H. B. 4023
(By Mr. Speaker, (Mr. Thompson) and Delegate Armstead)
[By Request of the Executive]
[Introduced January 10, 2008; referred to the
Committee on Education then Judiciary.]
A BILL to amend and reenact §17B-2-3a of the Code of West Virginia,
1931, as amended; to amend and reenact §17B-3-6 of said
code; and to amend and reenact §18-8-11 of said code, all
relating to the denial or suspension of the driver's license
of any student between the ages of fifteen and eighteen who
withdraws from school or fails to receive passing grades.
Be it enacted by the Legislature of West Virginia:
That §17B-2-3a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17B-3-6 of said code be amended and
reenacted; and that §18-8-11 of said code be amended and reenacted,
all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION, AND RENEWAL.
§17B-2-3a. Graduated driver's license.
(a) Any person under the age of eighteen may not operate a motor vehicle unless he or she has obtained a graduated driver's
license in accordance with the three-level graduated driver's
license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of
class or level of licensure, who operates a motor vehicle with any
measurable alcohol in his or her system is subject to the
provisions of section two, article five, chapter seventeen-c of
this code and section two, article five-a of said chapter. Any
person under the age of eighteen, regardless of class or licensure
level, is subject to the mandatory school attendance and
satisfactory academic progress provisions of section eleven,
article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is
fifteen years or older meeting all other requirements prescribed in
this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one
instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the
provisions of section six of this article, and which is accompanied
by a writing, duly acknowledged, consenting to the issuance of the
graduated driver's license and executed by a parent or guardian
entitled to custody of the applicant;
(B) Presents a certified birth certificate issued by a state
or other governmental entity responsible for vital records, evidencing that the applicant meets the minimum age requirement;
(C) Passes the vision and written knowledge examination and
completes the driving under the influence awareness program, as
prescribed in section seven of this article;
(D) Presents a current school enrollment form Driver's
Eligibility Certificate or otherwise shows compliance with the
provisions of section eleven, article eight, chapter eighteen of
this code; and
(E) Pays a fee of five dollars.
(2) Terms and conditions of instruction permit. -- A level one
instruction permit issued under the provisions of this section is
valid until thirty days after the date the applicant attains the
age of eighteen and is not renewable. However, any permit holder
who allows his or her permit to expire prior to successfully
passing the road skills portion of the driver examination, and who
has not committed any offense which requires the suspension,
revocation or cancellation of the instruction permit, may reapply
for a new instruction permit under the provisions of section six of
this article. The division shall immediately revoke the permit
upon receipt of a second conviction for a moving violation of
traffic regulations and laws of the road or violation of the terms
and conditions of a level one instruction permit, which convictions
have become final unless a greater penalty is required by this
section or any other provision of this code. Any person whose instruction permit has been revoked is disqualified from retesting
for a period of ninety days. However, after the expiration of
ninety days, the person may retest if otherwise eligible. In
addition to all other provisions of this code for which a driver's
license may be restricted, suspended, revoked or canceled, the
holder of a level one instruction permit may only operate a motor
vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver,
twenty-one years of age or older, or a driver's education or
driving school instructor who is acting in an official capacity as
an instructor, who is fully alert and unimpaired, and the only
other occupant of the front seat. The vehicle may be operated with
no more than two additional passengers, unless the passengers are
family members;
(B) Between the hours of five a.m. and eleven p.m.;
(C) All occupants must use safety belts in accordance with the
provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Without any measurable blood alcohol content, in
accordance with the provisions of subsection (h), section two,
article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen of this code.
(F) A holder of a level one instruction permit who is under
the age of eighteen years may not use a wireless communication
device while operating a motor vehicle, unless the use of the
wireless communication device is for contacting a 9-1-1 system. A
law-enforcement officer may enforce the provisions of this
paragraph only as a secondary action when a law-enforcement officer
with probable cause detains a driver for a suspected violation of
another provision of this code. A person violating the provisions
of this paragraph is guilty of a misdemeanor and, upon conviction
thereof, shall for the first offense be fined twenty-five dollars;
for a second offense be fined fifty dollars; and for a third or
subsequent offense be fined seventy-five dollars.
(d) Level two intermediate driver's license. -- An applicant
sixteen years of age or older, meeting all other requirements of
the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two
intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section
six of this article;
(B) Has held the level one instruction permit conviction-free
for the one hundred eighty days immediately preceding the date of
application for a level two intermediate license;
(C) Has completed either a driver's education course approved by the State Department of Education or thirty hours of
behind-the-wheel driving experience certified by a parent or legal
guardian or other responsible adult over the age of twenty-one as
indicated on the form prescribed by the division: Provided, That
nothing in this paragraph shall be construed to require any school
or any county board of education to provide any particular number
of driver's education courses or to provide driver's education
training to any student;
(D) Presents a current school enrollment form Driver's
Eligibility Certificate or otherwise shows compliance with the
provisions of section eleven, article eight, chapter eighteen of
this code;
(E) Passes the road skills examination as prescribed by
section seven of this article; and
(F) Pays a fee of five dollars.
(2) Terms and conditions of a level two intermediate driver's
license. -- A level two intermediate driver's license issued under
the provisions of this section shall expire thirty days after the
applicant attains the age of eighteen, or until the licensee
qualifies for a level three full Class E license, whichever comes
first. In addition to all other provisions of this code for which
a driver's license may be restricted, suspended, revoked or
canceled, the holder of a level two intermediate driver's license
may only operate a motor vehicle under the following conditions:(A) Unsupervised between the hours of five a.m. and eleven p.m.;
(B) Only under the direct supervision of a licensed driver,
age twenty-one years or older, between the hours of eleven p.m. and
five a.m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to
operate a motor vehicle to prevent bodily injury or death of
another;
(C) All occupants shall use safety belts in accordance with
the provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers
under the age of nineteen, unless the passengers are family
members, in addition to the driver;
(E) Without any measurable blood alcohol content in accordance
with the provisions of subsection (h), section two, article five,
chapter seventeen-c of this code;
(F) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen
of this code;
(G) A holder of a level two intermediate driver's license who is under the age of eighteen years may not use a wireless
communication device while operating a motor vehicle, unless the
use of the wireless communication device is for contacting a 9-1-1
system. A law-enforcement officer may enforce the provisions of
this paragraph only as a secondary action when a law-enforcement
officer with probable cause detains a driver for a suspected
violation of another provision of this code. A person violating
the provisions of this paragraph is guilty of a misdemeanor and,
upon conviction thereof, shall for the first offense be fined
twenty-five dollars; for a second offense be fined fifty dollars;
and for a third or subsequent offense be fined seventy-five dollars.
(H) Upon the first conviction for a moving traffic violation
or a violation of paragraph (A), (B), (C), (D) or (G), subdivision
(1), subsection (d) of this section of the terms and conditions of
a level two intermediate driver's license, the licensee shall
enroll in an approved driver improvement program unless a greater
penalty is required by this section or by any other provision of
this code.
At the discretion of the commissioner, completion of an
approved driver improvement program may be used to negate the
effect of a minor traffic violation as defined by the commissioner
against the one year conviction-free driving criteria for early
eligibility for a level three driver's license; and
(I) Upon the second conviction for a moving traffic violation or a violation of the terms and conditions of the level two
intermediate driver's license, the licensee's privilege to operate
a motor vehicle shall be revoked or suspended for the applicable
statutory period or until the licensee's eighteenth birthday,
whichever is longer unless a greater penalty is required by this
section or any other provision of this code. Any person whose
driver's license has been revoked as a level two intermediate
driver, upon reaching the age of eighteen years and if otherwise
eligible may reapply for an instruction permit, then a driver's
license in accordance with the provisions of sections five, six and
seven of this article.
(e) Level three, full Class E license. -- The level three
license is valid until the day designated by the commissioner of
the month in which the licensee attains the age of twenty-one.
Unless otherwise provided in this section or any other section of
this code, the holder of a level three full Class E license is
subject to the same terms and conditions as the holder of a regular
Class E driver's license.
A level two intermediate licensee whose privilege to operate
a motor vehicle has not been suspended, revoked or otherwise
canceled and who meets all other requirements of the code may be
issued a level three full Class E license without further
examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and(A) Presents a completed application as prescribed by the
provisions of section six of this article;
(B) Has held the level two intermediate license conviction
free for the twelve-month period immediately preceding the date of
the application;
(C) Has completed any driver improvement program required
under paragraph (G), subdivision (2), subsection (d) of this
section; and
(D) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code; or
(E) Presents a Driver's Eligibility Certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article; and
(B) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code.
ARTICLE 3. CANCELLATION, SUSPENSION, OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license;
hearing.
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a showing by
its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of
a driver's license is required upon conviction;
(2) Has by reckless or unlawful operation of a motor vehicle,
caused or contributed to an accident resulting in the death or
personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to indicate a disrespect for traffic laws and a disregard for the
safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor
vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if
committed in this state would be a ground for suspension or revocation;
(7) Has failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by a
magistrate court or municipal court within ninety days, as required
by section two-a, article three, chapter fifty or section two-a, article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a
magistrate court or municipal court when charged with a motor
vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either
voluntarily or involuntarily from a secondary school or has failed
to maintain satisfactory academic progress, as provided in section
eleven, article eight, chapter eighteen of this code; or
(10) Has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court has ordered the suspension of the
license as provided in article five-a, chapter forty-eight-a of
this code and the child support enforcement division has forwarded
to the division a copy of the court order suspending the license,
or has forwarded its certification that the licensee has failed to
comply with a new or modified order that stayed the suspension and
provided for the payment of current support and any arrearage due.
(b) The driver's license of any person having his or her
license suspended shall be reinstated if:
(1) The license was suspended under the provisions of
subdivision (7), subsection (a) of this section and the payment of
costs, fines, forfeitures or penalties imposed by the applicable
court has been made;
(2) The license was suspended under the provisions of subdivision (8), subsection (a) of this section, and the person
having his or her license suspended has appeared in court and has
prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of
subdivision (10), subsection (a) of this section, and the division
has received a court order restoring the license or a certification
by the child support enforcement division that the licensee is
complying with the original support order or a new or modified
order that provides for the payment of current support and any
arrearage due.
(c) Any reinstatement of a license under subdivision (1), (2)
or (3), subsection (b) of this section shall be subject to a
reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as
hereinbefore in this section authorized, the division shall
immediately notify the licensee in writing, sent by certified mail,
return receipt requested, to the address given by the licensee in
applying for license, and upon his request shall afford him an
opportunity for a hearing as early as practical within not to
exceed twenty days after receipt of such request in the county
wherein the licensee resides unless the division and the licensee
agree that such hearing may be held in some other county. Upon
such hearing the commissioner or his duly authorized agent may
administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may
require a reexamination of the licensee. Upon such hearing the
division shall either rescind its order of suspension or, good
cause appearing therefor, may extend the suspension of such license
or revoke such license. The provisions of this subsection (d)
providing for notice and hearing are not applicable to a suspension
under subdivision (10), subsection (a) of this section.
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-11. School attendance and satisfactory academic progress as
conditions 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 sections
three-a 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 the certificate; (2) is enrolled and is making satisfactory academic progress in a secondary school of
this state or any other state; (3) is excused from the requirement
due to severe hardship resulting from 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 upon
request provide documentation of enrollment status a Driver's
Eligibility Certificate on a form approved by the Department of
Education to any student at least fifteen but less than eighteen
years of age upon request who is properly enrolled and is making
satisfactory academic progress in a school under the jurisdiction
of the 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 at least
fifteen but less than eighteen years of age, except as provided in
subsection (d) of this section, withdraws from school, the
attendance director or chief administrator shall notify the
Division of Motor Vehicles of the withdrawal not later than five
days from the withdrawal date. Within five days of receipt of the
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 Division of Motor Vehicles before that time. If
suspended, the division may not reinstate a license before the end
of the semester following that in which the withdrawal occurred.
(c) Whenever a student at least fifteen but less than eighteen
years of age, except as provided in subsection (g) of this section,
withdraws from school, the attendance director or chief
administrator shall notify the Division of Motor Vehicles of the
student's withdrawal no later than five days from the date of the
withdrawal. Within five days of receipt of the notice, the
Division of Motor Vehicles shall send notice to the student that
the student's instruction permit or license to operate a motor
vehicle will be suspended under the provisions of section six,
article three, 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
Division of Motor Vehicles before that time. The notice shall also
advise the student that he or she is entitled to a hearing before
the county superintendent of schools or his or her designee or
before the appropriate private school official concerning whether
the student's withdrawal from school was due to severe hardship
resulting from circumstances beyond the control of the student. If
suspended, the division may not reinstate an instruction permit or
license until such time as the student returns to school and shows
satisfactory academic progress or until such time as the student attains eighteen years of age.
(d) Whenever a student at least fifteen but less than eighteen
years of age, except as provided in subsection (g) of this section,
is enrolled in a secondary school and fails to maintain
satisfactory academic progress, the attendance director or chief
administrator shall follow the procedures set out in subsection (c)
to notify the Division of Motor Vehicles. Within five days of
receipt of the notice, the Division of Motor Vehicles shall send
notice to the student that the student's instruction permit or
license will be suspended under the provisions of section six,
article three, 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
Division of Motor Vehicles before that time. The notice shall also
advise the student that he or she is entitled to a hearing before
the county superintendent of schools or his or her designee or
before the appropriate private school official concerning whether
the student's failure to make satisfactory academic progress was
due to severe hardship resulting from circumstances beyond the
control of the student. If suspended, the division may not
reinstate an instruction permit or license until such time as the
student shows satisfactory academic progress or until such time as
the student attains eighteen years of age.
(e) Upon written request of a student, within ten days of receipt of a notice of suspension as provided by this section, the
Division of Motor Vehicles shall afford the student the opportunity
for an administrative hearing. The scope of the hearing shall be
limited to determining if there is a question of improper identity,
incorrect age, or some other bookkeeping error.
(c) (f) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or
fifteen total days unexcused absences during a school year, or
suspension pursuant to subsections (a) and (b) of section one-a,
article five, chapter eighteen-a of this code.
(2) Satisfactory academic progress is defined as a grade point
average of at least 2.0 on a 4.0 grading scale at the conclusion of
any grading period.
(2) (3) Suspension or expulsion from school or imprisonment in
a jail or a West Virginia correctional facility is not a
circumstance severe hardship resulting from circumstances beyond
the control of the person student.
(d) (g) Whenever the withdrawal from school of the student, or
the student's failure to enroll in a course leading to or to obtain
a GED or high school diploma, is or the student's failure to make
satisfactory academic progress is due to severe hardship resulting
from circumstances beyond the control of the student, or the
withdrawal from school is for the purpose of transfer to another
school as confirmed in writing by the student's parent or guardian, no notice shall be sent to the 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 Division of Motor Vehicles to excuse the 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 withdrawal is due to circumstances beyond the
control of the person any of the grounds for denial or suspension
of a license as provided by this section are due to severe hardship
resulting from circumstances beyond the control of the student.
NOTE: The purpose of this bill is to provide for the denial or
suspension of a driver's license for any student who withdraws from
school or fails to receive passing grades.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.