendance director or chief administrator shall
provide documentation of enrollment status on a form approved by
the department of education to any student sixteen years of age
or older upon request who is properly enrolled in a school under
the jurisdiction of said official for presentation to the
division of motor vehicles on application for or reinstatement
of an instruction permit or license to operate a motor vehicle.
Whenever a student sixteen years of age or older withdraws from
school, except as provided in subsection (d) of this section,
the attendance director or chief administrator shall notify the
division of motor vehicles of such withdrawal not later than five
days from the withdrawal date. Within five days of receipt of
such notice, the division of motor vehicles shall send notice to the licensee that the license will be suspended under the
provisions of section three, article two, chapter seventeen-b of
this code on the thirtieth day following the date the notice was
sent unless documentation of compliance with the provisions of
this section is received by the department division of motor
vehicles before such time.
(c) For the purposes of this section, withdrawal shall be
defined as more than ten consecutive or fifteen days total
unexcused absences during a single semester. For the purposes of
this section, suspension or expulsion from school or imprisonment
in a jail or a penitentiary is not a circumstance beyond the
control of such person.
(d) Whenever the withdrawal from school of such student, or
such student's failure to enroll in a course leading to or to
obtain a GED or high school diploma, is beyond the control of
such student, or is for the purpose of transfer to another school
as confirmed in writing by the student's parent or guardian, no
such notice shall be sent to the department division of motor
vehicles to suspend the student's motor vehicle operator's
license, and if the student is applying for a license, the
attendance director or chief administrator shall provide the student with documentation to present to the department division
of motor vehicles to excuse such student from the provisions of
this section. The school district superintendent (or the
appropriate school official of any private secondary school) with
the assistance of the county attendance director and any other
staff or school personnel shall be the sole judge of whether such
withdrawal is due to circumstances beyond the control of such
person.