H. B. 2196
(By Delegates Amores and Hunt)
[Introduced February 24, 1997; referred to the
Committee on the Judiciary.]
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
eligibility requirements for the test and lock program, and
establishing a review committee to evaluate a person's
compliance with the program.
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persons whose licenses have been revoked pursuant to this article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 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.
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(b) (1) Any person whose license has been revoked pursuant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 subsections subsection (a) or (b), section two,
article five of this chapter, or pursuant to the provisions of
subsections 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 is 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 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. The commissioner may establish and enter into
reciprocal agreements with other states that have interlock
programs of a like nature.
(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 one day following the day in
which the revocation actually takes effect, and the minimum
period for the use of the ignition interlock device is forty-two
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 one
day following the date on which the revocation actually takes
effect, and the minimum period for the use of the ignition
interlock device is two years forty-two months, 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 subsection (b) or (d), 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. Any
person who has been convicted of a first or second offense under
subsection (a), section three, article four, chapter seventeen-b
of this code is ineligible for entry into the test and lock
program for a period of thirty days. Any person who has been
convicted for a third offense under subsection (a), section
three, article four, chapter seventeen-b of this code is ineligible for entry into the test and lock program for a period
of six months;
(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.
(7) The commissioner may establish a review committee for
the purpose of reviewing an individual's driving record, safety,
and treatment program compliance history, and test and lock
program compliance history. The purpose of this committee is to
determine if a person who is participating in the test and lock
program should be required to participate for some period longer
than the minimum periods for the use of the ignition interlock
device as described in subdivisions (1), (2), (3) and (4)of this
subsection. Any recommendations made by this review committee
shall be based upon guidelines proposed by the commissioner and
shall be submitted to the commissioner, who shall approve or deny
the committee's recommendation.
(d) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to such the person, and
such the person shall be required to exhibit on demand, a
driver's license which shall reflect that such the 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 the person's participation in the motor
vehicle alcohol test and lock program shall be entitled to the
restoration of such the 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 (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 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 the 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 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 such the
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
the 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
the 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:
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 this is a condition of his or her employment.
NOTE: The purpose of this bill is to lessen the eligibility
requirements for the test and lock program, and to establish a
review committee to evaluate compliance with the program.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.