H. B. 3192
(By Delegates Eldridge, Yost, Staggers and Stemple)
[Introduced January 9, 2008; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §17B-4-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §17C-5-2, §17C-5-2a,
§17C-5-4, §17C-5-6, §17C-5-6a, §17C-5-7, §17C-5-8 of said
code; to amend and reenact, §17C-5A-1, §17C-5A-1a, §17C-5A-2,
§17C-5A-2a, §17C-5A-3 and §17C-5A-3a of said code; to amend
said code by adding thereto a new section, designated
§17C-5-4a; and to amend said code by adding thereto a new
section, designated §17C-5A-3b, all relating generally to the
criminal penalties for driving while suspended or revoked, for
driving under the influence of alcohol, controlled substances
or drugs; describing where driving under the influence of
alcohol, controlled substances or drugs is prohibited;
requiring driver's to submit to evidentiary breath tests and
secondary chemical test; requiring mandatory chemical test
when death or injury occurs; setting forth requirements for blood tests; setting forth requirements for taking a child
into custody for driving with any amount of blood alcohol;
setting forth requirements for revoking a license for refusing
an evidentiary breath test or a secondary chemical test;
setting forth requirements for the admission of chemical tests
into evidence; requiring the commissioner to revoke licenses
upon receipt of a report from a law-enforcement officer;
requiring the commissioner to revoke license upon receipt of
a conviction; setting forth procedures to appeal license
revocations; authorizing fees; requiring a safety and
treatment program for persons with licenses revoked for
driving under the influence; requiring the alcohol test and
lock program; and establishing a provisional driving permit.
Be it enacted by the Legislature of West Virginia:
That §17B-4-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2, §17C-5-2a, §17C-5-4,
§17C-5-6, §17C-5-6a, §17C-5-7, §17C-5-8, of said code be amended
and reenacted; that §17C-5A-1, §17C-5A-1a, §17C-5A-2, §17C-5A-2a,
§17C-5A-3 and §17C-5A-3a of said code be amended and reenacted;
that said code be amended by adding thereto a new section,
designated §17C-5-4a; and that said code be amended by adding
thereto a new section, designated §17C-5A-3b, all to read as
follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the
influence of alcohol, controlled substances or
drugs, or while having alcoholic concentration in
the blood of eight hundredths of one percent or
more, by weight, or for refusing to take evidentiary
breath test or secondary chemical test of blood
alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of
this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended or revoked by this state or any other
jurisdiction is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the second
offense, the person is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in a county or regional jail for a
period of actual confinement of not less than ten days nor more
than thirty days and, in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than five
hundred dollars; for the third or any subsequent offense, the
person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in a county or regional jail for a period of actual confinement of not less than thirty days nor more than six
months and in addition to the mandatory jail sentence, shall be
fined not less than one hundred fifty dollars nor more than five
hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or any combination
there, or for driving while having an alcoholic concentration in
his or her blood of eight hundredths of one percent or more, by
weight, or for refusing to take either or both an evidentiary
breath test or a secondary chemical test of blood alcohol content
or urine, is, for the first offense, guilty of a misdemeanor and,
upon conviction thereof, shall be confined in a county or regional
jail for a period of actual confinement of not less than thirty
days nor more than six months and in addition to the mandatory jail
sentence, shall be fined not less than one hundred dollars nor more
than five hundred dollars; for the second offense, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in a county or regional jail for a period of actual
confinement of not less than six months nor more than one year and
in addition to the mandatory jail sentence, shall be fined not less
than one thousand dollars nor more than three thousand dollars; for
the third or any subsequent offense, the person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one year nor more than
three years and, in addition to the mandatory prison sentence,
shall be fined not less than three thousand dollars nor more than
five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section upon
a charge of driving a vehicle while the license of such person was
lawfully suspended or revoked, the division shall extend the period
of such suspension or revocation for an additional period of one
year from and after the date such person would otherwise have been
entitled to apply for a new license. Upon receiving a record of
the second or subsequent conviction of any person under subsection
(a) of this section upon a charge of driving a vehicle while the
license of such person was lawfully suspended or revoked, the
division shall extend the period of such suspension or revocation
for an additional period of one year from and after the date such
person would otherwise have been entitled to apply for a new
license.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended for driving 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 eight hundredths of one percent, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in a
county or regional jail for twenty-four hours or shall be fined not
less than fifty dollars nor more than five hundred dollars, or
both.
(e) The minimum sentences provided of actual incarceration
required herein upon conviction for a violation of this article
are mandatory and may not be subject to suspension or probation:
Provided, That an order for home detention by the court pursuant to
the provisions of article eleven-b, chapter sixty-two of this code
may be used as an alternative sentence to any period of
incarceration required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than one
nor more than ten years and shall be fined not less than one
thousand dollars nor more than three thousand dollars.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than ninety days nor more than
one year and shall be fined not less than five hundred dollars nor
more than one thousand dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for not less than one day nor more than one year, which jail
term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than two hundred dollars nor
more than one thousand dollars.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; and
(2) When so driving:
(A) Has an alcohol concentration in his or her blood of
fifteen hundredths of one percent or more, by weight; or
(B) Does so in willful or wanton disregard for the safety of
persons or property, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the jail for not less than
ten days nor more than one year, which jail term is to include
actual confinement of not less than ten days, and shall be fined
not less than two hundred dollars nor more than one thousand
dollars.
(d) (e) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(e) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state, is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not less than
one day nor more than six months, which jail term is to include
actual confinement of not less than twenty-four hours, and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(f) Any person who:
(1) Drives a vehicle in this state when otherwise lawfully
permitted to do so pursuant to the provisions of section three-a or
three-b, article five-a of this chapter while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of four
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the jail for not less than ninety days nor
more than nine months, which jail term is to include actual
confinement of not less than ninety days, and shall be fined not
less than two hundred fifty dollars nor more than seven hundred
fifty dollars.
(f) (g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in the county or regional jail for not more than
six months and shall be fined not less than one hundred dollars nor
more than five hundred dollars.
(g) (h) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; and
(2) When so driving:
(A) Has an alcohol concentration in his or her blood of
fifteen hundredths of one percent or more, by weight; or
(B) Does so in willful or wanton disregard for the safety of
persons or property, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
day nor more than six months, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than two hundred dollars nor more than one thousand
dollars.
who is an habitual user of narcotic drugs or amphetamine or
any derivative thereof, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in the county or regional
jail for not more than six months and shall be fined not less than
one hundred dollars nor more than five hundred dollars.
(h) (i) Any person under the age of twenty-one years who
drives a vehicle in this state while he or she has an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent, by weight, for a first offense under this subsection, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in the county or regional jail for twenty-four hours, and
shall be fined not less than one hundred dollars nor more than five
hundred dollars. A person who is charged with a first offense
under the provisions of this subsection may move for a continuance
of the proceedings, from time to time, to allow the person to
participate in the vehicle alcohol test and lock program as
provided for in section three-a, article five-a of this chapter.
Upon successful completion of the program, the court shall dismiss
the charge against the person and expunge the person's record as it
relates to the alleged offense. In the event the person fails to
successfully complete the program, the court shall proceed to an
adjudication of the alleged offense. A motion for a continuance
under this subsection may not be construed as an admission or be
used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g), (h) or
(i) (j) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.
(i) (j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional jail for not less than two days nor more than
twelve months, which jail term is to include actual confinement of
not less than forty-eight hours, and shall be fined not less than
two hundred dollars nor more than one thousand dollars.
(j) (k) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g), (h), or (I) or (j) of this section, for
the second offense under this section, is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in the county or
regional jail for not less than six months nor more than one year,
and the court may, in its discretion, impose a fine of not less
than one thousand dollars nor more than three thousand dollars.
(k) (l) A person violating any provision of subsection (b),
(c), (d), (e), (f), (g), (h) or (I) or (j) of this section, for the
third or any subsequent offense under this section, is guilty of a
felony and, upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years, and the court may, in its discretion, impose a fine of not
less than three thousand dollars nor more than five thousand
dollars.
(l) (m) For purposes of subsections (j) (k) and (k) (l) of
this section relating to second, third and subsequent offenses, the
following types of convictions are to be regarded as convictions
under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), or (f), (g) or (h) of this section or under a
prior enactment of this section for an offense which occurred
within the ten-year period immediately preceding the date of arrest
the offense in the current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements as an offense
described in subsection (a), (b), (c), (d), (e), (f), or (g) or (h)
of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest the offense in the current
proceeding;
(3) Provided, That in no event shall the ten year period of
limitation apply to any person previously convicted of a third or
subsequent offense under the provisions of subsection (a), (b),
(c), (d), (e), (f), (g) or (h) of this section or under a prior
enactment of this section, nor of a felony offense of a statute of
the United States or of any other state of an offense which has the
same elements as an offense described in subsection (a), (b), (c),
(d), (e), (f), (g) or (h) of this section.
(m) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(n) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), or (e), or (f) of this section, or
any person permitted to drive as described under subsection (f), or
(g) or (h) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug does not constitute a defense against any charge of violating subsection (a), (b), (c),
(d), (e), (f), or (g) or (h) of this section.
(o) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) The minimum sentences provided of actual incarceration
required herein upon conviction for a violation of this article
are mandatory and may not be subject to suspension or probation:
Provided, That the court may apply the provisions of article
eleven-a, chapter sixty-two of this code to a person sentenced or
committed to a term of one year or less for a first offense under
this section. An order for home detention by the court pursuant to
the provisions of article eleven-b of said chapter may be used as
an alternative sentence to any period of incarceration required by
this section for a first or subsequent offense: Provided, however,
That for any period of home incarceration ordered for a person
convicted of second offense under this section, electronic
monitoring shall be required for no fewer than five days of the
total period of home confinement ordered and the offender may not
leave home for those five days notwithstanding the provisions of
section five, article eleven-b, chapter sixty-two of this code:
Provided further, That for any period of home incarceration ordered
for a person convicted of a third or subsequent violation of this
section, electronic monitoring shall be included for no fewer than ten days of the total period of home confinement ordered and the
offender may not leave home for those ten days notwithstanding
section five, article eleven-b, chapter sixty-two of this code.
§17C-5-2a. Definition of phrase "in this state"; phrases
synonymous with driving under the influence of
alcohol; validation of warrants and indictments.
(a) For purposes of this article and article five-a of this
chapter, the phrase "in this state" shall mean anywhere within the
physical boundaries of this state. including, but not limited to,
publicly maintained streets and highways, and subdivision streets
or other areas not publicly maintained but nonetheless open to the
use of the public for purposes of vehicular travel.
(b) When used in this code, the terms or phrases "driving
under the influence of intoxicating liquor," "driving or operating
a motor vehicle while intoxicated," "for any person who is under
the influence of intoxicating liquor to drive any vehicle," or any
similar term or phrase shall be construed to mean and be synonymous
with the term or phrase "while under the influence of alcohol ...
drives a vehicle" as the latter term or phrase is used in section
two of this article.
(c) From and after the effective date of this section a
warrant or indictment which charges or alleges an offense,
prohibited by the provisions of section two of this article, and
which warrant or indictment uses any of the terms or phrases set forth in subsection (b) of this section, shall not thereby be
fatally defective if such warrant or indictment otherwise informs
the person so accused of the charges against him.
§17C-5-4. Implied consent to test
s; administration at direction of
law-enforcement officer; designation of types of test;
definition of law-enforcement officer; search
warrants.
(a) Any person who drives a motor vehicle in this state is
deemed to have given his or her consent by the operation of the
motor vehicle to a preliminary breath analysis, an evidentiary
breath test and a secondary chemical test of either his or her
blood breath or urine for the purposes of determining the
alcoholic, alcohol, any controlled substance, other drug or any
combination thereof, content of his or her blood.
(b) A preliminary breath analysis may be administered in
accordance with the provisions of section five of this article
whenever a law-enforcement officer has reasonable cause to believe
a person has committed an offense prohibited by section two of this
article or by an ordinance of a municipality of this state which
has the same elements as an offense described in section two of
this article.
(c) A An evidentiary secondary test of blood, breath or urine
is incidental to a lawful arrest and is to be administered at the
direction of the arresting law-enforcement officer having reasonable grounds to believe the person has committed an offense
prohibited by section two of this article or by an ordinance of a
municipality of this state which has the same elements as an
offense described in section two of this article.
(d) The law-enforcement agency that employs the law-
enforcement officer shall designate which type of secondary test is
to be administered: Provided, That if the test designated is a
blood test and the person arrested refuses to submit to the blood
test, then the law-enforcement officer making the arrest shall
designate either a breath or urine test to be administered.
Notwithstanding the provisions of section seven of this article,
the refusal to submit to a blood test only may not result in the
revocation of the arrested person's license to operate a motor
vehicle in this state. If the person arrested is unable to take,
or to complete, or to cooperate in the completing of an evidentiary
breath test because of injuries, illness, disease, physical
infirmity or physical incapacity, or if such person is receiving
medical treatment at a location at which an evidentiary breath
testing device is not available, the test shall be of such person's
blood or urine.
(e) Any person to whom a preliminary breath test is
administered who is then arrested shall be given a written
statement advising him or her that his or her refusal to submit to
the evidentiary breath test or the secondary chemical test pursuant to subsection (d) of this section, will result in the revocation of
his or her license to operate a motor vehicle in this state for a
period of at least one year and up to life.
(f) Any law-enforcement officer who has been properly trained
in the administration of any secondary chemical the evidentiary
breath test authorized by this article, including, but not limited
to, certification by the Division of Health in the operation of any
equipment required for the collection and analysis of a breath
sample, may conduct the test at any location in the county wherein
the arrest is made: Provided, That the law-enforcement officer
may conduct the test at the nearest available properly functioning
secondary chemical evidentiary breath testing device located
outside the county in which the arrest was made, if: (i) There is
no properly functioning secondary chemical evidentiary breath
testing device located within the county the arrest was made; or
(ii) there is no magistrate available within the county the arrest
was made for the arraignment of the person arrested. A
law-enforcement officer who is directing that a secondary chemical
an evidentiary breath test be conducted has the authority to
transport the person arrested to where the secondary chemical
evidentiary breath testing device is located.
(g) If the arresting officer lacks proper training in the
administration of a secondary chemical an evidentiary breath test,
then any other law-enforcement officer who has received training in the administration of the secondary chemical evidentiary breath
test to be administered may, upon the request of the arresting
law-enforcement officer and in his or her presence, conduct the
secondary evidentiary breath test. The results of a an evidentiary
breath test conducted pursuant to this subsection may be used in
evidence to the same extent and in the same manner as if the test
had been conducted by the arresting law-enforcement officer.
(h) Only the person actually administering or conducting a an
evidentiary breath test conducted pursuant to this article is
competent to testify as to the results and the veracity of the
test.
(i) Subsequent to the administration or conducting of an
evidentiary breath test any law-enforcement officer may require the
person arrested to submit to a secondary chemical test of his or
her blood or urine if there is probable cause to believe that the
person arrested is under the influence of any controlled substance,
other drug, or any combination of alcohol, controlled substance or
other drug.
(i) (j) For the purpose of this article, the term
"law-enforcement officer" or "police officer" means: (1) Any
member of the West Virginia State Police; (2) any sheriff and any
deputy sheriff of any county; (3) any member of a police department
in any municipality as defined in section two, article one, chapter
eight of this code; (4) any conservation officer of the Division of Natural Resources; and (5) any special police officer appointed by
the Governor pursuant to the provisions of section forty-one,
article three, chapter sixty-one of this code who has completed the
course of instruction at a law-enforcement training academy as
provided for under the provisions of section nine, article
twenty-nine, chapter thirty of this code.
(j) (k) A law-enforcement officer who has reasonable cause to
believe that person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to
the operation of a motorboat, jet ski or other motorized vessel,
shall follow the provisions of this section in administering, or
causing to be administered, a preliminary breath analysis, an
evidentiary breath test, and the secondary chemical test of the
accused person's blood breath or urine for the purpose of
determining alcohol, any controlled substance, other drug, or any
combination thereof, content of contained in his or her blood.
(l) Nothing in this section shall be construed to restrict
searches or seizures under a warrant issued by a judicial officer,
in addition to any tests permitted under this section.
§17C-5-4a. Mandatory chemical test required for drivers involved
in motor vehicle crashes when death or serious bodily
injury occurs, when operating while revoked for
driving under the influence or when committing a
felony offense of driving under the influence.
When the driver of a motor vehicle is involved in a motor
vehicle crash that results in the death or serious bodily injury to
another person, or when such driver is operating a motor vehicle
while his or her license is revoked pursuant to section 3(b),
article 4, chapter 17B of this code, or when such driver is
operating a motor vehicle in violation of section 2, article 5,
chapter 17C and such violation is a felony, then in any event, the
provisions of section 4, article 5, chapter 17C notwithstanding,
such driver shall submit to an evidentiary breath test or a
secondary chemical test of their blood or urine, at the direction
of the law-enforcement officer, designed to detect and measure the
existence of alcohol, controlled substances or any other drugs, or
any combination thereof.
§17C-5-6. How blood test administered; additional test at option
of person tested; use of test results; certain
immunity from liability incident to administering
test.
Only a doctor of medicine or osteopathy, or registered nurse
or trained medical technician at the place of his employment,
acting at the request and direction of the law-enforcement officer
or pursuant to a judicially authorized warrant or other court
order, may withdraw blood for the purpose of determining the
presence and concentration of alcoholic alcohol, controlled
substances, any other drug or any combination thereof, content thereof contained therein. These limitations shall not apply to
the taking of a breath test or a urine specimen. In withdrawing
blood for the purpose of determining the alcoholic content thereof,
only a previously unused and sterile needle and sterile vessel may
be utilized and the withdrawal shall otherwise be in strict accord
with accepted medical practices. A nonalcoholic antiseptic shall
be used for cleansing the skin prior to venapuncture. The person
tested may, at his own expense, have a doctor of medicine or
osteopathy, or registered nurse, or trained medical technician at
the place of his employment, of his own choosing, administer a
chemical test in addition to the test administered at the direction
of the law-enforcement officer. Upon the request of the person who
is tested, full information concerning the test taken at the
direction of the law-enforcement officer shall be made available to
him. No person who administers any such test upon the request of
a law-enforcement officer as herein defined, no hospital in or with
which such person is employed or is otherwise associated or in
which such test is administered, and no other person, firm or
corporation by whom or with which such person is employed or is in
any way associated, shall be in any wise criminally liable for the
administration of such test, or civilly liable in damages to the
person tested unless for gross negligence or willful or wanton
injury.
§17C-5-6a. Taking a child into custody; driving a motor vehicle with any amount of blood alcohol.
(a) A preliminary breath analysis may be administered to a
child whenever a law-enforcement official officer has reasonable
cause to believe the child to have been driving a motor vehicle
with any amount of alcohol in his or her blood for the purpose of
determining the child's blood alcohol content. Such breath
analysis must be administered as soon as possible after the
law-enforcement officer arrives at a reasonable belief that the
child has been driving a motor vehicle with any amount of alcohol
in his or her blood. Any preliminary breath analysis administered
pursuant to this subsection must be administered with a device and
in a manner approved by the division of health for that purpose.
If a preliminary breath analysis is administered, the results shall
be used solely for the purpose of guiding the officer in deciding
whether the child, at the time of driving the motor vehicle, had an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, and should, therefore, be taken into
custody to administer a secondary an evidentiary breath test in
accordance with the provisions of this section.
(b) A child may be taken into custody by a law-enforcement
official officer without a warrant or court order if the official
officer has reasonable grounds to believe the child to have been
driving a motor vehicle with any amount of alcohol in his or her
blood. If a preliminary breath analysis is administered and the results of the analysis indicate that the child has an alcohol
concentration in his or her blood of less than two hundredths of
one percent, by weight, the child may not be taken into custody
unless other grounds exist under subsection (b), section eight,
article five, chapter forty-nine of this code. Upon taking a child
into custody pursuant to the provisions of this section, the
official officer shall take all reasonable steps to cause
notification to be made to the child's parent or custodian or, if
the parent or custodian cannot be located, to a close relative.
(c) Upon taking a child into custody pursuant to this section,
the official officer shall take the child to a facility where an
evidentiary breath test shall be administered by or at the
direction of the law-enforcement officer. a secondary test of the
child's blood or urine may be administered at the direction of the
official or a test of the child's breath may be administered by the
official. The law-enforcement agency by which such law-enforcement
official is employed shall designate whether the secondary test is
a test of either blood, breath or urine: Provided, That if the test
so designated is a blood test and the child refuses to submit to
the blood test, then the law-enforcement official taking the child
into custody shall designate in lieu thereof a breath test to be
administered. If the child is unable to take, or to complete, or
to cooperate in the completing of an evidentiary breath test
because of injuries, illness, disease, physical infirmity or physical incapacity, or if such person is receiving medical
treatment at a location at which an evidentiary breath testing
device is not available, the test shall be of such child's blood or
urine. Subsequent to the administration or conducting of an
evidentiary breath test any law-enforcement officer may require the
child to submit to a secondary chemical test of his or her blood or
urine if there is probable cause to believe that the child is under
the influence of any controlled substance, other drug, or any
combination of alcohol, controlled substance or other drug.
Notwithstanding the provisions of section seven [§ 17C-5-7] of
this article, a refusal to submit to a blood test only shall not
result in the revocation of the child's license to operate a motor
vehicle in this state. Any child taken into custody pursuant to
this section shall be given a written statement advising him or her
that a refusal to submit to either or both an evidentiary breath
test or a secondary test of either blood, breath or urine, as
finally designated by the law-enforcement agency or official
officer in accordance with this subsection, will result in the
suspension of his or her license to operate a motor vehicle in this
state for a period of at least thirty days or a revocation of the
license for a period up to life.
(d) If the law-enforcement official officer taking the child
into custody is employed by a law-enforcement agency which does not
have available the testing equipment or facilities necessary to conduct any secondary evidentiary breath test which may be
administered pursuant to the provisions of this section, then the
official officer who took the child into custody may request
another qualified person to administer a secondary an evidentiary
breath test: Provided, That the evidentiary breath test shall be
administered in the presence of the official officer who took the
child into custody. The results of such breath test may be used in
evidence to the same extent and in the same manner as if such test
had been conducted by the law-enforcement official officer who took
the child into custody. The qualified person administering the
breath test must be a member of the West Virginia state police, the
sheriff of the county wherein the child was taken into custody or
any deputy of such sheriff or a law-enforcement official of another
municipality within the county wherein the child was taken into
custody. Only the person actually administering the secondary
evidentiary breath test is competent to testify as to the results
and the veracity of the test. If the secondary chemical test is a
blood test, the test shall be conducted in accordance with the
provisions of section six of this article.
(e) After taking the child into custody, if the
law-enforcement official officer has reasonable probable cause to
believe that the act of the child in driving the motor vehicle is
such that it would provide grounds for arrest for an offense
defined under the provisions of section two of this article if the child were an adult, then the official officer shall proceed to
treat the child in the same manner as any other child taken into
custody without a warrant or court order, in accordance with the
provisions of section eight of this article.
(f) If the results of any secondary test administered pursuant
to this section indicate that the child, at the time of driving the
motor vehicle, had an alcohol concentration in his or her blood of
eight hundredths of one percent or less, by weight, and if the law-
enforcement official officer does not have reasonable probable
cause to believe that the act of the child in driving the motor
vehicle is such that it would provide grounds for arrest for an
offense defined under the provisions of section two of this article
if the child were an adult, then the official officer shall release
the child: Provided, That if the results of any evidentiary breath
secondary test administered pursuant to this section indicate that
the child, at the time of driving the motor vehicle, had an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, the child shall only be released to a parent or
custodian, or to some other responsible adult.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any either or both the evidentiary breath test or secondary chemical test, the tests shall
not be given: Provided, That prior to such refusal, the person is
given a written statement advising him or her that his or her
refusal to submit to either or both the evidentiary breath test or
secondary chemical test finally designated will result in the
revocation of his or her license to operate a motor vehicle in this
state for a period of at least one year and up to life. If a
person initially refuses to submit to the evidentiary breath test
or the designated secondary chemical test after being informed in
writing of the consequences of such refusal, he or she shall be
informed orally and in writing that after fifteen minutes said
refusal shall be deemed to be final and the arresting officer shall
after said period of time expires have no further duty to provide
the person with an opportunity to take the evidentiary breath test
or designated secondary test. The officer shall within forty-eight
hours of such refusal, sign and submit to the commissioner of motor
vehicles a written statement of the officer that: (1) He or she
had reasonable grounds to believe such person had been driving a
motor vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (2) such person was lawfully placed
under arrest for an offense relating to driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs; (3) such person refused to submit to the
evidentiary breath test or secondary chemical test finally designated in the manner provided in section four of this article;
and (4) such person was given a written statement advising him that
his license to operate a motor vehicle in this state would be
revoked for a period of at least one year and up to life if he or
she refused to submit to the evidentiary breath test or secondary
test finally designated in the manner provided in section four of
this article. The signing of the statement required to be signed
by this section shall constitute an oath or affirmation by the
person signing such statement that the statements contained therein
are true and that any copy filed is a true copy. Such statement
shall contain upon its face a warning to the officer signing that
to willfully sign a statement containing false information
concerning any matter or thing, material, or not material, is false
swearing and is a misdemeanor. Upon receiving the statement the
commissioner shall make and enter an order revoking such person's
license to operate a motor vehicle in this state for the period
prescribed by this section.
For the first refusal to submit to the evidentiary breath test
or designated secondary chemical test, the commissioner shall make
and enter an order revoking such person's license to operate a
motor vehicle in this state for a period of one year. If the
commissioner has previously revoked the person's license under the
provisions of this section, the commissioner shall, for the refusal
to submit to the evidentiary breath test or designated secondary chemical test, make and enter an order revoking such person's
license to operate a motor vehicle in this state for a period of
ten years: Provided, That the license may be reissued in five
years in accordance with the provisions of section three, article
five-a of this chapter. If the commissioner has previously revoked
the person's license more than once under the provisions of this
section, the commissioner shall, for the refusal to submit to the
evidentiary breath test or designated secondary chemical test, make
and enter an order revoking such person's license to operate a
motor vehicle in this state for a period of life: Provided, That
the license may be reissued in ten years in accordance with the
provisions of section three, article five-a of this chapter. A
copy of each such order shall be forwarded to such person by
registered or certified mail, return receipt requested, and shall
contain the reasons for the revocation and shall specify the
revocation period imposed pursuant to this section. No such
revocation shall become effective until ten days after receipt of
the copy of such order. Any person who is unconscious or who is
otherwise in a condition rendering him or her incapable of refusal,
shall be deemed not to have withdrawn his or her consent for a test
of his or her blood, breath or urine as provided in section four of
this article and the test may be administered although such person
is not informed that his or her failure to submit to the test will
result in the revocation of his or her license to operate a motor vehicle in this state for the period provided for in this section.
A revocation hereunder shall run concurrently with the period
of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which
gave rise to the arrest for driving a motor vehicle while under the
influence of alcohol, controlled substances or drugs and the
subsequent refusal to undergo the test finally designated in
accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two of this
article, for conduct which occurred on or after June tenth, one
thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter, for conduct which occurred on or
after June tenth, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article five-a of this chapter.
§17C-5-8. Interpretation and use of chemical test.
(a) Upon trial for the offense of driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or upon the
trial of any civil or criminal action arising out of acts alleged
to have been committed by any person driving a motor vehicle while
under the influence of alcohol, controlled substances or other
drugs, or any combination thereof, evidence of the amount of
alcohol, controlled substances, other drugs, or any combination
thereof in the person's blood at the time of the arrest or of the
acts alleged, as shown by a chemical an analysis of his or her
blood, breath or urine, is admissible, if the sample or specimen
was taken within two hours from and after the time of arrest or of
the acts alleged.
The evidence of alcohol content gives rise to the following
presumptions or has the following effect:
(1) Evidence that there was, at that time, five hundredths of
one percent or less, by weight, of alcohol in his or her blood, is
prima facie evidence that the person was not under the influence of
alcohol;
(2) Evidence that there was, at that time, more than five
hundredths of one percent and less than eight hundredths of one
percent, by weight, of alcohol in the person's blood is relevant evidence, but it is not to be given prima facie effect in
indicating whether the person was under the influence of alcohol;
(3) Evidence that there was, at that time, eight hundredths of
one percent or more, by weight, of alcohol in his or her blood,
shall be admitted as prima facie evidence that the person was under
the influence of alcohol.
(b) A determination of the percent, by weight, of alcohol in
the blood shall be based upon a formula of:
(1) The number of grams of alcohol per one hundred cubic
centimeters of blood;
(2) The number of grams of alcohol per two hundred ten liters
of breath;
(3) The number of grams of alcohol per sixty-seven milliliters
of urine; or
(4) The number of grams of alcohol per eighty-six milliliters
of serum.
(c) A chemical An analysis of a person's blood, breath or
urine, in order to give rise to the presumptions for alcohol or to
have the effect provided for in subsection (a) of this section,
must be performed in accordance with methods and standards approved
by the state division of health. A chemical An analysis of blood
or urine to determine the alcohol, controlled substance, any drug,
or any combination thereof, content of blood shall be conducted by
a qualified laboratory or by the State Police Scientific Laboratory of the Criminal Identification Bureau of the West Virginia State
Police.
(d) The provisions of this article do not limit the
introduction in any administrative or judicial proceeding of the
analysis of a person's blood or urine for alcohol, controlled
substances or other drugs or any other competent evidence bearing
on the question of whether the person was under the influence of
alcohol, controlled substances or other drugs or any combination
thereof.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1. Implied consent to administrative procedure; revocation
for driving under the influence of alcohol,
controlled substances or drugs or refusal to submit
to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be revoked
because he or she did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or combined
influence of alcohol or controlled substances or drugs, or did
drive a motor vehicle while having an alcohol concentration in his
or her blood of eight hundredths of one percent or more, by weight,
or did refuse to submit to any evidentiary breath test or
designated secondary chemical test of his or her blood or urine, 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 eight hundredths
of one percent, by weight.
(b) Any law-enforcement officer having probable cause to
believe that arresting a person has committed 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 shall report to
the Commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours the name and address of that the
person so arrested. The report shall include the specific offense
with which the person is charged and, if applicable, a copy of the
results of any evidentiary breath test or secondary tests of blood
breath or urine. The report may further contain such other
information and in a form as required by the commissioner. The
officer's signature or electronic signature on signing of the
statement required to be signed by this subsection shall constitute an oath or affirmation by the person signing the statement that the
statements contained therein are true and that any copy filed is a
true copy. The statement shall contain upon its face a warning to
the officer signing that to willfully sign a statement containing
false information concerning any matter or thing, material or not
material, is false swearing and is a misdemeanor.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this
section, the commissioner shall determine finds probable cause to
believe that the a person committed was arrested 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, and that the
results of any evidentiary breath or secondary test or tests
indicate that at the time the test or tests were administered the
person had, in his or her blood, an alcohol concentration of eight
hundredths of one percent or more, by weight, or at the time the
offense occurred such person was arrested he or she was under the
influence of alcohol, controlled substances or drugs, the
commissioner shall make and enter an order revoking the person's
license to operate a motor vehicle in this state. If the results
of the tests indicate that at the time the test or tests were
administered the person was under the age of twenty-one years and
had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight 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. A copy of the order shall be forwarded to the person
by registered or certified mail, return receipt requested, and
shall contain the reasons for the revocation or suspension and
describe the applicable revocation or suspension periods provided
for in section two of this article. No revocation or suspension
shall become effective until ten days after receipt of a copy of
the order notice is given to the person of the entry of such order.
(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this chapter
who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or
her blood of two hundredths of one percent or more, by weight, or
that the act of the child in driving the motor vehicle was such
that it would provide grounds for arrest for an offense defined
under the provisions of section two of said article if the child
were an adult, shall report to the commissioner of the division of
motor vehicles by written statement within forty-eight hours the
name and address of the child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult, and a copy of the results of any secondary tests of blood, breath or urine. The signing of the
statement required to be signed by this subsection shall constitute
an oath or affirmation by the person signing such statement that
the statements contained therein are true and that any copy filed
is a true copy. Such statement shall contain upon its face a
warning to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing,
material or not material, is false swearing and is a misdemeanor.
(f) Upon examination of the written statement of the officer and
any test results described in subsection (d) of this section, if
the commissioner determines that the results of the tests indicate
that at the time the test or tests were administered the child had,
in his or her blood, an alcohol concentration of two hundredths of
one percent or more, by weight, but also determines that the act of
the child in driving the motor vehicle was not such that it would
provide grounds for arrest for an offense defined under the
provisions of subsection (a), (b), (c), (d), (e), (f) or (g),
section two, article five of this chapter if the child were an
adult, the commissioner shall make and enter an order suspending
the child's license to operate a motor vehicle in this state. If
the commissioner determines that the act of the child in driving
the motor vehicle was such that it would provide grounds for arrest
for an offense defined under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g), section two, article five of this chapter if the child were an adult, the commissioner shall make and
enter an order revoking the child's license to operate a motor
vehicle in this state. A copy of such order shall be forwarded to
the child by registered or certified mail, return receipt
requested, and shall contain the reasons for the suspension or
revocation and describe the applicable suspension or revocation
periods provided for in section two of this article. No suspension
or revocation shall become effective until ten days after receipt
of a copy of such order.
§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 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
alcohol concentration in his or her blood of eight 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 eight 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 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
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 alcohol concentration in
his or her blood of eight 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 eight 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 said section. 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 notice is given to such person of the entry 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. The commissioner may disregard the
provisions of this section if an order was entered pursuant to
section one of this article for the same offense indicated in the
transcript of the judgment of conviction for which the person has
completed the revocation period and reinstated his or her license.
The commissioner may cancel any revocation order made pursuant to
section one upon entry of any order pursuant to this section.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty of is found guilty by a
court or jury.
§17C-5A-2. Hearing; revocation; review.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
under the provisions of section one of this article or section
seven, article five of this chapter, the Commissioner of the
Division of Motor Vehicles shall afford such person a hearing on
the matters contested to show cause why the revocation or
suspension should be rescinded or modified to a lesser period of
revocation. stay the imposition of the period of revocation or
suspension and afford the person an opportunity to be heard. The
written request must be filed with the commissioner in person or by
registered or certified mail, return receipt requested, within
thirty calendar days after notice of the entry receipt of a copy of
the order of revocation or suspension has been given or no hearing
will be granted. The hearing shall be before the commissioner or
a hearing examiner retained by the commissioner who shall rule on
evidentiary issues and submit proposed findings of fact and
conclusions of law for the consideration of the commissioner and
all of the pertinent provisions of article five, chapter
twenty-nine-a of this code shall apply, except that the
commissioner shall not be bound by the rules of evidence. The
hearing shall be held at an office of the division located in or
near the county wherein the arrest incident occurred was made in
this state or at some other suitable place in the county wherein
the incident occurred arrest was made if an office of the division is not available. Notwithstanding any other provision in this code
to the contrary, the commissioner may hold a hearing on any day
except a Sunday or legal holiday.
(b) Any such hearing shall be held within one hundred eighty
days after the date upon which the commissioner received the timely
written request therefor unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing
on the commissioner's own motion or upon application for each
person for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any such hearing on the
commissioner's own motion or for the benefit of any law-enforcement
officer or any person requesting the hearing, and such policies
shall be enforced and applied to all parties equally. The
commissioner may reconvene any hearing to resolve conflicts of
material evidence. For the purpose of conducting the hearing, the
commissioner shall have the power and authority to issue subpoenas
and subpoenas duces tecum in accordance with the provisions of
section one, article five, chapter twenty-nine-a of this code:
Provided, That the notice of hearing to the appropriate law-
enforcement officers by registered or certified mail, return
receipt requested, shall constitute a subpoena to appear at the
hearing without the necessity of payment of fees by the division of
motor vehicles.
(c) Any law-enforcement officer who submits a statement
pursuant to section one of this article that results in a hearing
under this section shall be notified of the hearing but is not
required to attend unless subpoenaed. Law-enforcement officers
shall be compensated for the time expended in their travel and
appearance before the commissioner by the law-enforcement agency by
whom they are employed at their regular rate if they are scheduled
to be on duty during said time or at their regular overtime rate if
they are scheduled to be off duty during said time.
(d) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or other drugs, or any combination
thereof, or did drive a motor vehicle while having an alcohol
concentration in the person's blood of eight hundredths of one
percent or more, by weight, or did refuse to submit to either or
both the designated evidentiary breath test or the secondary
chemical test, 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
eight hundredths of one percent, by weight.
The commissioner may propose a legislative rule in compliance
with the provisions of article three, chapter twenty-nine-a of this
code, which rule may provide that if a person accused of driving a
motor vehicle while under the influence of alcohol, controlled substances or drugs, or accused of driving a motor vehicle while
having an alcohol concentration in the person's blood of eight
hundredths of one percent or more, by weight, or accused 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 eight hundredths of one
percent, by weight, intends to challenge the results of any
secondary chemical test of blood, breath or urine, or intends to
cross-examine the individual or individuals who administered the
test or performed the chemical analysis, the person shall, within
an appropriate period of time prior to the hearing, notify the
commissioner in writing of such intention. The rule may provide
that when there is a failure to comply with the notice requirement,
the results of the secondary test, if any, shall be admissible as
though the person and the commissioner had stipulated the
admissibility of such evidence. Any such rule shall provide that
the rule shall not be invoked in the case of a person who is not
represented by counsel unless the communication from the
commissioner to the person establishing a time and place for the
hearing also informed the person of the consequences of the
person's failure to timely notify the commissioner of the person's
intention to challenge the results of the secondary chemical test
or cross-examine the individual or individuals who administered the
test or performed the chemical analysis. In accordance with section two, article five, chapter twenty-nine-a of this code, the
commissioner shall consider the written statement and test results,
and any other document submitted by the law-enforcement officer
pursuant to section one of this article regardless of whether the
officer appears at the hearing. The admission of any document into
evidence under this section creates a rebuttable presumption as to
its accuracy but does not preclude the contents of the document
from being challenged during the hearing.
(e) In the case of a hearing wherein a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or accused
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 eight hundredths
of one percent, by weight, The commissioner shall make specific
findings, where applicable, as to: (1) Whether the arresting
law-enforcement officer had reasonable grounds to believe the
person to have been driving while under the influence of alcohol,
controlled substances or other drugs, or any combination thereof,
or while having an alcohol concentration in the person's blood of
eight hundredths of one percent or more, by weight, or to have been
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 eight hundredths
of one percent, by weight; (2) whether, by a preponderance of the
evidence, that the person has committed was lawfully placed under
arrest for an offense involving driving under the influence of
alcohol, controlled substances or other drugs, or any combination
thereof, or was lawfully taken into custody for the purpose of
administering an evidentiary breath test or a secondary test; and
(3) whether the tests, if any, were administered in accordance with
the provisions of this article and article five of this chapter;
(4) whether the person refused to submit to the secondary test
finally designated in the manners provided in article five of this
chapter; and (5) whether the person had been read and given a
written statement advising the person that the person's license to
operate a motor vehicle in this state would be revoked if the
person refused to submit to the test finally designated in the
manner provided in said article, when applicable.
(f) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight 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
eight hundredths of one percent, by weight, the commissioner also
finds by a preponderance of the evidence that the person when so
driving did an act forbidden by law or failed to perform a duty
imposed by law, which act or failure proximately caused the death
of a person and was committed in reckless disregard of the safety
of others, and if the commissioner further finds that the influence
of alcohol, controlled substances or other drugs, or any
combination thereof, or the alcohol concentration in the blood was
a contributing cause to the death, the commissioner shall revoke
the person's license for a period of ten five years. Provided,
That if the commissioner has previously suspended or revoked the
person's license under the provisions of this section or section
one of this article within the ten years immediately preceding the
date of arrest, the period of revocation shall be for the life of
the person.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight hundredths of one percent or more, by
weight, the commissioner also finds by a preponderance of the
evidence that the person when so driving did an act forbidden by
law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, the commissioner
shall revoke the person's license for a period of five two years
and six months. Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(h) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight hundredths of one percent or more, by
weight, the commissioner also finds by a preponderance of the
evidence that the person when so driving did an act forbidden by
law or failed to perform a duty imposed by law, which act or
failure proximately caused bodily injury to a person other than
himself or herself, the commissioner shall revoke the person's
license for a period of two years one year. Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or other drugs, or any
combination thereof, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or finds that the person, being an
habitual user of narcotic drugs or amphetamine or any derivative
thereof, did drive a motor vehicle, or finds that the person
knowingly permitted the person's vehicle to be driven by another
person who was under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or knowingly
permitted the person's vehicle to be driven by another person who
had an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, the commissioner
shall revoke the person's license for a period of six months ninety
days: Provided, That if the commissioner has previously suspended
or revoked the person's license under the provisions of this
section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years: Provided, however, That if the commissioner
has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(j) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or other drugs, or any
combination thereof, and when so driving had an alcohol
concentration in the person's blood of fifteen hundredths of one
percent or more, by weight, or did so in willful or wanton
disregard for the safety of persons or property, or finds that the
person knowingly permitted the person's vehicle to be driven by
another person who was under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, and when so
driving had an alcohol concentration in the person's blood of
fifteen hundredths of one percent or more, by weight, or did so in
willful or wanton disregard for the safety of persons or property,
the commissioner shall revoke the person's license for a period of
six months: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be ten years: Provided, however, That if the commissioner
has previously suspended or revoked the person's license more than once under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be for the life of the
person.
(j) (i) If, in addition to a finding that the person 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 eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused the death of a person, and if the
commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the death, the commissioner shall
revoke the person's license for a period of five two years six
months: Provided, That if the commissioner has previously
suspended or revoked the person's license under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(k) (j) If, in addition to a finding that the person 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 eight hundredths of one percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused bodily injury to a person other
than himself or herself, and if the commissioner further finds that
the alcohol concentration in the blood was a contributing cause to
the bodily injury, the commissioner shall revoke the person's
license for a period of two one years: Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(l) (k) If the commissioner finds by a preponderance of the
evidence that the person 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 eight hundredths of one percent, by weight, the commissioner
shall suspend revoke the person's license for a period of sixty
days: Provided, That if the commissioner has previously suspended or revoked the person's license under the provisions of this
section or section one of this article, the period of revocation
shall be for one year, or until the person's twenty-first birthday,
whichever period is longer.
(m) (l) If, in addition to a finding that the person did drive
a motor vehicle while under the influence of alcohol, controlled
substances or other drugs, or any combination thereof, or did drive
a motor vehicle while having an alcohol concentration in the
person's blood of eight hundredths of one percent or more, by
weight, the commissioner also finds by a preponderance of the
evidence that the person when so driving did have on or within the
motor vehicle another person who has not reached his or her
sixteenth birthday, the commissioner shall revoke the person's
license for a period of one year six months. Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years: Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(n) For purposes of this section, where reference is made to previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest.
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two, article five
of this chapter, for conduct which occurred within the ten years
immediately preceding the date of arrest.
(3) Any revocation under the provisions of section seven,
article five of this chapter, for conduct which occurred within the
ten years immediately preceding the date of arrest.
(o) In the case of a hearing wherein a person is accused of
refusing to submit to a designated secondary test, the commissioner
shall make specific findings as to: (1) Whether the arresting law-
enforcement officer had reasonable grounds to believe the person
had been driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or drugs; (2) whether
the person was lawfully placed under arrest for an offense relating
to driving a motor vehicle in this state while under the influence of alcohol, controlled substances or drugs; (3) whether the person
refused to submit to the secondary test finally designated in the
manner provided in section four, article five of this chapter; and
(4) whether the person had been given a written statement advising
the person that the person's license to operate a motor vehicle in
this state would be revoked for at least one year and up to life if
the person refused to submit to the test finally designated in the
manner provided in said section.
(p) (m) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement officer had
reasonable grounds to believe the person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or other drugs, or any combination thereof;
(2) the person was lawfully placed under arrest for an offense
relating to driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or other drugs or any
combination thereof; (3) the person refused to submit to either or
both the evidentiary breath test or the secondary chemical test
finally designated; and (4) the person had been given a written
statement advising the person that the person's license to operate
a motor vehicle in this state would be revoked for a period of at
least one year and up to life if the person refused to submit to
the test finally designated either or both of the tests, the
commissioner shall revoke the person's license to operate a motor vehicle in this state for the periods specified in section seven,
article five of this chapter one year. The revocation period
prescribed in this subsection shall run concurrently with any other
revocation period ordered under this section or section one of this
article arising out of the same occurrence.
(n) If the commissioner previously suspended or revoked the
person's license under the provisions of this section, section one
or one-a of this article, or section seven, article five of this
chapter or the person was previously convicted of an offense
described in section two, article five of this chapter or similar
municipal ordinance within the previous ten years immediately
preceding the date of the present offense, the person shall comply
with the provisions of section three-a of this article and the
revocation periods found therein unless the present offense is for
driving under the influence of controlled substances or other drugs
and does not involve alcohol. If the present offense is for
driving under the influence of controlled substances or other drugs
and the commissioner previously suspended or revoked the person's
license under the provisions of this section, section one or one-a
of this article, or section seven, article five of this chapter or
the person was previously convicted of an offense described in
section two, article five of this chapter or similar municipal
ordinance within the previous ten years immediately preceding the
date of the present offense, then the revocation period is five years. If the present offense is for driving under the influence
of controlled substances or other drugs and the commissioner
previously suspended or revoked the person's license under the
provisions of this section, section one or one-a of this article,
or section seven, article five of this chapter or the person was
previously convicted of an offense described in section two,
article five of this chapter or similar municipal ordinance more
than once within the previous ten years immediately preceding the
date of the present offense, then the revocation period is ten
years.
(q) (o) If the commissioner finds to the contrary with respect
to the above issues, the commissioner shall rescind his or her
earlier order of revocation or shall reduce the order of revocation
to the appropriate period of revocation under this section or
section seven, article five of this chapter.
A copy of the commissioner's order made and entered following
the hearing shall be served upon the person by registered or
certified mail, return receipt requested. During the pendency of
any such hearing, the revocation of the person's license to operate
a motor vehicle in this state shall be stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation, the
person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay enforcement of the order. The court may grant a stay or supersede
as of the order only upon motion and hearing, and a finding by the
court upon the evidence presented, that there is a substantial
probability that the appellant shall prevail upon the merits, and
the appellant will suffer irreparable harm if the order is not
stayed: Provided, That in no event shall the stay or supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the transcript of the hearing to the circuit court in less than
sixty days.
(r) (p) In any revocation or suspension pursuant to this
section, if the driver whose license is revoked or suspended had
not reached the driver's eighteenth birthday at the time of the
conduct for which the license is revoked or suspended, the driver's
license shall be revoked or suspended until the driver's eighteenth
birthday or the applicable statutory period of revocation or
suspension prescribed by this section, whichever is longer.
(s) (q) Funds for this section's hearing and appeal process
may be provided from the drunk driving prevention fund, as created
by section forty-one, article two, chapter fifteen of this code,
upon application for such funds to the commission on drunk driving
prevention.
§17C-5A-2a. Assessment of costs; special account created.
The Department of Motor Vehicles is hereby authorized and
required to assess witness costs at the same rate as witness fees
in circuit court and a docket fee of ten three hundred dollars for
each hearing request against any person filing a request for a
hearing under section two of this article who fails to appear,
fails to have said order rescinded or fails to have said order
modified to a lesser period of revocation. The docket fee must be
paid in advance of the hearing and will be refunded to the person
requesting a hearing if the order is rescinded or modified to a
lesser period of revocation.
All fees and costs collected hereunder shall be paid into a
special revenue account in the state treasury. The funds in said
account shall be used to pay or reimburse the various
law-enforcement agencies at the same rate as witnesses in circuit
court for the travel and appearance of its officers before the
commissioner or authorized deputy or agent pursuant to a hearing
request under the provisions of this article. The department
division shall authorize payment to the law-enforcement agencies
from said account as the fees for a particular hearing request are
received from the person against whom the costs were assessed. The
department division shall authorize transfer to an appropriate
agency account from the special account to pay costs of registered
and certified mailings and other expenses associated with the
conduct of hearings under this article as the docket fee for a particular hearing request is received from the person against whom
the costs were assessed.
In the event judicial review results in said order being
rescinded or modified to a lesser period of revocation the costs
assessed shall be discharged.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Division of Motor Vehicles, in cooperation with the
Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code, establishing a comprehensive safety and
treatment program for persons whose licenses have been revoked
under the provisions of this article, or section seven, article
five of this chapter, or subsection (6), section five, article
three, chapter seventeen-b of this code, and shall likewise
establish the minimum qualifications for mental health facilities
or other public agencies or private entities conducting the safety
and treatment program: Provided, That the commissioner may
establish standards whereby the division will accept or approve
participation by violators in another treatment program which
provides the same or substantially similar benefits as the safety
and treatment program established pursuant to this section. The
program shall include, but not be limited to, treatment of
alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they
relate to driving, defensive driving or other safety driving
instruction, and other programs designed to properly educate, train
and rehabilitate the offender.
(b) (1) The Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources, the Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational and treatment program for each person whose license has
been revoked under the provisions of this article or section seven,
article five of this chapter, or subsection (6), section five,
article three, chapter seventeen-b of this code, which shall
contain the following: (A) A listing and evaluation of the
offender's prior traffic record; (B) characteristics and history of
alcohol or drug use, if any; (C) his or her amenability to
rehabilitation through the alcohol safety program; and (D) a
recommendation as to treatment or rehabilitation, and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment. The cost of the program shall be paid
out of fees established by the Commissioner of Motor Vehicles in
cooperation with the Department of Health and Human Resources,
Division of Alcohol and Drug Abuse. The program provider shall
collect the established fee from each participant upon enrollment.
The program provider shall also at the time of enrollment remit to the commissioner a portion of the collected fee established by the
commissioner in cooperation with the Department of Health and Human
Resources, which shall be deposited into an account designated the
driver's rehabilitation fund, which was created by a prior
enactment of this section and which is hereby continued, to be used
for the administration of the program.
(2) The commissioner, after giving due consideration to the
program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate
a motor vehicle in this state revoked under this article, or
section seven, article five of this chapter, or subsection (6),
section five, article three, chapter seventeen-b of this code,
which shall include successful completion of the educational,
treatment or rehabilitation program, subject to the following:
(A) When the period of revocation is six months, The license
to operate a motor vehicle in this state shall not be reissued
until (i) at least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect, The revocation period has elapsed, (ii) the offender has
successfully completed the program, (iii) all costs of the program
and administration have been paid, and (iv) all costs assessed as
a result of a revocation hearing have been paid.
(B) When the period of revocation is for a period of years,
the license to operate a motor vehicle in this state shall not be reissued until (i) at least one half of such time period has
elapsed from the date of the initial revocation, during which time
the revocation was actually in effect, (ii) the offender has
successfully completed the program, (iii) all costs of the program
and administration have been paid, and (iv) all costs assessed as
a result of a revocation hearing have been paid.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this state shall not be reissued until
(i) at least ten years have elapsed from the date of the initial
revocation, during which time the revocation was actually in
effect, (ii) the offender has successfully completed the program,
(iii) all costs of the program and administration have been paid,
and (iv) all costs assessed as a result of a revocation hearing
have been paid.
(D) (B) Notwithstanding any provision of this code or any
rule, any mental health facilities or other public agencies or
private entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program, shall only have to certify that such person has
successfully completed the program.
(c) (1) The Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection
(l), section two, article five-a of this chapter. The educational
program shall consist of not less than twelve nor more than
eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension revocation has been
ordered, the license to operate a motor vehicle shall not be
reinstated until: (A) at least sixty days have elapsed from the
date of the initial suspension, during which time the suspension
was actually in effect, The revocation period has elapsed; (B) the
offender has successfully completed the educational program; (C)
all costs of the program and administration have been paid; and (D)
all costs assessed as a result of a suspension revocation hearing
have been paid.
(d) A required component of the rehabilitation program
provided for in subsection (b) and the education program provided
for in subsection (c) shall be participation by the violator with
a victim impact panel program providing a forum for victims of
alcohol and drug related offenses and offenders to share first-hand
experiences on the impact of alcohol and drug related offenses in
their lives. The commissioner shall propose legislative rules for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code to implement victim impact panels where
appropriate numbers of victims are available and willing to
participate, and shall establish guidelines for other innovative programs which may be substituted where such victims are not
available, so as to assist persons whose licenses have been
suspended or revoked for alcohol and drug related offenses to gain
a full understanding of the severity of their offenses in terms of
the impact of such offenses on victims and offenders. The
legislative rules proposed for promulgation by the commissioner
shall require, at a minimum, discussion and consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug related offenses upon victims or offenders.
Any rules promulgated pursuant to this subsection shall
contain provisions which ensure that any meetings between victims
and offenders shall be nonconfrontational and ensure the physical
safety of the persons involved.
§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, or have been convicted
under section two, article five of this chapter. 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. 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, the person is
determined to be under the influence of alcohol.
(b) (1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this chapter is eligible to participate in the program when the person's
minimum revocation period as specified by subsection (c) of this
section has expired and 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.
(2) Any person whose license has been suspended revoked
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
eight 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 revocation, during which time the
suspension revocation was actually in effect: Provided, That in
the case of a person under the age of eighteen, the person is
eligible to participate in the program after thirty days have
elapsed from the date of the initial suspension revocation, during
which time the suspension revocation 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 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 under
this subsection may operate a motor vehicle unless approved to do
so by the commissioner;
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months ninety days pursuant to the provisions of
section one-a of this article for conviction of an offense defined
in subsection (d) (e) or (f) (g), section two, article five of this
chapter or pursuant to subsection (i), section two of this article,
the minimum period of revocation 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 sixty days;
(2) 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 subsection
(d), section two, article five of this chapter or pursuant to
subsection (j), section two of this article, the minimum period of
revocation for participation in the test and lock program is sixty
days and the minimum period for the use of the ignition interlock
device is four months;
(2) (3) 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 either or both an
evidentiary breath test or a secondary chemical test, the minimum
period of revocation 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;
(3) (4) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection
(f), section two of this article, the minimum period of revocation
before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device is two years;
(4) (5) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (b),
section two, article five of this chapter or pursuant to subsection
(g), section two of this article, the minimum period of revocation
is six months and the minimum period for the use of the ignition
interlock device is two years;
(5) (6) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (c),
section two, article five of this chapter or pursuant to subsection
(h), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is one year;
(6) (7) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (i),
section two, article five of this chapter or pursuant to subsection
(m) (l), section two of this article, the minimum period of
revocation for participation in the program is two months and the
minimum period for the use of the ignition interlock device is ten
months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or license was revoked under any
provision cited in this subsection within the past ten years. The
minimum revocation period for a person required to participate in
the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection (l) (k), section
two of this article or subsection (h) (i), section two, article
five of this chapter is two months and the minimum period of
participation is one year. The division will add one year to the
minimum period for the use of the ignition interlock device for
each additional previous conviction or revocation within the past
ten years. Any person required to participate under this
subsection must have an ignition interlock device installed on
every vehicle he or she owns or operates.
(e) An applicant for the test and lock program may 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 six-month
period preceding the date of application for admission to the test
and lock program; such is necessary for employment purposes.
(f) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to the person, and the person
is required to exhibit on demand, a driver's license which shall
reflect that the person is restricted to the operation of a motor
vehicle which is equipped with an approved motor vehicle alcohol
test and lock system.
(g) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(h) A person whose license has been suspended revoked pursuant
to the provisions of subsection (l) (k), section two of this
article who has completed the educational program, and who has not
violated the terms required by the commissioner of the person's
participation in the program, is 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 revocation shall be expunged
by operation of law: Provided, That a person is entitled to expungement under the provisions of this subsection only once. The
expungement shall be accomplished by physically marking the records
to show that the records have been expunged and by securely sealing
and filing the records. Expungement has the legal effect as if the
suspension revocation never occurred. The records 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 the information does not divulge the identity of the
person.
(i) 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 or regional 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
attempts to bypass the alcohol test and lock system is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in the
county or regional 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 is a condition of his or her employment. For the purpose
of this section, job site does not include any street or highway
open to the use of the public for purposes of vehicular traffic.
§17C-5A-3b. Provisional driving permit upon revocation for first
offenders.
(a) Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked under the
provisions of section one of this article, or upon a conviction
under the provisions of section one-a of this article, the
Commissioner of the Division of Motor Vehicles may grant such
person a provisional driving permit, notwithstanding other
provisions of this article to the contrary. The written request
must be filed with the commissioner in person or by registered or
certified mail, return receipt requested, within thirty calendar
days after receipt of a copy of the order of revocation or it shall
be denied.
Upon receipt of such written request, the commissioner shall
review the request and make a determination of whether or not the
person is eligible to obtain and receive a provisional driving
permit as set forth herein.
(b) A person shall be eligible to obtain a provisional driving
permit if they meet the following criteria:
(1) The driving privileges of the person shall have not been
suspended or revoked in this or any other state within the ten-year
period immediately preceding the date of the offense;
(2) The person has not been previously convicted of an offense
under section one, article five of this chapter or under any prior
enactment of such section, or any municipal ordinance of this state
or any other state or a statute of the United States or of any
other state of an offense which has the same elements of an offense
described in section one, article five of this chapter;
(3) The offense for which the person's license has been
revoked is not for a violation of an offense under subsections (a),
(b) or (c) of section one, article five of this chapter or under
any prior enactment of such section, or any municipal ordinance of
this state or any other state or a statute of the United States or
of any other state of an offense which has the same elements of an
offense described in subsections (a), (b) or (c) of section one,
article five of this chapter;
(c) The person shall be eligible to receive a provisional
driving permit after their license has been revoked for a period of
thirty days. The application for and granting of a provisional
driving permit shall be deemed to be a waiver of the hearing
provided in section two of this article.
(d) The commissioner 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. The rules shall also prescribe those
requirements which, in addition to the requirements specified by
this section for eligibility to obtain a provisional driving
permit, the commissioner determines must be met to obtain the
commissioner's approval to operate a motor vehicle pursuant to such
provisional driving permit. Upon successful completion of the
period of suspension and the terms of the provisional driving
permit, the person's license shall be reinstated.
(e) Should the person be found by the commissioner to have
violated the provisional driving permit rules he or she may
immediately revoke such provisional driving permit.
(f) In the event the person is found not to be eligible for a
provisional driving permit the commissioner shall notify the person
of such finding and the reasons therefore by registered or
certified mail, return receipt requested. Further, a person found
not to be eligible shall be entitled to the hearing provided in
section two of this article, provided that they shall make a
written request for such hearing, filed with the commissioner in
person or by registered or certified mail, return receipt
requested, within thirty calendar days after notice of the denial
of eligibility. Failure to request such hearing shall be deemed a
waiver thereof.
NOTE: The purpose of this bill is to amend the sentences
relating to driving suspended and revoked; create an enhanced
criminal penalty for driving under the influence of alcohol with a
blood alcohol content of .15 or greater; create an enhanced
criminal penalty for driving under the influence of alcohol with
willful or wanton disregard for the safety of others; eliminate the
offense of driving when a habitual user of drugs; provide for
evidentiary breath tests; authorize that a blood test be
administered if a breath testing device is not available; allow for
a blood or urine test to detect the presence of controlled
substances or drugs; require a blood test when a person is believed
to be under the influence and causes death or injury to another
person; authorizes the commissioner to make a probable cause
determination when a person is reported to be under the influence
or to have refused a secondary chemical test; clarify that the
commissioner only has to revoke the license once for each incident;
provide a person whose license was revoked a hearing to show cause
why the revocation should be rescinded or modified; increase the
fee for an administrative hearing; eliminate the victim impact
panel from the safety and treatment program; reduce the
participation period in the alcohol test and lock program for a
first offense for driving under the influence from five months to
sixty days; and make provisions for a provisional driving permit
for first offenders.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-5-4a and §17C-5A-3b are new; therefore, strike-throughs
and underscoring have been omitted.