Senate Bill No. 341
(By Senators Kessler, Foster, Barnes, Browning, Deem, Jenkins,
Laird, Palumbo, Stollings, Williams, Yost, Unger and Plymale)
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[Introduced January 25, 2010; referred to the Committee on Health
and Human Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact §17C-5A-3 of the Code of West Virginia,
1931, as amended, relating to creation of a special revenue
fund known as the Department of Health and Human Resources
Safety and Treatment Fund; control and use of the fund; and
transferring to the Department of Health and Human Resources
all employees, records responsibilities, obligations, assets
and property of the Division of Motor Vehicles with respect to
the safety and treatment program to the Department of Health
and Human Resources.
Be it enacted by the Legislature of West Virginia:
That §17C-5A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURE FOR SUSPENSION AND REVOCATION
OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, 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 administer the
comprehensive safety and treatment program
heretofore established
by the Division of Motor Vehicles 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been revoked under the provisions of this article or section seven,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 also
establish the minimum qualifications for mental health facilities
,
day report centers, community correction centers or other public
agencies or private entities conducting the safety and treatment
program:
Provided, That the Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse 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.
(b) 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.
(c) (1) The Department of Health and Human Resources, 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) the 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.
(2) Effective July 1, 2010, there is hereby created a new
special revenue account fund named the Department of Health and
Human Resources Safety and Treatment Fund. This new fund is
created for the sole purpose of receiving a portion of the fee for
the safety and treatment program and the fund shall be administered
by the Secretary of the Department of Health and Human Resources.
Program providers shall continue to collect the established fee
from each participant upon enrollment, except as provided in
subdivision (8) of this subsection and to remit to the Department
of Health and Human Resources a portion of the collected fee
established by the secretary which shall be deposited in to the
account designated as the Department of Health and Human Resources Safety and Treatment Fund. The deposits and gifts, bequeaths or
donation for this purpose, in addition to appropriations to the
fund, shall be deposited in the State Treasury in a special revenue
account under the control of the Secretary of the Department of
Health and Human Resources or his or her designee. Upon passage of
this section, the Division of Motor Vehicles will transfer all
moneys contained in Motor Vehicles Fees Fund to the new Department
of Health and Human Resources Safety and Treatment Fund to
facilitate the transfer of the administration of the Safety and
Treatment Program from the Division of Motor Vehicles to the
Department of Health and Human Resources.
(3) All interest accruing from investment of moneys in the
Department of Health and Human Resources Safety and Treatment
Program Fund shall be credited to that fund. The Legislative
Auditor shall conduct an audit of the fund at least every three
fiscal years.
(4) Costs of administration of the program and any other use
consistent with the promotion of alcohol safety and treatment may
be paid from the Department of Health and Human Resources Safety
and Treatment Fund by the Secretary of the Department of Health and
Human Resources. The Secretary of the Department of Health and
Human Resources shall, by legislative and emergency rules
promulgated in accordance with the provisions of article three,
chapter twenty-nine-a of this code, determine how funds collected
in this fund are to be spent and how the Safety and Treatment Program will be administered.
(5) Upon the effective date of the enactment of this section,
all records, responsibilities, obligations, physical assets and
property of the Division of Motor Vehicles solely with respect to
the driver's rehabilitation fund and the safety and treatment
program are hereby transferred to the Department of Health and
Human Resources.
(6) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed to
become effective by the Governor, by any state department or agency
or official thereof, or by a court of competent jurisdiction, in
the performance of functions which have been transferred hereunder
to the Department of Health and Human Resources, and were in effect
on the date the transfer occurred continue in effect, for the
benefit of the department, according to their terms until modified,
terminated, superseded, set aside or revoked in accordance with the
law by the Governor, the Secretary of the Department of Health and
Human Resources or other authorized official, a court of competent
jurisdiction or by operation of law.
(2) (7) The Department of Health and Human Resources shall
establish a fee by legislative rule proposed pursuant to article
three chapter twenty-nine-a of this code to be collected from each
offender enrolled in the safety and treatment program. The program
provider shall collect the established fee from each participant upon enrollment unless the department has determined that the
participant is an indigent based upon criteria established pursuant
to subdivision (3) (8) of this subsection. The Department of
Health and Human Resources shall reimburse enrollment fees to
program providers for each eligible indigent offender.
(3) (8) The Department of Health and Human Resources shall
establish by legislative rule, proposed pursuant to article three,
chapter twenty-nine-a of this code, criteria to determine the
eligibility for the payment of safety and treatment services for
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment for safety and training services for eligible
offenders.
(4) (9) On or before the fifteenth day of January 15, of each
year, the Secretary of the Department of Health and Human Resources
shall report to the Legislature on:
(A) The total number of offenders participating in the safety
and treatment program during the prior year;
(B) The total number of indigent offenders participating in
the safety and treatment program during the prior year;
(C) The total number of program providers during the prior
year; and
(D) The total amount of reimbursements paid to program provider during the prior year.
(5) (10) 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 may 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; (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 one year
or for more than a year, the license to operate a motor vehicle in
this state shall may not be reissued until: (i) At least one half
of the 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. Notwithstanding any provision in this code, a
person whose license is revoked for refusing to take a chemical
test as required by section seven, article five of this chapter for
a first offense is not eligible to reduce the revocation period by
completing the safety and treatment program.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this State shall may 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) 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 the person has
successfully completed the program.
(d) (1) 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
(n), 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 has been ordered,
the license to operate a motor vehicle shall may 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; (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 hearing have been paid.
(e) A required component of the rehabilitation program
provided in subsection (b) of this section and the education
program provided for in subsection (c) of this section 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 Department
of Health and Human Resources, Division of Alcoholism and Drug
Abuse, shall propose and implement a plan for 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 the victims are not
available 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 the offenses on victims and offenders. The plan 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.
The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall ensure that any meetings between
victims and offenders shall be nonconfrontational and ensure the
physical safety of the persons involved.
NOTE: The purpose of this bill is to create a new special
revenue fund entitled the Department of Health and Human Resources
Safety and Treatment Fund which was previously administered by the
Division of Motor Vehicles. This bill transfers the authority to
collect fees and spend money from the new fund to the Department of
Health and Human Resources and to authorize the Department of
Health and Human Resources to administer the fund. The bill also
authorizes the Division of Motor Vehicles to transfer all funds in
the Motor Vehicle Fees Fund to the newly created fund and to
transfer any property and records from the safety and treatment
program to the Department of Health and Human Resources.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
This bill was recommended for introduction and passage during
the 2010 Regular Session of the Legislature by the Joint Standing
Committee on the Judiciary.