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Introduced Version Senate Bill 534 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia Legislature

2016 regular session

FISCAL NOTEIntroduced

Senate Bill 534

By Senators Trump, Kessler, Palumbo, Romano, Walters, Woelfel, Stollings, Plymale and Blair

[Introduced February 6, 2016;
Referred to the Committee on the Judiciary.
]

 

A BILL to amend and reenact §17C‑5‑2, §17C‑5‑4 and §17C‑5‑7 of the Code of West Virginia, 1931, as amended; to amend and reenact §17C‑5A‑1a, §17C‑5A‑2, §17C‑5A‑2a, §17C‑5A‑3 and §17C‑5A‑3a of said code; and to amend said code by adding thereto a new section, designated §17C‑5C‑6, all relating to the procedures for driver’s license suspension and revocation in criminal proceedings for driving under the influence of alcohol, controlled substances or drugs (DUI); requiring that an individual arrested for DUI be given a written statement informing the individual of the legal consequences of taking or refusing to take a preliminary breath test and informing the individual of the right to receive a secondary blood test; requiring that, following an individual’s refusal to take a preliminary breath test, an arresting officer execute a signed statement that the officer administered all required warnings; eliminating all statutory provisions authorizing or requiring the Commissioner of the Division of Motor Vehicles to take administrative action upon an individual’s driver’s license on the basis of DUI in the absence of a conviction or a court‑ordered suspension or revocation; eliminating all statutory provisions authorizing or requiring the commissioner to require an individual to complete the Motor Vehicle Test and Lock program; including in the definition of “impaired state” the act of  operating a vehicle with a blood concentration of five nanograms or more of delta 9‑tetrahydrocanniabinol; requiring revocation of an individual’s driver’s license following a conviction of DUI for operating a vehicle with a blood concentration of five nanograms or more of delta 9‑tetrahydrocanniabinol; completely eliminating the Division of Motor Vehicle’s administrative hearing process for suspending and revoking driver’s licenses based on a DUI; creating a process by which an individual may notify the commissioner if his or her driver’s license has been incorrectly suspended or revoked based on mistaken identity of the defendant in a transcript of judgment or conviction; requiring the commissioner to take corrective action if a driver’s license is incorrectly suspended or revoked based on mistaken identity; completely transferring jurisdiction for suspension or revocation of a driver’s license based on DUI to the court with jurisdiction over the criminal proceedings; requiring a court to suspend a defendant’s driver’s license pending criminal proceedings if the defendant submitted to an alcohol concentration test that revealed a certain level of impairment, committed certain prior offenses, was involved in an accident causing death or bodily injury, or refused to submit to a secondary chemical test; allowing a court to suspend a defendant’s license upon a finding that the defendant would otherwise pose a risk of harm to others during the pendency of criminal proceedings; establishing the right to request and receive judicial review of driver’s license suspension orders pending criminal proceedings; establishing the scope of review for judicial review of driver’s license suspension orders; requiring a defendant to surrender his or her driver’s license upon suspension by the court; requiring the clerk of a court to transmit a copy of an order suspending or revoking a driver’s license; establishing procedures and a timeline for the Division of Motor Vehicles to transfer jurisdiction of driver’s license suspension and revocation to the courts; and eliminating all statutory provisions authorizing or requiring the commissioner to prescribe the terms and conditions of driver’s license reissuance following DUI.

Be it enacted by the Legislature of West Virginia:


That §17C‑5‑2, §17C‑5‑4 and §17C‑5‑7 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17C‑5A‑1a, §17C‑5A‑2, §17C‑5A‑2a, §17C‑5A‑3 and §17C‑5A‑3a of said code be amended and reenacted; and that said code be  amended by adding thereto a new section, designated §17C‑5C‑6, all to read as follows:

ARTICLE 5. SERIOUS TRAFFIC OFFENSES.


§17C‑5‑2. Driving under influence of alcohol, controlled substances or drugs; penalties.

(a) Definitions

(1) AImpaired State@ means a person:

(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; or

(F) Has a blood concentration of five nanograms or more of delta 9‑tetrahydrocannabinol per millileter in whole blood.

(2) “Bodily Injury” means injury that causes substantial physical pain, illness or any impairment of physical condition.

(3) “Serious Bodily Injury” means bodily injury that creates a substantial risk of death, that causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

(b) Any person who drives a vehicle in this state while he or she is in an impaired state and such impaired state proximately causes the death of any person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than three nor more than fifteen years and shall be fined not less than $1,000 nor more than $3,000: Provided, That any death charged under this subsection must occur within one year of the offense.(c) Any person who drives a vehicle in this state while he or she is in an impaired state and such impaired state proximately causes serious bodily injury to any person other than himself or herself, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than ten years and shall be fined not less than $1,000 nor more than $3,000.(d) Any person who drives a vehicle in this state while he or she is in an impaired state and such impaired state proximately causes a 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 more than one year and shall be fined not less than $200 nor more than $1,000: Provided, however, That such jail term shall include actual confinement of not less than twenty‑four hours: Provided however further, That a person sentenced pursuant to this subsection 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 is in an impaired state, but has an alcohol concentration in his or her blood of less than fifteen hundredths of one percent by weight, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for up to six months and shall be fined not less than $100 nor more than $500: And provided further, That a person sentenced pursuant to this subsection shall receive credit for any period of actual confinement he or she served upon arrest for the subject offense.(f) 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 $200 nor more than $1,000. 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, being a 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 $100 nor more than $500. 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.

(h) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is in an impaired state 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 $100 nor more than $500.

(i) Any person who knowingly permits his or her vehicle to be driven in this state by any other person who is a 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 $100 nor more than $500.

(j) 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 $25 nor more than $100. 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 $100 nor more than $500. 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 (b), (c), (d), (e), (f), (g), (h) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.

(k) Any person who drives a vehicle in this state while he or she is in an impaired state and has within the vehicle one or more other persons who are unemancipated minors who have not yet 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, and shall be fined not less than $200 nor more than $1,000: Provided, That such jail term shall include actual confinement of not less than forty‑eight hours: Provided, however, That 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.

(l) A person violating any provision of subsection(d), (e), (f), (g), (h) or(j) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in 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 $1,000 nor more than $3,000.

(m) A person violating any provision of subsection(d), (e), (f), (g), (h) or(j) of this section, for the third or any subsequent offense under this section, is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than two nor more than five years and the court may, in its discretion, impose a fine of not less than $3,000 nor more than $5,000.

(n) For purposes of subsections(l) and (m) of this section relating to second, third and subsequent offenses, the following events shall be regarded as offenses under this section:

(1) Any conviction under the provisions of subsection(b), (c), (d), (e), (f), (g) or(h) of this section or under a prior enactment of this section for an offense which occurred within the ten‑year period immediately preceding the date of arrest 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(b), (c), (d), (e), (f), (g), (h) or(i) 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 (e) of this section, which violation occurred within the ten‑year period immediately preceding the date of arrest in the current proceeding.

(o) 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.

(p) The fact that any person charged with a violation of subsection(b), (c), (d), (e), (f) or(g) of this section, or any person permitted to drive as described under subsection(h) or (i) 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(b), (c), (d), (e), (f), (g), (h) or(i) of this section.

(q) For purposes of this section, the term Acontrolled substance@ has the meaning ascribed to it in chapter sixty‑a of this code.

(r) 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 however, 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, further, 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: And 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‑5‑4. Implied consent to test; administration at direction of law‑enforcement officer; designation of type of test; definition of law‑enforcement officer.

(a) Any person who drives a motor vehicle in this state is considered to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood or breath to determine the alcohol concentration in his or her blood, or the concentration in the persons body of a controlled substance, drug, or any combination thereof.

(b) A preliminary breath analysis may be administered in accordance with the provisions of section five of this article whenever a law‑enforcement officer has reasonable cause to believe a person has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article.

(c) A secondary test of blood or breath is incidental to a lawful arrest and is to be administered at the direction of the arresting law‑enforcement officer having probable cause to believe the person has committed an offense prohibited by section two of this article or by an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article.

(d) The law‑enforcement agency that employs the arresting law‑enforcement officer shall designate the secondary tests to be administered: Notwithstanding the provisions of section seven of this article, the refusal to submit to a blood test only may not result in the revocation of the arrested persons license to operate a motor vehicle in this state.

 (e) Any person to whom a preliminary breath test is administered who is arrested shall be given a written statement advising him or her that his or her refusal to submit to the secondary chemical test pursuant to subsection (d) of this section will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty‑five days and up to life of the following:

(1) That a person’s refusal to submit to a secondary chemical test pursuant to subsection (d) of this section will result in the revocation of his or her license to operate a motor vehicle during the pendency of any criminal charges brought alleging a violation of section two of this article or an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article;

(2) That, if the person refuses to submit to such tests, the fact of this refusal may be used against him or her in court as evidence of violating section two of this article;

(3) That, if a test is taken, the results of the test may be used against him or her in court as evidence of violating section two of this article or an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article; and

(4) That, if the person first submits to the requested alcohol and/or substance tests, the person has the right to have a test or tests of his or her blood performed by a person of his or her choosing within a reasonable time of his or her arrest at the expense of the person arrested. 

(f) Any law‑enforcement officer who has been properly trained in the administration of any secondary chemical test authorized by this article, including, but not limited to, certification by the Bureau for Public Health in the operation of any equipment required for the collection and analysis of a breath sample, may conduct the test at any location in the county wherein the arrest is made: Provided, That the law‑enforcement officer may conduct the test at the nearest available properly functioning secondary chemical testing device located outside the county in which the arrest was made, if: (I) There is no properly functioning secondary chemical testing device located within the county the arrest was made; or (ii) there is no magistrate available within the county the arrest was made for the arraignment of the person arrested. A law‑enforcement officer who is directing that a secondary chemical test be conducted has the authority to transport the person arrested to where the secondary chemical testing device is located.

(g) If the arresting officer lacks proper training in the administration of a secondary chemical test, then any other law‑enforcement officer who has received training in the administration of the secondary chemical test to be administered may, upon the request of the arresting law‑enforcement officer and in his or her presence, conduct the secondary test. The results of a test conducted pursuant to this subsection may be used in evidence to the same extent and in the same manner as if the test had been conducted by the arresting law‑enforcement officer.

(h) Only the person actually administering or conducting a test conducted pursuant to this article is competent to testify as to the results and the veracity of the test.

(i) (1) For the purpose of this article, the term “law‑enforcement officer” or “police officer” means: (1) Any member of the West Virginia State Police; (2) any sheriff and any deputy sheriff of any county; (3) any member of a police department in any municipality as defined in section two, article one, chapter eight of this code; (4) any natural resources police officer of the Division of Natural Resources; and (5) any special police officer appointed by the Governor pursuant to the provisions of section forty‑one, article three, chapter sixty‑one of this code who has completed the course of instruction at a law‑enforcement training academy as provided for under the provisions of section nine, article twenty‑nine, chapter thirty of this code.

(2) In addition to standards promulgated by the Governors Committee on Crime, Delinquency and Correction, pursuant to section three, article twenty‑nine, chapter thirty of this code, governing the qualification of law‑enforcement officers and the entry‑level law‑enforcement training curricula, the Governors Committee on Crime, Delinquency and Correction shall require the satisfactory completion of a minimum of not less than six hours of training in the recognition of impairment in drivers who are under the influence of controlled substances or drugs other than alcohol.

(3) In addition to standards promulgated by the Governors Committee on Crime, Delinquency and Correction, pursuant to section three, article twenty‑nine, chapter thirty of this code, establishing standards governing in‑service law‑enforcement officer training curricula and in‑service supervisory level training curricula, the Governors Committee on Crime, Delinquency and Correction shall require the satisfactory completion of a minimum of not less than six hours of training in the recognition of impairment in drivers who are under the influence of controlled substances or drugs other than alcohol.

(4) That after December 31, 2014, A law‑enforcement officer who has not satisfactorily completed the minimum number of hours of training in the recognition of impairment in drivers who are under the influence of controlled substances or drugs other than alcohol, required by subdivisions (2) or (3), may no longer require any person to submit to secondary chemical test of his or her blood for the purposes of determining the concentration in the persons body of a controlled substance, drug, or any combination thereof.

(j) A law‑enforcement officer who has reasonable cause to believe that person has committed an offense prohibited by section eighteen, article seven, chapter twenty of this code, relating to the operation of a motorboat, jet ski or other motorized vessel, shall follow the provisions of this section in administering, or causing to be administered, a preliminary breath analysis and incidental to a lawful arrest, a secondary chemical test of the accused persons blood or breath to determine the alcohol concentration in his or her blood, or the concentration in the persons body of a controlled substance, drug, or any combination thereof.


§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 containing the warnings contained in subsection (e), section four of this article, and an oral warning 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; during the pendency of any criminal charge brought pursuant to section two of this article or an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article. and that after After fifteen minutes following the receipt of these warnings by the person under arrest 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 probable cause 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 containing the warnings contained in subsection (e), section four of this article, and an oral warning 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 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 during the pendency of any criminal charge brought pursuant to section two of this article or an ordinance of a municipality of this state which has the same elements as an offense described in section two 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 person=s license has previously been revoked 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 person=s license has previously been revoked 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 or breath 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.

(d) (b) The refusal to submit to a blood test may be admissible at the courts discretion in a trial for the offense of driving a motor vehicle in this state while under the influence of alcohol a controlled substance or drug or the combination of alcohol and drugs.


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 conviction 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, or did drive a motor vehicle while having a concentration of five nanograms or more of delta 9‑tetrahydrocannabinol per millileter in whole blood, 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 is convicted for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall forward to the Commissioner of the Division of Motor Vehicles 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 of the Division of Motor Vehicles determines that the person was convicted for an offense described in section two, article five of this chapter or an ordinance of a municipality of this state which has the same elements as an offense described in section two of this article, 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, or did drive a motor vehicle while having a concentration of five nanograms or more of delta 9‑tetrahydrocannabinol per millileter in whole blood, 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.

(d) If a person receives an order advising him or her that his or her license has been suspended or revoked following receipt by the commissioner of a transcript of a judgment of conviction, and the person believes that he or she is not the person named in the commissioner’s order, the person should notify the commissioner.  Upon receipt of this notification, the commissioner shall immediately review the contents of the judgment of conviction and the information provided by the person in question and determine if an error has been made.  If such an error is discovered, the commissioner shall immediately reverse the suspension or revocation of the person’s license and take steps to correctly identify the individual whose against whom the judgment of conviction has been entered, and immediately suspend his or her license pursuant to subsection (c) of this section. 

(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. A plea of no contest does not constitute a conviction for purposes of this section except where the person holds a commercial drivers license or operates a commercial vehicle.


§17C‑5A‑2. Pretrial suspension of driver’s license.

(a) The court shall, at the arraignment or as soon as such relevant information becomes available, suspend the motor vehicle operator’s license and motorcycle operator’s license and driving privileges of any person charged with a violation of section two, article five of this chapter who:

(1) Submitted to an alcohol concentration test that showed that the person had an alcohol concentration in his or her blood of fifteen‑hundredths of one percent or more;

(2) Submitted to a secondary chemical test that showed that the person had a blood concentration of five nanograms or more of delta 9‑tetrahydrocannabinol per millileter in whole blood;

(3) Has been convicted of one or more prior offenses as described in subsection (n), section two, article five of this chapter or has had his or her driver’s license revoked or suspended on one or more occasions for refusing to take an alcohol concentration or substance test, in the five year period immediately preceding his or her arrest;

(4) Was involved in an accident that resulted in death, bodily injury or serious bodily injury, as defined in subsection (a), section two, article five of this chapter, to a person other than the defendant; or

(5) Refused to submit to a secondary chemical test as required by section four, article five of this chapter. 

(b) Upon motion by the prosecutor, the court may, at the arraignment or as soon as such relevant information becomes available, suspend the motor vehicle operator’s license and motorcycle operator’s license and driving privileges of any person charged with a violation of section two, article five of this chapter if the court finds that allowing the person to maintain his or her license would pose a high risk of harming others during the pendency of the action.

(c) A person whose license has been suspended pursuant to this section may file a motion for judicial review of the suspension, and the court shall conduct the review in accordance with this article within thirty days after the filing of the motion.  The court shall, at the time of the suspension, advise the defendant of his or her right to the review. 

(d) When the court orders the suspension of a license pursuant to this section, the defendant shall immediately surrender the license to the clerk of the court in which the charges are pending.  If the defendant does not have his or her license, he or she shall produce and surrender the license as soon as possible thereafter.  Upon notice that the court has ordered the suspension of a person’s license, the clerk of the court in which the charges are pending shall forthwith transmit to the commissioner of the Division of Motor Vehicles a copy of the order suspending the person’s license, along with any license surrendered by the person, and the commissioner shall promptly update the division’s records to indicate that the person’s license is suspended. 

(e) Licenses suspended under this section shall remain suspended until a judgment of conviction or acquittal is entered in the case or until the court enters an order terminating the suspension, but in no event for a period longer than the maximum license suspension period applicable to the person under section two, article five of this chapter. 

(f) Any person whose driver’s license has been suspended pursuant to this section shall be given credit for all pretrial suspension time against the period of revocation imposed.


§17C‑5A‑2a. Judicial review of pretrial license suspension for test refusal.

If a person appeals a pretrial suspension of his or her license under section two of this article, the scope of the appeal is limited to determining whether one or more of the following conditions have not been met:

(a) Whether the arresting law‑enforcement officer had reasonable ground to believe the arrested person had committed a violation of section two, article five of this chapter;

(b) Whether the law‑enforcement officer requested the arrested person to submit to the chemical test or tests designated pursuant to section four, article five;

(c) Whether, at the time the test was requested, the law‑enforcement officer administered the required written and verbal warnings pursuant to section seven, article five of this chapter; and

(d) Whichever of the following is applicable:

(1) If the suspension was imposed for refusal to consent to a chemical test, whether the arrested person refused to submit to the chemical test or tests requested by the law‑enforcement officer;

(2) If the suspension was imposed for a person’s failure of a chemical test, whether the chemical test results indicate that at the time of the alleged offense the arrested person’s whole blood, blood serum or plasma, breath, or urine contained at least the concentration of alcohol or delta 9‑tetrahydrocannabinol specified in the provision of section two, article five of this chapter with which the person is charged; or

(3) If the suspension was imposed for a person who submitted to a chemical test but whose blood alcohol content registered below eight one‑hundredths of one percent, whether the individual exhibited specific behavior that demonstrated that the person’s continued operation of a motor vehicle during the pendency of the criminal action would pose a high risk of harming others.


§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 administer 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, day report centers, community correction centers or other public agencies or private entities conducting the safety and treatment program: Provided, That the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.

(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction and other programs designed to properly educate, train and rehabilitate the offender.

(c) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide for the preparation of an educational and treatment the 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: (1) A listing and evaluation of the offender's prior traffic record; (2) the characteristics and history of alcohol or drug use, if any; (3) his or her amenability to rehabilitation through the alcohol safety program; and (4) 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.

(d) There is hereby created a special revenue account within the State Treasury known as the Department of Health and Human Resources Safety and Treatment Fund. The account shall be administered by the Secretary of the Department of Health and Human Resources for the purpose of administering the comprehensive safety and treatment program established by subsection (a) of this section. The account may be invested, and all earnings and interest accruing shall be retained in the account. The Auditor shall conduct an audit of the fund at least every three fiscal years.

Effective July 1, 2010, the State Treasurer shall make a one‑time transfer of $250,000 from the Motor Vehicle Fees Fund into the Department of Health and Human Resources Safety and Treatment Fund.

(e) (1) 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 legislative rule authorized in this section.

(2) If the department determined that a participant is an indigent based upon criteria established pursuant to the legislative rule authorized by this section, the department 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.

(3) Program providers shall remit to the Department of Health and Human Resources a portion of the fee collected, which shall be deposited by the secretary of the Department of Health and Human Resources into the Department of Health and Human Resources Safety and Treatment Fund. The Department of Health and Human Resources shall reimburse enrollment fees to program providers for each eligible indigent offender.

(f) On or before January 15 of each year, the secretary of the Department of Health and Human Resources shall report to the Legislature on:

(1) The total number of offenders participating in the safety and treatment program during the prior year;

(2) The total number of indigent offenders participating in the safety and treatment program during the prior year;

(3) The total number of program providers during the prior year; and

(4) The total amount of reimbursements paid to program provider during the prior year.

(g) The Commissioner of the Division of Motor Vehicles, 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:

(1) When the period of revocation is six months, the license to operate a motor vehicle in this state may not be reissued until: (A) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect;(B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(2) 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 may not be reissued until: (A) 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; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) 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.

(3) When the period of revocation is for life, the license to operate a motor vehicle in this state may not be reissued until: (A) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(4) 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.

(h) (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 may not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.

(i) (g) A required component of the treatment 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.

(j)(h) The Secretary of the Department of Health and Human Resources shall promulgate a rule for legislative approval in accordance with article three, chapter twenty‑nine‑a of this code to administer the provisions of this section and establish a fee to be collected from each offender enrolled in the safety and treatment program. The rule shall include: (A) A reimbursement mechanism to program providers of required fees for the safety and treatment program for indigent offenders, criteria for determining eligibility of indigent offenders, and any necessary application forms; and (B) program standards that encompass provider criteria including minimum professional training requirements for providers, curriculum approval, minimum course length requirements and other items that may be necessary to properly implement the provisions of this section.

(2) The Legislature finds that an emergency exists and, therefore, the Secretary shall file by July 1, 2010, an emergency rule to implement this section pursuant to the provisions of section fifteen, article three, chapter twenty‑nine‑a of this code.

(k) (i) Nothing in this section may be construed to prohibit day report or community correction programs, authorized pursuant to article eleven‑c, chapter sixty‑two of this code, from administering a comprehensive safety and treatment program pursuant to this section.


§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 who have been convicted under section two, article five of this chapter for driving under the influence of alcohol, 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 July 1, 2007, 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) (A) Except where specified otherwise, the use of the term “program” in this section refers to the Motor Vehicle Alcohol Test and Lock Program.

(B) 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.

(C) Nothing in this section may be construed to prohibit day report or community correction programs authorized pursuant to article eleven‑c, chapter sixty‑two of this code, or a home incarceration program authorized pursuant to article eleven‑b, chapter sixty‑two of this code, from being a provider of motor vehicle alcohol test and lock systems for eligible participants as authorized by this section.

(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. The rule shall include, but is not limited to, 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 January 15 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 for driving with a blood alcohol concentration of fifteen hundredths of one percent or more, by weight, 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 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of eight hundredths of one percent, by weight, but less than fifteen hundredths, by weight, 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 twenty‑five days;

(2) For a person whose license has been revoked for a first offense for refusing a secondary chemical test, 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 for driving with a blood alcohol concentration of fifteen hundredths of one percent or more, by weight, 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration 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 while driving does any act forbidden by law or fails to perform any duty imposed by law, which act or failure proximately causes the death of any person within one year next following the act or failure, and 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, 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of eight hundredths of one percent or more, by weight, and 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, 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of eight hundredths of one percent or more, by weight, and 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, 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 for driving under the influence of alcohol, or a combination of alcohol and any controlled substance or other drug, or with a blood alcohol concentration of eight hundredths of one percent or more, by weight, and 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, 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 for driving while under the age of twenty‑one with a blood alcohol concentration of two hundredths of one percent, or more, by weight, but less than eight hundredths of one percent, or more, by weight, 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)(1) If a person applies for and is accepted into the Motor Vehicle Alcohol Test and Lock Program prior to the effective date of the revocation, the commissioner shall defer the revocation period of such person under the provisions of this section. Such deferral shall continue throughout the applicable minimum period for the use of the ignition interlock device plus an additional period equal to the applicable minimum revocation period. If a person successfully completes all terms of the Motor Vehicle Alcohol Test and Lock Program for a period equal to the minimum period for the use of the ignition interlock device pursuant to subsection (c) of this section, plus any applicable minimum revocation period, the commissioner shall waive the revocation period.

(2) The application and acceptance of a person into the Motor Vehicle Alcohol Test and Lock Program pursuant to this subdivision (1) constitutes an automatic waiver of their right to an administrative hearing. The Office of Administrative Hearings may not conduct a hearing on a matter which is the basis for a person actively participating in the Motor Vehicle Alcohol Test and Lock Program.

(f) 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.

(g) 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.

(h) 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.

(i) 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 or she 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.

(j) A person whose license has been suspended for a first offense of driving while under the age of twenty‑one with a blood alcohol concentration of two hundredths of one percent, or more, by weight, but less than eight hundredths of one percent, or more, by weight, 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.

(k) 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 $100 nor more than $500. 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 $100 nor more than $1,000: 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, Ajob site@ does not include any street or highway open to the use of the public for purposes of vehicular traffic.


ARTICLE 5C. OFFICE OF ADMINISTRATIVE HEARINGS.


§17C‑5C‑6. Phase out and termination of Office of Administrative Hearings.

In order to transfer jurisdiction to the courts of this state for the conduct of the hearing process in relation to contested cases involving license revocation, suspension or denial of licensing by the Commissioner of the Division of Motor Vehicles, the Office of Administrative Hearings, effective upon passage of this section, shall not retain jurisdiction for those matters set forth under section three of this article. The Office of Administrative Hearings shall retain jurisdiction of the matters pending before it prior to the date of the passage of this section and shall in an orderly and efficient manner, bring disposition to all such matters pending before it. Upon resolution of all such matters, the Office of Administrative Hearings shall be terminated. The Secretary of the Department of Transportation may establish interim policies and procedures to aid in the orderly and efficient process during the disposition of remaining cases before the Office of Administrative Hearings during the phase‑out period until termination, including the transfer of employees from the Office of Administrative Hearings, if feasible, to other divisions under the Department of Transportation.

 

NOTE: The purpose of this bill is to eliminate the Division of Motor Vehicle’s administrative hearing process for suspending and revoking driver’s licenses based on DUI; to establish new procedures for courts with criminal jurisdiction to suspend and revoke driver’s licenses based on DUI, to require revocation of an individual’s driver’s license following a conviction of DUI for operating a vehicle with a blood concentration of five nanograms or more of delta 9‑tetrahydrocanniabinol; and to require certain warnings concerning blood and breath tests in DUI arrests

Strike‑throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added.§17C‑5A‑2 and §17C‑5A‑2a have been completely rewritten.

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