Senate Bill No. 186
(By Senator Kessler)
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[Introduced January 13, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §17C-5-7 of the Code of West Virginia,
1931, as amended; to amend said code by adding thereto a new
section, designated §17C-5A-1b; and to amend and reenact
§17C-5A-2 of said code, all relating to creating the office of
administrative law judges within the Division of Motor
Vehicles; and outlining the powers of the administrative law
judges.
Be it enacted by the Legislature of West Virginia:
That §17C-5-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §17C-5A-1b; and that §17C-5A-2 of
said code be amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§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privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.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 secondary chemical test, the
tests shall not be given:
Provided, That prior to the refusal, the
person is given an oral warning and a written statement advising
him or her that his or her refusal to submit to the secondary 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 forty-five days and up to life; and that after fifteen
minutes following the warnings the refusal is considered final.
The arresting officer after that period of time expires has no
further duty to provide the person with an opportunity to take the
secondary test. The officer shall, within forty-eight hours of the
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 the person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (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 drugs; (3) the person refused to submit to the
secondary chemical test finally designated in the manner provided
in section four of this article; and (4) the person was given a
written statement advising him or her that his or her license to operate a motor vehicle in this state would be revoked for a period
of at least forty-five days and up to life if he or she refused to
submit to the 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 constitutes an oath
or affirmation by the person signing the statement that the
statements contained in the statement 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.
Upon receiving the statement the commissioner shall make and enter
an order revoking the 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 designated secondary
chemical test, the commissioner shall make and enter an order
revoking the person's license to operate a motor vehicle in this
state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter:
Provided, That a person
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program.
The application for participation in the Motor Vehicle Alcohol Test and Lock Program shall be considered to be a waiver of the hearing
provided in section two of said article. If the
commissioner
person's license has previously
been revoked
the person's license
under the provisions of this section, the commissioner shall, for
the refusal to submit to the designated secondary chemical test,
make and enter an order revoking the person's license to operate a
motor vehicle in this state for a period of ten years:
Provided,
however, 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 person's license has previously
been revoked
the person's license more than once under the
provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter
an order revoking the person's license to operate a motor vehicle
in this state for a period of life. A copy of each order shall be
forwarded to the 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. A revocation shall not become effective until ten days
after receipt of the copy of the order. Any person who is
unconscious or who is otherwise in a condition rendering him or her
incapable of refusal shall be considered 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 the 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 under this
section 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 10, 1983; 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 10, 1983.
(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.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1b. Creation of office of administrative law judges;
powers of chief administrative law judge and said
office.
(a) There is hereby created within the Division of Motor
Vehicles the Division of Motor Vehicles Office of Administrative
Law Judges which shall be referred to as the office of judges. The
office of judges shall be under the supervision of a chief
administrative law judge who shall be appointed by the Governor,
with the advice and consent of the Senate.
(b) The chief administrative law judge shall employ
administrative law judges and other personnel that are necessary
for the proper conduct of a system of administrative review of
orders issued by the division, pursuant to section one, article
five-a, chapter seventeen-c of this code, that have been objected
to by a party, and the conduct of hearings in which it is alleged
that the person whose license is at issue committed any of the acts
described in subsections (g) through (o) of section two, article five-a, chapter seventeen-c of this code. The employees shall be
in the classified service of the state. Qualifications,
compensation and personnel practice relating to the employees of
the office of judges, other than the chief administrative law
judge, shall be governed by the provisions of this code and rules
of the classified service pursuant to article six, chapter twenty-
nine of this code. All additional administrative law judges shall
be persons who have been admitted to the practice of law in this
state and shall also have had at least two years of experience as
an attorney. The chief administrative law judge shall supervise
the other administrative law judges and other personnel which
collectively shall be referred to in this chapter as the office of
judges.
(c) The administrative expense of the office of judges shall
be included within the annual budget of the Division of Motor
Vehicles.
(d) The chief administrative law judge has the power to hear
and determine all disputed claims in accordance with the provisions
of this article, take oaths, examine witnesses, issue subpoenas,
establish the amount of witness fees, keep records and make reports
that are necessary for disputed claims and exercise any additional
powers, including the delegation of powers to administrative law
judges that are necessary for the proper conduct of a system of
administrative review of disputed claims and conduct of hearings concerning acts described in subsections (g) through (o) of section
two, article five-a, chapter seventeen-c of this code. The chief
administrative law judge shall make reports that are requested of
him or her by the Secretary of Transportation.
§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
Written objections to an order of revocation or suspension under
the provisions of section one of this article or section seven,
article five of this chapter,
shall be filed with the office of
judges. Upon the receipt of an objection, the office of judges
shall notify the Commissioner of the Division of Motor Vehicles,
who shall stay the imposition of the period of revocation or
suspension and afford the person an opportunity to be heard. The
written
request objection must be filed with
the commissioner
office of judges 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 suspension or no hearing
will be granted. The hearing shall be before
the commissioner or
a hearing examiner retained by the commissioner an administrative
law judge who shall rule on evidentiary issues and
all of the
pertinent provisions of article five, chapter twenty-nine-a of this
code shall apply. Upon consideration of the designated record, the
chief administrative law judge or other authorized adjudicator within the office of judges shall, based on the determination of
the facts of the case and applicable law, render a decision
affirming, reversing or modifying the action protested. The
decision shall contain findings of fact and conclusions of law and
shall be mailed to all parties. 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. The commissioner may
reject or modify the hearing examiner's proposed findings of fact
and conclusions of law, in writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division
located in or near the county in which the arrest was made in this
state or at some other suitable place in the county in which the
arrest was made if an office of the division is not available.
(c) Any hearing shall be held within one hundred eighty days
after the date upon which
the commissioner office of judges
received the timely written
request objection for a hearing unless
there is a postponement or continuance. The
commissioner office of
judges may postpone or continue any hearing on the
commissioner's office of judges own motion or upon application for each person
or
of the Division of Motor Vehicles for good cause shown. The
commissioner office of judges shall adopt and implement by a
procedural rule written policies governing the postponement or
continuance of any hearing on the
commissioner's office of judges'
own motion or for the benefit of any law-enforcement officer or any
person requesting the hearing and the policies shall be enforced
and applied to all parties equally. For the purpose of conducting
the hearing, the
commissioner office of judges may 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, constitutes a subpoena to appear at the hearing
without the necessity of payment of fees by the Division of Motor
Vehicles.
(d) Any investigating officer who submits a statement pursuant
to section one of this article that results in a hearing pursuant
to this section shall not attend the hearing on the subject of that
affidavit unless requested to do so by the party whose license is
at issue in that hearing or by the commissioner
or by the office of
judges. The hearing request form shall clearly and concisely
inform a person seeking a hearing of the fact that the
investigating officer will only attend the hearing if requested to do so and provide for a box to be checked requesting the
investigating officer's attendance. The language shall appear
prominently on the hearing request form. The Division of Motor
Vehicles is solely responsible for causing the attendance of the
investigating officers. Law-enforcement officers shall be
compensated for the time expended in their travel and appearance
before the
commissioner office of judges 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. If the party whose license is at issue does not request the
investigating officer to attend the hearing, the
commissioner
office of judges shall consider the written statement, test results
and any other information submitted by the investigating officer
pursuant to section one of this article in that officer's absence.
(e) 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 drugs, 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 the designated 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 office of judges may propose a legislative
rule in compliance with the provisions of article three, chapter
twenty-nine-a of this code which 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 under section seven, article five of this chapter 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 office of judges in writing of his or her 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
office of judges had stipulated the admissibility of the evidence.
Any 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 office of judges 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 office of judges 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.
(f) In the case of a hearing in which 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 office of judges shall
make specific findings as to: (1) Whether the investigating
law-enforcement officer had reasonable grounds to believe the
person to have been driving while under the influence of alcohol,
controlled substances or drugs, 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 the person committed an offense involving
driving under the influence of alcohol, controlled substances or
drugs, or was lawfully taken into custody for the purpose of
administering 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.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, 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 office of judges also finds by a preponderance of
the evidence that the person when 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 office of judges further finds that the influence of
alcohol, controlled substances or drugs or the alcohol
concentration in the blood was a contributing cause to the death,
the
commissioner office of judges shall revoke the person's license for a period of ten years:
Provided, That if the
commissioner
person's license has previously
been 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 drugs, 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 office of judges
also finds by a preponderance of the evidence that the person when
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 office of judges shall revoke the
person's license for a period of five years:
Provided, That if the
commissioner person's license has previously
been 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.
(i) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, 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 office of judges
also finds by a preponderance of the evidence that the person when
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
or office of judges shall revoke the person's license for a period
of two years:
Provided, That if the
commissioner license has
previously
been 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 person's license has previously
been 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 office of judges finds by a
preponderance of the evidence that the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, 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, but less than fifteen hundredths of one
percent or more, by weight, 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 drugs,
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
office of judges shall revoke the person's license for a period of
six months or a period of fifteen days with an additional one
hundred and twenty days of participation in the Motor Vehicle
Alcohol Test and Lock Program in accordance with the provisions of
section three-a of this article:
Provided, That a person whose
license is revoked for driving while under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test
and Lock Program:
Provided, however, That if the
commissioner
person's license has previously
been 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 further, That if the
commissioner person's license has
previously
been 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.
(k) (1) If in addition to finding by a preponderance of the evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the
commissioner office of judges also finds by a preponderance of the
evidence that the person did drive a motor vehicle while having an
alcohol concentration in the person's blood of fifteen hundredths
of one percent or more, by weight, the
commissioner office of
judges shall revoke the person's license for a period of forty-five
days with an additional two hundred and seventy days of
participation in the Motor Vehicle Alcohol Test and Lock Program in
accordance with the provisions of article three-a, article five-a,
chapter seventeen-c of this code:
Provided, That if the
commissioner person's license has previously
been 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 person's
license has previously
been 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.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the alcohol test and lock device may be installed or is otherwise
incapable of participating in the Motor Vehicle Alcohol Test and
Lock Program, the period of revocation shall be one hundred eighty
days:
Provided, That if the
commissioner person's license has
previously
been 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 person's license has previously
been 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) 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 office of judges also finds by
a preponderance of the evidence that the person when 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 office of judges 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 years:
Provided, That if the
commissioner person's license
has previously
been 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.
(m) 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 office of judges also finds by
a preponderance of the evidence that the person when 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 office of
judges further finds that the alcohol concentration in the blood
was a contributing cause to the bodily injury, the
commissioner
office of judges shall revoke the person's license for a period of
two years:
Provided, That if the
commissioner person's license has
previously
been 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 person's license has previously
been 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) If the
commissioner office of judges 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 office of judges shall suspend the
person's license for a period of sixty days:
Provided, That if the
commissioner person's license has previously
been 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.
(o) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, 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 office of judges
also finds by a preponderance of the evidence that the person when
driving did have on or within the motor vehicle another person who
has not reached his or her sixteenth birthday, the
commissioner
office of judges shall revoke the person's license for a period of one year:
Provided, That if the
commissioner person's license has
previously
been 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 person's license has previously
been 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.
(p) 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; or
(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.
(q) In the case of a hearing in which a person is accused of
refusing to submit to a designated secondary test, the
commissioner
office of judges 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 committed 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 forty-five days and up to
life if the person refused to submit to the test finally designated
in the manner provided in said section.
(r) If the
commissioner office of judges finds by a
preponderance of the evidence that: (1) The investigating 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) the person committed an offense relating to driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or drugs; (3) the
person refused to submit to 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
forty-five days and up to life if the person refused to submit to
the test finally designated, the
commissioner office of judges
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. 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.
(s) If the
commissioner office of judges finds to the contrary
with respect to the above issues the
commissioner office of judges
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 office of judges' 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 hearing, the revocation of the person's
license to operate a motor vehicle in this state shall be stayed.
If the
commissioner office of judges 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
office of judges 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 office of judges may not be
compelled to transmit a certified copy of the file or the
transcript of the hearing to the circuit court in less than sixty
days.
(t) 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.
(u) 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 the funds to the Commission on Drunk Driving
Prevention.
NOTE: The purpose of this bill is to create the office of
administrative law judges within the Division of Motor Vehicles;
outlining the powers of the administrative law judges; and making
the code uniform in language
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-5A-1b is new; therefore, strike-throughs and underscoring
have been omitted.