COMMITTEE SUBSTITUTE
FOR
H. B. 2272
(By Delegate Love)
(Originating in the House Committee on the Judiciary)
[March 1, 1995]
A BILL to amend and reenact section three-a, article five-a,
chapter seventeen-c of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
expanding the availability of the motor vehicle test and
lock program to additional persons whose licenses to
operate a motor vehicle have been suspended or revoked for
offenses related to driving under the influence of
alcohol, controlled substances or drugs.
Be it enacted by the Legislature of West Virginia:
That section three-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-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persons whose licenses have been revoked pursuant to this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 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.
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 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 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
person's minimum revocation period as specified by subsection
(c) of this section has expired and such 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 subsections (a) or (b),
section two, article five of this chapter, or pursuant to the
provisions of subsections (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 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 ten 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 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 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 one
year 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 is ninety days;
before such 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
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;
(3) (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 one year. 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;
(d) Upon permitting an eligible person to participate in
the program, the commissioner shall issue to such person, and
such person 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 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 (2) (3), subsection (c)
of this section;
(3) One year from the date a person described in
subdivision (3) (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
person's participation in the motor vehicle alcohol test and
lock program shall be 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 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 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 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 jail not more than six months and fined not less
than one hundred dollars nor more than one thousand dollars.