COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 443
(By Senators Kessler, Foster, Barnes, Browning, Deem, Palumbo,
Williams, White, Green, Jenkins, Unger, Plymale, D. Facemire and
Wells)
____________
[Originating in the Committee on the Judiciary;
reported February 18, 2010.]
____________
A BILL to amend and reenact
§17C-5-2 of the Code of West Virginia,
1931, as amended
; to amend said code by adding thereto a new
section, designated §
17C-5-2b
; to amend and reenact
§
17C-5A-
1a, §
17C-5A-2, §
17C-5A-3
and §
17C-5A-3a of said code; and to
amend and reenact §
61-11-22
and §
61-11-25 of said code, all
relating to
procedures for conditional probation, deferral and
dismissal of criminal charges and expungement of arrest record
for certain persons charged for the first time with a non-
aggravated offense of driving under the influence of alcohol
conditioned upon successful completion of the motor vehicle
alcohol test and lock program; exempting from eligibility for
said conditional probation persons originally charged with any
aggravated offense of driving under the influence of alcohol,
any controlled substance, or any other drug, persons holding commercial drivers' licenses or operating a commercial
vehicle, and persons who have had their drivers' licenses
previously revoked for driving under the influence of alcohol,
any controlled substance or any other drug in any
jurisdiction; providing procedures for termination of
conditional probation upon violation of the terms thereof;
exempting records maintained by the division of motor vehicles
from expungement; preserving criminal and administrative
consequences for any subsequent charge of driving under the
influence of alcohol, and providing that any determination of
indigency made by the department of health and human resources
for purposes of subsidized participation in the safety and
treatment program shall apply to subsidization of
participation in the motor vehicle alcohol test and lock
program.
Be it enacted by the Legislature of West Virginia:
That §17C-5-2 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-5-2b; that
§
17C-5A-1a, §
17C-
5A-2, §
17C-5A-3
, and §
17C-5A-3a
of said code be amended and
reenacted, and that
§
61-11-22
and §
61-11-25 of said code be amended
and reenacted, all
to read as follows:
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;
(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 eight
hundredths of one percent or more, by weight; and
(2) While 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 two
years 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;
(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;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While 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 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;
(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 eight
hundredths of one percent or more, by weight; and
(2) While 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 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;
(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, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
except as provided in section two-b of this article, shall be
confined in jail for up to six months and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person sentenced pursuant to this subdivision shall receive credit
for any period of actual confinement he or she served upon arrest
for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days 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. A person sentenced pursuant to this
subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(f) 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 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. A person
sentenced pursuant to this subdivision shall receive credit for any
period of actual confinement he or she served upon arrest for the
subject offense.
(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;
(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;
(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 jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(h) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person 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
jail for not more than six months and shall be fined not less than
one hundred dollars nor more than five hundred dollars.
(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 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 Motor
Vehicle Alcohol Test and Lock Program as provided 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 this subsection or subsection (a), (b), (c), (d), (e), (f), (g)
or (h) of this section may not also be charged with an offense
under this subsection arising out of the same transaction or
occurrence.
(j) 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;
(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 while 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 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.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in 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.
(l) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) 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.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
types of convictions events shall be regarded as
convictions
offenses under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) 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 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), (g) or (h) of
this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current
proceeding
.; and,
(3) Any period of conditional probation imposed pursuant
section two-b of this article for violation of subsection (d) of
this article, which violation occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) 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
, or
the person has previously had a period of conditional probation
imposed pursuant to section two-b of this article.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (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), (g) or (h) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(q) The sentences provided in this section upon conviction for
a violation of this article are mandatory and are not 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
.: Provided further, That the
court may impose a term of conditional probation pursuant to
section two-b of this article to persons adjudicated thereunder.
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-5-2b. Deferral of further proceedings for certain first
offenses upon condition of participation in motor vehicle
alcohol test and lock program; procedure on charge of
violation of conditions.
(a) Except as provided in subsections (g) of this section,
whenever any person who has not previously been convicted of any
offense under this article or under any statute of the United
States or of any state relating to driving under the influence
alcohol, any controlled substance or any other drug, pleads guilty
to or is found guilty of driving under the influence of alcohol
under subsection (d), section two of this article, the court,
without entering a judgment of guilt and with the consent of the
accused, shall defer further proceedings and, notwithstanding any
provisions of this code to the contrary, place him or her on
probation upon the condition that he or she successfully completes
the Motor Vehicle Alcohol Test and Lock Program as provided in
section three-a, article five-a of this chapter. Participation
therein shall be for a period of at least one hundred and sixty
five days after he or she has served the fifteen days of license
suspension imposed pursuant to section two, article five-a of this chapter.
(b) A defendant's election to participate in deferral under
this section shall constitute a waiver of his or her right to an
administrative hearing as provided in section two, article five-a,
of this chapter.
(c)
(1) If the prosecuting attorney files a motion alleging
that the defendant during the period of the Motor Vehicle Alcohol
Test and Lock program has been removed therefrom by the Division of
Motor Vehicles, or has failed to successfully complete the program
before making a motion for dismissal pursuant to subsection (d) of
this section, the court may issue such process as is necessary to
bring the defendant before the court.
(2) A motion alleging such violation filed pursuant to
subdivision (1) must be filed during the period of the Motor
Vehicle Alcohol Test and Lock Program or, if filed thereafter, must
be filed within a reasonable time after the alleged violation was
committed.
(3) When the defendant is brought before the court, the court
shall afford the defendant an opportunity to be heard. If the court
finds that the defendant has been rightfully removed from the Motor
Vehicle Alcohol Test and Lock Program by the Division of Motor
Vehicles, the court may order, when appropriate, that the deferral
be terminated, and thereupon enter an adjudication of guilt and
proceed as otherwise provided.
(4) Should the defendant fail to complete or be removed from
the Motor Vehicle Alcohol Test and Lock Program, the defendant waives the appropriate statute of limitations and the defendant's
right to a speedy trial under any applicable Federal or State
constitutional provisions, statutes or rules of court during the
period of enrollment in the program.
(d) When the defendant shall have completed satisfactorily the
Motor Vehicle Alcohol Test and Lock Program and complied with its
conditions, the defendant may move the court for an order
dismissing the charges. This motion shall be supported by
affidavit of the defendant and by certification of the Division of
Motor Vehicles that the defendant has successfully completed the
Motor Vehicle Alcohol Test and Lock Program. A copy of the motion
shall be served on the prosecuting attorney who shall within 30
days after service advise the judge of any objections to the
motion, serving a copy of such objections on the defendant or the
defendant's attorney. If there are no objections filed within the
30-day period, the court shall thereafter dismiss the charges
against the defendant. If there are objections filed with regard to
the dismissal of charges, the court shall proceed as set forth in
subsection (c) of this section.
(e) Except as provided herein, unless a defendant adjudicated
pursuant to this subsection be convicted of a subsequent violation
of this article, discharge and dismissal under this section shall
be without adjudication of guilt and is not a conviction for
purposes of disqualifications or disabilities imposed by law upon
conviction of a crime except for those provided in article five-a
of this chapter. Except as provided in subsection (k) (l) and (m), section two of this article regarding subsequent offenses, the
effect of the dismissal and discharge shall be to restore the
person in contemplation of law to the status he or she occupied
prior to arrest and trial. No person as to whom a dismissal and
discharge have been effected shall be thereafter held to be guilty
of perjury, false swearing, or otherwise giving a false statement
by reason of his or her failure to disclose or acknowledge his or
her arrest or trial in response to any inquiry made of him or her
for any purpose other than any inquiry made in connection with any
subsequent offense as that term is defined in subsection (m),
section two of this article.
(f) There may be only one discharge and dismissal under this
section with respect to any person.
(g) No person shall be eligible for dismissal and discharge
under this section: (1) in any prosecution in which any violation
of any other provision of this article has been charged;(2)if the
person holds a commercial driver's license or operates commercial
motor vehicle(s), or (3)the person has previously had his or her
driver's license revoked under section two-a of this article or
under any statute of the United States or of any state relating to
driving under the influence alcohol, any controlled substance or
any other drug.
(h) (1) After a period of not less than one year which shall
begin to run immediately upon the expiration of a term of probation
imposed upon any person under this section, the person may apply to
the court for an order to expunge from all official records all recordations of his or her arrest, trial, and conviction, pursuant
to this section except for those maintained by the Division of
Motor Vehicles: Provided, That any person who has previously been
convicted of a felony may not make a motion for expungement
pursuant to this section.
(
2) If the prosecuting attorney objects to the expungement,
the objections shall be filed with the court within 30 days after
service of a motion for expungement and copies of the objections
shall be served on the defendant or the defendant's attorney.
(3) If the objections are filed, the court shall hold a
hearing on the objections, affording all parties an opportunity to
be heard. If the court determines after a hearing that the person
during the period of his or her probation and during the period of
time prior to his or her application to the court under this
subsection has not been guilty of any serious or repeated violation
of the conditions of his or her probation, it shall order the
expungement.
(i) Notwithstanding any provision of this code to the
contrary, any person prosecuted for a violation of subsection(d),
section two, article five of this chapter whose case is disposed of
pursuant to the provisions of this section shall be liable for any
court costs assessable against a person convicted of a violation of
subsection (j), section two, article five of this chapter. Payment
of such costs may be made a condition of probation. The costs
assessed pursuant to this subsection, whether as a term of
probation or not, shall be distributed as other court costs in accordance with section two, article three, chapter fifty, section
four, article two-a, chapter fourteen, section four, article
twenty-nine, chapter thirty and sections two, seven and ten,
article five, chapter sixty-two of this code.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-1a. Revocation upon
adjudication for driving under the
influence of alcohol, controlled substances or drugs.
(a) If a person has a term of conditional probation imposed
pursuant to section two-b, article five of this chapter, or 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 has had a term of
conditional probation imposed pursuant to section two-b, article
five of this chapter, or has been 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 term of conditional probation is the
act of a magistrate court, the magistrate court clerk shall forward
the transcript when the order imposing the term of conditional
probation is entered. 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 or imposition of a term of conditional probation pursuant to section two-b, article five of this chapter, the
commissioner shall determine that the person was convicted for an
offense described in section two, article five of this chapter, or
had a period of conditional probation imposed pursuant to section
two-b, 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 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.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or 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 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 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 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. 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 received the timely
written request for a hearing 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 hearing on the commissioner's
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 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. 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 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 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 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 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 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 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.
(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 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 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 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 shall revoke the person's license
for a period of ten 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.
(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 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 shall revoke the person's license for a period of 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.
(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 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 shall revoke the
person's license for a period of two 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.
(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 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 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 any period of participation in the Motor Vehicle
Alcohol Test and Lock Program that has been imposed by a court
pursuant to section two-b, article five of this chapter shall be
credited against any period of participation imposed by the
commissioner: Provided further, 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 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 further, 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.
(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 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 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 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.
(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 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) 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 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 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.
(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 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 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 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.
(n) 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 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.
(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 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 shall revoke the
person's license for a period of 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.
(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
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 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 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 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 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 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.
§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 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 also establish the
minimum qualifications for mental health facilities 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) 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) of this subsection. The Department of Health and Human Resources shall reimburse enrollment fees to program
providers for each eligible indigent offender.
(3) 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.: Provided, That the Department of Health and Human
Resources shall promulgate emergency and legislative rules by
October 1, 2010 in accordance with article three, chapter twenty-
nine-a of this code.
(4) The Department of Health and Human Resources shall provide
the applicant with proof of its determination regarding indigency,
which proof the applicant shall present to the interlock provider
as part of the application process provided in section three-a of
this article and/or the rules promulgated pursuant thereto.
(4) (5) On or before the fifteenth day of January, 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) (6) 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; (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 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 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 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.
§17C-5A-3a. Establishment of and participation in the Motor
Vehicle Alcohol Test and Lock Program.
(a)(1) 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, or who are serving
a term of a conditional probation pursuant to section two-b,
article five of this chapter.
(2) 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: Provided, That on and after the first day of July, two thousand
seven, any unexpended balance remaining in the Driver's
Rehabilitation Fund shall be transferred to the Motor Vehicle Fees
Fund created under the provisions of section twenty-one, article
two, chapter seventeen-a of this code and all further fees
collected shall be deposited in that fund.
(3) 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.
(4) 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.
(5) The fee for installation and removal of ignition interlock devices shall be waived for persons determined to be indigent by
the Department of Health and Human Resources pursuant to section
three, article five-a, chapter seventeen-c of this code. The
commissioner shall establish by legislative rule, proposed pursuant
to article three, chapter twenty-nine-a of this code, procedures to
be followed with regard to persons determined by the Department of
Health and Human Resources to be indigent criteria to determine the
eligibility for the payment of the installation of ignition
interlock devices in the vehicles of 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 of installations for
eligible offenders.
(6) On or before the fifteenth day of January, of each year,
the commissioner of the division of motor vehicles shall report to
the Legislature on:
(A) The total number of offenders participating in the program
during the prior year;
(B) The total number of indigent offenders participating in
the program during the prior year;
(C) The terms of any contracts with the providers of ignition
interlock devices; and
(D) The total cost of the program to the state during the
prior year.
(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: Provided, That anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must 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 pursuant to
the provisions of subsection (n), 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, during which time the suspension 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, during which time the suspension was actually in effect
or after the person's eighteenth birthday, whichever is later.
Before the commissioner approves a person to operate a motor
vehicle equipped with a motor vehicle alcohol test and lock system,
the person must agree to comply with the following conditions:
(A) If not already enrolled, the person shall enroll in and
complete the educational program provided in subsection (d),
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 shall 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, a person eligible to participate in the program under
this subsection may not 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 pursuant to the provisions of section one-a
of this article for conviction of an offense defined in subsection (d) or (g), 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
fifteen days and the minimum period for the use of the ignition
interlock device is one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
the minimum period of revocation for participation in the test and
lock program is forty-five days and the minimum period for the use
of the ignition interlock device is one year;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of
an offense defined in subsection (e), 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 forty-five days and the minimum period for
the use of the ignition interlock device is two hundred seventy
days;
(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;
(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;
(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;
(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 (j), section
two, article five of this chapter or pursuant to subsection (m),
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 his or her 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 (n), section two
of this article or subsection (i), section two, article five of
this chapter is two months and the minimum period of participation
is one year. The division shall add an additional two months to the
minimum period for the use of the ignition interlock device if the
offense was committed while a minor was in the vehicle. The
division shall add an additional six months to the minimum period
for the use of the ignition interlock device if a person other than
the driver received injuries. The division shall add an additional
two years to the minimum period for the use of the ignition
interlock device if a person other than the driver is injured and
the injuries result in that person's death. The division shall 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) Notwithstanding any other provision in this code, a person
whose license is revoked for driving under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program.
(f) 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 unless such is necessary for employment purposes.
(g) 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.
(h) 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. If the commissioner finds that any
person participating in the program pursuant to section two-b,
article five of this chapter must be removed therefrom for
violation(s) of the terms and conditions thereof, he shall notify
the person, the court that imposed the term of participation in the
program, and the prosecuting attorney in the county wherein the
order imposing participation in the program was entered.
(i) A person whose license has been suspended pursuant to the provisions of subsection (n), 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 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 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.
(j) 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 that 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 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 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 the operation 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 11. GENERAL PROVISIONS CONCERNING CRIMES.
§61-11-22. Pretrial diversion agreements; conditions; drug
court programs.
(a) A prosecuting attorney of any county of this state or a
person acting as a special prosecutor may enter into a pretrial
diversion agreement with a person under investigation or charged
with an offense against the state of West Virginia, when he or she
considers it to be in the interests of justice. The agreement is to
be in writing and is to be executed in the presence of the person's
attorney, unless the person has executed a waiver of counsel.
(b) Any agreement entered into pursuant to the provisions of subsection (a) of this section may not exceed twenty-four months in
duration. The duration of the agreement must be specified in the
agreement. The terms of any agreement entered into pursuant to the
provisions of this section may include conditions similar to those
set forth in section nine, article twelve, chapter sixty-two of
this code relating to conditions of probation. The agreement may
require supervision by a probation officer of the circuit court,
with the consent of the court. An agreement entered into pursuant
to this section must include a provision that the applicable
statute of limitations be tolled for the period of the agreement.
(c) A person who has entered into an agreement for pretrial
diversion with a prosecuting attorney and who has successfully
complied with the terms of the agreement is not subject to
prosecution for the offense or offenses described in the agreement
or for the underlying conduct or transaction constituting the
offense or offenses described in the agreement, unless the
agreement includes a provision that upon compliance the person
agrees to plead guilty or nolo contendere to a specific related
offense, with or without a specific sentencing recommendation by
the prosecuting attorney.
(d) No person charged with a violation of the provisions of
section two, article five, chapter seventeen-c of this code may
participate in a pretrial diversion program
. : Provided, That a
court may defer proceedings in accordance with section two-b,
article five, chapter seventeen-c of this code. No person charged
with a violation of the provisions of section twenty-eight, article two of this chapter may participate in a pretrial diversion program
unless the program is part of a community corrections program
approved pursuant to the provisions of article eleven-c, chapter
sixty-two of this code. No person indicted for a felony crime of
violence against the person where the alleged victim is a family or
household member as defined in section two hundred three, article
twenty-seven, chapter forty-eight of this code or indicted for a
violation of the provisions of sections three, four or seven,
article eight-b of this chapter is eligible to participate in a
pretrial diversion program. No defendant charged with a violation
of the provisions of section twenty-eight, article two of this
chapter or subsections (b) or (c), section nine, article two of
this chapter where the alleged victim is a family or household
member is eligible for pretrial diversion programs if he or she has
a prior conviction for the offense charged or if he or she has
previously been granted a period of pretrial diversion pursuant to
this section for the offense charged. Notwithstanding any provision
of this code to the contrary, defendants charged with violations of
the provisions of section twenty-eight, article two, chapter
sixty-one of this code or the provisions of subsection (b) or (c),
section nine, article two of said chapter where the alleged victim
is a family or household member as defined by the provisions of
section two hundred three, article twenty-seven, chapter
forty-eight of this code are ineligible for participation in a
pretrial diversion program before the July 1, 2002, and before the
community corrections subcommittee of the Governor's Committee on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code, in consultation with the working group of the
subcommittee, has approved guidelines for a safe and effective
program for diverting defendants charged with domestic violence.
(e) The provisions of section twenty-five of this article are
inapplicable to defendants participating in pretrial diversion
programs who are charged with a violation of the provisions of
section twenty-eight, article two, chapter sixty-one of this code.
The community corrections subcommittee of the Governor's Committee
on Crime, Delinquency and Correction established pursuant to the
provisions of section two, article eleven-c, chapter sixty-two of
this code shall, upon approving any program of pretrial diversion
for persons charged with violations of the provisions of section
twenty-eight, article two, chapter sixty-one of this code,
establish and maintain a central registry of the participants in
the programs which may be accessed by judicial officers and court
personnel.
§61-11-25. Expungement of criminal records for those found not
guilty of crimes or against whom charges have been dismissed.
(a) Any person who has been charged with a criminal offense
under the laws of this state and who has been found not guilty of
the offense, or against whom charges have been dismissed, and not
in exchange for a guilty plea to another offense, may make a motion
in the circuit court in which the charges were filed to expunge all
records relating to the arrest, charge or other matters arising out of the arrest or charge:
Provided, That no record in the Division
of Motor Vehicles may be expunged by virtue of any order of
expungement entered pursuant to section two-b, article five,
chapter seventeen-C of this code: Provided
further, That any person
who has previously been convicted of a felony may not make a motion
for expungement pursuant to this section. The term records as used
in this section includes, but is not limited to, arrest records,
fingerprints, photographs, index references or other data whether
in documentary or electronic form, relating to the arrest, charge
or other matters arising out of the arrest or charge. Criminal
investigation reports and all records relating to offenses subject
to the provisions of article twelve, chapter fifteen of this code
because the person was found not guilty by reason of mental
illness, mental retardation or addiction are exempt from the
provisions of this section.
(b) The expungement motion shall be filed not sooner than
sixty days following the order of acquittal or dismissal by the
court. Any court entering an order of acquittal or dismissal shall
inform the person who has been found not guilty or against whom
charges have been dismissed of his or her rights to make a motion
for expungement pursuant to this section.
(c) Following the filing of the motion, the court may set a
date for a hearing. If the court does so, it shall notify the
prosecuting attorney and the arresting agency of the motion and
provide an opportunity for a response to the expungement motion.
(d) If the court finds that there are no current charges or proceedings pending relating to the matter for which the
expungement is sought, the court may grant the motion and order the
sealing of all records in the custody of the court and expungement
of any records in the custody of any other agency or official
including law-enforcement records. Every agency with records
relating to the arrest, charge or other matters arising out of the
arrest or charge, that is ordered to expunge records, shall certify
to the court within sixty days of the entry of the expungement
order, that the required expungement has been completed. All orders
enforcing the expungement procedure shall also be sealed.
(e) Upon expungement, the proceedings in the matter shall be
deemed never to have occurred. The court and other agencies shall
reply to any inquiry that no record exists on the matter. The
person whose record is expunged shall not have to disclose the fact
of the record or any matter relating thereto on an application for
employment, credit or other type of application.
(f) Inspection of the sealed records in the court's possession
may thereafter be permitted by the court only upon a motion by the
person who is the subject of the records or upon a petition filed
by a prosecuting attorney that inspection and possible use of the
records in question are necessary to the investigation or
prosecution of a crime in this state or another jurisdiction. If
the court finds that the interests of justice will be served by
granting the petition, it may be granted.
__________
(NOTE: The purpose of this bill is to provide people charged with a first offense for driving under the influence of alcohol
with a blood alcohol level less than fifteen hundredths of one
percent, by weight an opportunity to have further proceedings in
their cases deferred pending successful completion of the motor
vehicle alcohol test and lock program, provided that such deferral
would function as a conviction for purposes of license revocation,
and any subsequent offense of driving while under the influence .
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.) Section § 17C-5-2a is new; therefore, strike-throughs
and underscoring have been omitted.)