COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 535
(By Senators Foster, Jenkins, Kessler, Green,
Hunter, Wells, Hall, McKenzie and White)
____________
[Originating in the Committee on the Judiciary;
reported February 18, 2008.]
____________
A BILL to amend and reenact §17B-4-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §17C-5-2 and §17C-5-7
of said code; to amend said code by adding thereto a new
section, designated §17C-5-4a; and to amend and reenact §17C-
5A-1, §17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code, all
relating to modifications to administrative and criminal
penalties for driving a motor vehicle under the influence of
alcohol and/or drugs; reducing the administrative sanctions
for driving a vehicle with a lawfully suspended or revoked
license; removing the mandatory 24-hour incarceration for
first offense driving under the influence; deleting a
provision criminalizing the operation of a motor vehicle by
habitual drug user; creating an aggravated offense of driving
with a blood alcohol concentration of fifteen hundredths of
one percent or more, by weight; requiring drivers involved in
a motor vehicle crash that results in the death or serious bodily injury to another person to submit to a chemical test
of their blood, breath or urine; permitting participation in
the Motor Vehicle Alcohol Test and Lock Program for first
offense driving under the influence; removing superfluous
provisions related to children operating a motor vehicle under
the influence of alcohol; permitting law-enforcement officers
to submit an affidavit rather than attend the administrative
hearing unless subpoenaed; providing incentives for
participation in the Motor Vehicle Alcohol Test and Lock
Program for first offense driving under the influence;
providing enhanced administrative sanctions for persons
operating a motor vehicle with a blood alcohol concentration
of fifteen hundredths of one percent or more, by weight;
making certain technical changes to administrative procedures;
transferring primary authority of the Safety and Treatment
Program to the Department of Health and Human Resources;
providing for removal of the Driver's Rehabilitation Fund from
the jurisdiction of the Division of Motor Vehicles and placing
it under the jurisdiction of the Secretary of the Department
of Health and Human Resources; providing that a person whose
driver's license is revoked for refusing to take a secondary
chemical test is not eligible to reduce the revocation period
by completing the safety and treatment program; removing
requirement that victim impact panels be implemented pursuant
to legislative rules; reducing the minimum period of
revocation for participation in the test and lock program; increasing minimum periods of participation in the ignition
interlock device for aggravating offenses; and denying
participation in the Motor Vehicle Alcohol Test and Lock
Program for persons whose driver's license is revoked for
driving under the influence of drugs.
Be it enacted by the Legislature of West Virginia:
That §17B-4-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code
be amended and reenacted; that said code be amended by adding
thereto a new section, designated §17C-5-4a; and that §17C-5A-1,
§17C-5A-2, §17C-5A-3 and §17C-5A-3a of said code be amended and
reenacted, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the
influence of alcohol, controlled substances or
drugs, or while having alcoholic concentration in
the blood of eight hundredths of one percent or
more, by weight, or for refusing to take secondary
chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of
this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended or revoked by this state or any other jurisdiction is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the second
offense, the person is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in
a county or regional jail for a
period of
not less than ten two days
nor more than five days and,
in addition to the mandatory jail sentence, shall be fined not less
than one hundred dollars nor more than five hundred dollars; for
the third or any subsequent offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a
county or regional jail for
a period of not less than thirty days
nor more than ninety days six months and,
in addition to the
mandatory jail sentence, shall be fined not less than
one two
hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs,
or any combination
thereof, or for driving while having an alcoholic concentration in
his or her blood of eight hundredths of one percent or more, by
weight, or for refusing to take a secondary chemical test of blood
alcohol content, is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be confined in
a county or
regional jail for
a period of not less than thirty days nor more
than six months and
in addition to the mandatory jail sentence,
shall be fined not less than one hundred dollars nor more than five hundred dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a
county or regional jail for a period of
not less than six months
nor more than one year and
in addition to the mandatory jail
sentence, shall be fined not less than one thousand dollars nor
more than three thousand dollars; for the third or any subsequent
offense, the person is guilty of a felony and, upon conviction
thereof, shall be imprisoned in a state correctional facility for
not less than one year nor more than three years and, in addition
to the mandatory prison sentence, shall be fined not less than
three thousand dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section upon
a charge of driving a vehicle while the license of such person was
lawfully suspended or revoked, the division shall extend the period
of
such suspension or revocation for an additional period of
one
year six months which may be served concurrently with any other
suspension or revocation. from and after the date such person would
otherwise have been entitled to apply for a new license. Upon
receiving a record of the second or subsequent conviction of any
person under subsection (a) of this section upon a charge of
driving a vehicle while the license of such person was lawfully
suspended or revoked, the division shall extend the period of such
suspension or revocation for an additional period of
one year
ninety days which may be served concurrently with any other
suspension or revocation. from and after the date such person would otherwise have been entitled to apply for a new license.
(d) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended for driving while under the age of
twenty-one years with an alcohol concentration in his or her blood
of two hundredths of one percent or more, by weight, but less than
eight hundredths of one percent, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in
a
county or regional jail for twenty-four hours or shall be fined not
less than fifty dollars nor more than five hundred dollars, or
both.
Upon receiving a record of a first or subsequent conviction
under this subsection for a charge of driving a vehicle while the
license of such person was lawfully suspended or revoked, the
division shall extend the period of such suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to the
provisions of article eleven-b, chapter sixty-two of this code may
be used as an alternative sentence to any period of incarceration
required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others, and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than 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; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than ninety days nor more than one year and shall be
fined not less than five hundred dollars nor more than one thousand
dollars.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) When so driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person
other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in 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; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight
but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for
up to 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.
(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.
(e) (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.
(f) (g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months and shall be
fined not less than one hundred dollars nor more than five hundred
dollars.
(g) (h) Any person who knowingly permits his or her vehicle to
be driven in this state by any other person who 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.
(h) (i) Any person under the age of twenty-one years who
drives a vehicle in this state while he or she has an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, for a first offense under this subsection, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not less
than twenty-five dollars nor more than one hundred dollars. For a
second or subsequent offense under this subsection, the person is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail for twenty-four hours, and shall be fined not less
than one hundred dollars nor more than five hundred dollars. A
person who is charged with a first offense under the provisions of
this subsection may move for a continuance of the proceedings, from
time to time, to allow the person to participate in the vehicle
alcohol test and lock program as provided in section three-a,
article five-a of this chapter. Upon successful completion of the program, the court shall dismiss the charge against the person and
expunge the person's record as it relates to the alleged offense.
In the event the person fails to successfully complete the program,
the court shall proceed to an adjudication of the alleged offense.
A motion for a continuance under this subsection may not be
construed as an admission or be used as evidence.
A person arrested and charged with an offense under the
provisions of subsection (a), (b), (c), (d), (e), (f), (g),
(h) or
(i) of this section may not also be charged with an offense under
this subsection arising out of the same transaction or occurrence.
(i) (j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol; or
(B) Is under the influence of any controlled substance; or
(C) Is under the influence of any other drug; or
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person when so driving has on or within the motor
vehicle one or more other persons who are un-emancipated 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.
(j) (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.
(k) (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.
(l) (m) For purposes of subsections
(j) and (k)
and (l) of
this section relating to second, third and subsequent offenses, the
following types of convictions are to be regarded as convictions
under this section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e)
, or (f)
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)
, or (g)
or (h)
of this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(m) (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.
(n) (o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d)
, or (e)
or (f) of this section, or
any person permitted to drive as described under subsection
(f) or
(g)
or (h) of this section, is or has been legally entitled to use
alcohol, a controlled substance or a drug does not constitute a
defense against any charge of violating subsection (a), (b), (c),
(d), (e), (f)
, or (g)
or (h) of this section.
(o) (p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(p) (q) The sentences provided herein upon conviction for a
violation of this article are mandatory and may not be subject to
suspension or probation
: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section. An order for home detention by
the court pursuant to the provisions of article eleven-b of said
chapter may be used as an alternative sentence to any period of
incarceration required by this section for a first or subsequent
offense
: Provided, however, That for any period of home
incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no
fewer than five days of the total period of home confinement
ordered and the offender may not leave home for those five days
notwithstanding the provisions of section five, article eleven-b,
chapter sixty-two of this code
: Provided further, That for any
period of home incarceration ordered for a person convicted of a
third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
§17C-5-4a. Mandatory chemical test required for drivers involved
in motor vehicle crashes when death or serious
bodily injury occurs.
(a)When a law-enforcement officer has probable cause to
believe that the driver of a motor vehicle is under the influence
of alcohol, any controlled substance or any other drugs, or any
combination thereof, and such driver is involved in a motor vehicle
crash that results in the death of another person or bodily injury
that the officer has probable cause to believe will result in the
death of another person, the driver shall submit to a chemical test
of his or her blood, or urine, at the direction of the law-
enforcement officer, designed to detect and measure the existence
of alcohol, controlled substances or any other drugs, or any
combination thereof.
(b)The Commissioner shall revoke the license of a person who
refuses to submit to a test under this section as provided in
subsection C, section three-a, article five of this chapter:
Provided, That prior to such refusal, the person is given an oral
warning and a written statement advising him or her that his or her
refusal to submit to a test hereunder will result in the revocation
of his or her license to operate a motor vehicle in this state for
a period of at least forty five days and up to life; and that after
fifteen minutes following the warnings said refusal shall be deemed
to be final. The officer shall after said period of time expires
have no further duty to provide the person with an opportunity to
take the test. The officer shall within forty-eight hours of such
refusal, sign and submit to the Commissioner of Motor Vehicles a
written statement of the officer that: (1) Such person was a driver
involved in a motor vehicle crash that resulted in the death of another person or bodily injury that the officer had probable cause
to believe would result in the death of another person;(2) the
officer had probable cause to believe such person had been driving
a motor vehicle in this state while under the influence of alcohol,
controlled substances or drugs;(3) such person refused to submit to
a chemical test of his or her blood or urine, at the direction of
the law-enforcement officer, designed to detect and measure the
existence of alcohol, controlled substances or any other drugs, or
any combination thereof; and (4) such person was given a written
statement advising him or her that his or her license to operate a
motor vehicle in this state would be revoked for a period of at
least
one year forty-five days and up to life if he or she refused
to submit to that test. The signing of the statement required to
be signed by this section shall constitute an oath or affirmation
by the person signing such statement that the statements contained
therein are true and that any copy filed is a true copy. 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 such person's license to operate a motor vehicle in this
state for the period prescribed by this section.
For the first refusal to submit to the designated a test
chemical test of blood or urine under this section, the
commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this state for a period of
one year or forty-five days with an additional mandatory 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, chapter seventeen-c of this code: 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 deemed to be a waiver of the hearing
provided in section two, article five-A of this chapter. If the
commissioner has previously revoked the person's license under the
provisions of this section, the commissioner shall, for the refusal
to submit to a chemical test as requested, make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of ten years. If the commissioner has
previously revoked the person's license more than once under the
provisions of this section, the commissioner shall, for the refusal
to submit to the chemical test as requested, make and enter an
order revoking such 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. No such revocation shall 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 deemed not to have withdrawn his or
her consent for a test of his or her blood or urine as provided in
this section 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 hereunder shall run concurrently with the period
of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which
gave rise to the arrest for driving a motor vehicle while under the
influence of alcohol, controlled substances or drugs and the
subsequent refusal to undergo the test finally designated in
accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two of this
article, for conduct which occurred on or after June tenth, one
thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter, for conduct which occurred on or
after June tenth, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
§17C-5-7. 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 such refusal,
the person is given
a an oral warning and a written statement
advising him
or her that his
or her refusal to submit to the
secondary test finally designated will result in the revocation of
his
or her license to operate a motor vehicle in this state for a
period of at least 45 days and up to life;
and that after fifteen
minutes following the warnings If a person initially refuses to
submit to the designated secondary chemical test after being
informed in writing of the consequences of such refusal, he shall
be informed orally and in writing that after fifteen minutes said
refusal shall be deemed to be final.
and the The arresting officer
shall after said period of time expires have no further duty to
provide the person with an opportunity to take the secondary test.
The officer shall within forty-eight hours of such refusal, sign
and submit to the Commissioner of Motor Vehicles a written statement of the officer that: (1) He
or she had reasonable grounds
to believe such person had been driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs; (2) such person was lawfully placed under arrest for an
offense relating to driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (3)
such person refused to submit to the secondary chemical test
finally designated in the manner provided in section four of this
article; and (4) such person was given a written statement advising
him
or her that his
or her license to operate a motor vehicle in
this state would be revoked for a period of at least
one year
forty-five days and up to life if he
or she refused to submit to
the secondary test finally designated in the manner provided in
section four of this article. The signing of the statement
required to be signed by this section shall constitute an oath or
affirmation by the person signing such statement that the
statements contained therein are true and that any copy filed is a
true copy.
Such 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 such person's license to operate a motor vehicle
in this state for the period prescribed by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order revoking such person's license to operate a motor vehicle in this
state for a period of one year
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, chapter seventeen-c of this code:
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 deemed
to be a waiver of the hearing provided in section two, article
five-A of this chapter. If the commissioner has previously revoked
the person's license under the provisions of this section, the
commissioner shall, for the refusal to submit to the designated
secondary chemical test, make and enter an order revoking such
person's license to operate a motor vehicle in this state for a
period of ten years
: Provided, That the license may be reissued in
five years in accordance with the provisions of section three,
article five-a of this chapter. If the commissioner has previously
revoked the person's license more than once under the provisions of
this section, the commissioner shall, for the refusal to submit to
the designated secondary chemical test, make and enter an order
revoking such person's license to operate a motor vehicle in this
state for a period of life
: Provided, however, That the license
may be reissued in ten years in accordance with the provisions of
section three, article five-a of this chapter. A copy of each
such
order shall be forwarded to
such 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. No such revocation shall become
effective until ten days after receipt of the copy of
such the
order. Any person who is unconscious or who is otherwise in a
condition rendering him
or her incapable of refusal, shall be
deemed not to have withdrawn his
or her consent for a test of his
or her blood, breath or urine as provided in section four of this
article and the test may be administered although
such 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 hereunder shall run concurrently with the period
of any suspension or revocation imposed in accordance with other
provisions of this code and growing out of the same incident which
gave rise to the arrest for driving a motor vehicle while under the
influence of alcohol, controlled substances or drugs and the
subsequent refusal to undergo the test finally designated in
accordance with the provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the same elements as an offense described in section two of this
article, for conduct which occurred on or after June tenth, one
thousand nine hundred eighty-three; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter, for conduct which occurred on or
after June tenth, one thousand nine hundred eighty-three.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1. Implied consent to administrative procedure;
revocation for driving under the influence of
alcohol, controlled substances or drugs or
refusal to submit to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be revoked
because he or she did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or combined
influence of alcohol or controlled substances or drugs, or did
drive a motor vehicle while having an alcohol concentration in his
or her blood of eight hundredths of one percent or more, by weight,
or did refuse to submit to any
designated secondary chemical test
required under the provisions of article five, chapter seventeen-C
of this code, or did drive a motor vehicle while under the age of
twenty-one years with an alcohol concentration in his or her blood
of two hundredths of one percent or more, by weight, but less than
eight hundredths of one percent, by weight.
(b) Any law-enforcement officer arresting a person for an
offense described in section two, article five of this chapter or
for an offense described in a municipal ordinance which has the
same elements as an offense described in said section shall report
to the commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours of the arrest the name and
address of the person so arrested. The report shall include the
specific offense with which the person is charged and, if
applicable, a copy of the results of any secondary tests of blood,
breath or urine. The signing of the statement required to be
signed by this subsection shall constitute an oath or affirmation
by the person signing the statement that the statements contained
therein are true and that any copy filed is a true copy. The
statement shall contain upon its face a warning to the officer
signing that to willfully sign a statement containing false
information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this
section, the commissioner shall determine that a person was
arrested for an offense described in section two, article five of
this chapter or
for an offense described in a municipal ordinance
which has the same elements as an offense described in said
section, and that the results of any secondary test or tests
indicate that at the time the test or tests were administered the
person had, in his or her blood, an alcohol concentration of eight
hundredths of one percent or more, by weight, or at the time the
person was arrested he or she was under the influence of alcohol,
controlled substances or drugs, the commissioner shall make and
enter an order revoking
or suspending the person's license to
operate a motor vehicle in this state. If the results of the tests
indicate that at the time the test or tests were administered the
person was under the age of twenty-one years and had an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight, the commissioner shall make and enter an order
suspending the person's license to operate a motor vehicle in this
state. A copy of the order shall be forwarded to the person by
registered or certified mail, return receipt requested, and shall
contain the reasons for the revocation or suspension and describe
the applicable revocation or suspension periods provided
for in
section two of this article. No revocation or suspension shall become effective until ten days after receipt of a copy of the
order.
(d) Any law enforcement officer taking a child into custody
under the provisions of section six-a, article five of this chapter
who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or
her blood of two hundredths of one percent or more, by weight, or
that the act of the child in driving the motor vehicle was such
that it would provide grounds for arrest for an offense defined
under the provisions of section two of said article if the child
were an adult, shall report to the commissioner of the Division of
Motor Vehicles by written statement within forty-eight hours the
name and address of the child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult, and a copy of the results of any
secondary tests of blood, breath or urine. The signing of the
statement required to br signed by this subsection shall constitute
an oath or affirmation by the person signing such statement that
the statements contained therein are true and that any copy filed
is a true copy. Such statement shall contain upon its face a
warning to the officer signing that to willfully sign a statement
containing false information concerning any matter or thing,
material or not material is false swearing and is a misdemeanor.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this section, if the commissioner determines that the results of the test
indicate that at the time the test or tests were administered the
child had, in his or her blood, an alcohol concentration of two
hundredths of one percent or more, by weight, but also determines
that the act of the child in driving the motor vehicle was not such
that it would provide grounds for arrest for an offense defined
under the provisions of subsection (a), (b), (c), (d), (e), (f) or
(g), section two, article five of this chapter if the child were an
adult, the commissioner shall make and enter an order suspending
the child=s license to operate a motor vehicle ion this state. If
the commissioner determines that the act of the child in driving
the motor vehicle was such that it would provide grounds for arrest
for an offense defined under the provisions of subsection (a), (b),
(c), (d), (e), (f) or (g), section two, article five of this
chapter if the child were an adult, the commissioner shall make and
enter an order revoking the child=s license to operate a motor
vehicle in this state. A copy of such order shall be forwarded to
the child by registered or certified mail, return receipt
requested, and shall contain the reasons for the suspension or
revocation and describe the applicable suspension or revocation
periods provided for in section two of this article. No suspension
or revocation shall become effective until ten days after receipt
of a copy of such order.
§17C-5A-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, or section four-a, 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 findings of fact and conclusions of law shall be
solely the product of the hearing examiner alone.
The hearing shall be held at an office of the division located
in or near the county wherein the arrest was made in this state or
at some other suitable place in the county wherein the arrest was
made if an office of the division is not available.
(b) Any such hearing shall be held within one hundred eighty
days after the date upon which the commissioner received the timely
written request therefor unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing
on the commissioner's own motion or upon application for each
person for good cause shown. The commissioner shall adopt and implement by a procedural rule written policies governing the
postponement or continuance of any such hearing on the
commissioner's own motion or for the benefit of any law-enforcement
officer or any person requesting the hearing, and such policies
shall be enforced and applied to all parties equally. For the
purpose of conducting the hearing, the commissioner shall have the
power and authority to issue subpoenas and subpoenas duces tecum in
accordance with the provisions of section one, article five,
chapter twenty-nine-a of this code:
Provided, That the notice of
hearing to the appropriate law-enforcement officers by registered
or certified mail, return receipt requested, shall constitute a
subpoena to appear at the hearing without the necessity of payment
of fees by the Division of Motor Vehicles.
(c)
Any 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. 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 so requesting. Such
language shall appear in bold type no less than two font sizes
greater than the next-largest type in the form. The Department of
Motor Vehicles shall be 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 (1) of
this article in that officer's absence.
(d) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or 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 rule may provide that if a person accused of driving a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or accused of driving a motor vehicle while
having an alcohol concentration in the person's blood of eight
hundredths of one percent or more, by weight, or accused of driving a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, intends to challenge the results of any
secondary chemical test of blood, breath or urine
under section
seven, article five of this chapter, or any test of blood or urine
under section four-a, 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 such intention. The rule may provide
that when there is a failure to comply with the notice requirement,
the results of the secondary test, if any, shall be admissible as
though the person and the commissioner had stipulated the
admissibility of such evidence. Any such rule shall provide that
the rule shall not be invoked in the case of a person who is not
represented by counsel unless the communication from the
commissioner to the person establishing a time and place for the
hearing also informed the person of the consequences of the
person's failure to timely notify the commissioner of the person's
intention to challenge the results of the secondary chemical test
or cross-examine the individual or individuals who administered the
test or performed the chemical analysis.
(e) In the case of a hearing wherein a person is accused of
driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or accused
of driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than eight hundredths
of one percent, by weight, the commissioner shall make specific
findings as to: (1) Whether the arresting law-enforcement officer
had reasonable grounds to believe the person to have been driving
while under the influence of alcohol, controlled substances or
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 was
lawfully placed under arrest for 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.
(f) 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 so driving did an act forbidden by law or failed to
perform a duty imposed by law, which act or failure proximately
caused the death of a person and was committed in reckless
disregard of the safety of others, and if the commissioner further
finds that the influence of alcohol, controlled substances or 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.
(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, the commissioner also finds by a
preponderance of the evidence that the person when so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused the death of a person, the
commissioner shall revoke the person's license for a period of five
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 so driving did
an act forbidden by law or failed to perform a duty imposed by law,
which act or failure proximately caused bodily injury to a person
other than himself or herself, the commissioner shall revoke the
person's license for a period of two years:
Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years:
Provided,
however, That if the commissioner has previously suspended or
revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(i) If the commissioner finds by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or 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, being an habitual user of
narcotic drugs or amphetamine or any derivative thereof, did drive
a motor vehicle, or finds that the person knowingly permitted the
person's vehicle to be driven by another person who was under the
influence of alcohol, controlled substances or 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, article five-A,
chapter seventeen-C of this code: Provided, That a person whose
license is revoked for driving while under the influence of drugs
is not eligible to participate in the motor vehicle test and lock
program: Provided further 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, however And 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.
(j) If the commissioner 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.
(j) (k) If, in addition to a finding that the person did drive
a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the commissioner also finds by a preponderance
of the evidence that the person when so driving did an act
forbidden by law or failed to perform a duty imposed by law, which act or failure proximately caused the death of a person, and if the
commissioner further finds that the alcohol concentration in the
blood was a contributing cause to the death, the commissioner shall
revoke the person's license for a period of five 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.
(k) (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 so driving did an act
forbidden by law or failed to perform a duty imposed by law, which
act or failure proximately caused bodily injury to a person other
than himself or herself, and if the commissioner further finds that
the alcohol concentration in the blood was a contributing cause to
the bodily injury, the commissioner shall revoke the person's
license for a period of two years:
Provided, That if the
commissioner has previously suspended or revoked the person's
license under the provisions of this section or section one of this
article within the ten years immediately preceding the date of
arrest, the period of revocation shall be ten years
: Provided,
however, That if the commissioner has previously suspended or revoked the person's license more than once under the provisions of
this section or section one of this article within the ten years
immediately preceding the date of arrest, the period of revocation
shall be for the life of the person.
(l) (m) 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.
(m) (n) 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 so driving did
have on or within the motor vehicle another person who has not
reached his or her sixteenth birthday, the commissioner shall
revoke the person's license for a period of one year:
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) (o) For purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest.
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two, article five
of this chapter, for conduct which occurred within the ten years
immediately preceding the date of arrest.
(3) Any revocation under the provisions of section seven,
article five of this chapter, for conduct which occurred within the
ten years immediately preceding the date of arrest.
(o) (p) In the case of a hearing wherein a person is accused
of refusing to submit to a designated secondary test, the commissioner shall make specific findings as to: (1) Whether the
arresting law-enforcement officer had reasonable grounds to believe
the person had been driving a motor vehicle in this state while
under the influence of alcohol, controlled substances or drugs; (2)
whether the person was lawfully placed under arrest for an offense
relating to driving a motor vehicle in this state while under the
influence of alcohol, controlled substances or drugs; (3) whether
the person refused to submit to the secondary test finally
designated in the manner provided in section four, article five of
this chapter; and (4) whether the person had been given a written
statement advising the person that the person's license to operate
a motor vehicle in this state would be revoked for at least
one
year 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.
(p)(q) In the case of a hearing wherein a person is accused of
refusing to submit to a chemical test of his or her blood or urine
under section four-a, article five of this chapter, the
commissioner shall make specific findings as to: (1) Whether the
law enforcement officer had probable cause to believe that the
person was a driver involved in a motor vehicle crash that resulted
in the death of another person or bodily injury that the officer
had probable cause to believe would result in the death of another
person;(2) the officer 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;(3) such the person refused to submit to a chemical test of his or her blood or
urine, at the direction of the law-enforcement officer, designed to
detect and measure the existence of alcohol, controlled substances
or any other drugs, or any combination thereof; and (4) the person
was given a written statement advising him or her that his or her
license to operate a motor vehicle in this state would be revoked
for a period of at least forty-five days and up to life if he or
she refused to submit to that test.
(p) (r) If the commissioner finds by a preponderance of the
evidence that: (1) The arresting law-enforcement officer had
reasonable grounds to believe the person had been driving a motor
vehicle in this state while under the influence of alcohol,
controlled substances or 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; and (4) the person had
been given a written statement advising the person that the
person's license to operate a motor vehicle in this state would be
revoked for a period of at least
one year 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.
(q) (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 such hearing, the
revocation of the person's license to operate a motor vehicle in
this state shall be stayed.
If the commissioner shall after hearing make and enter an
order affirming the commissioner's earlier order of revocation, the
person shall be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. The commissioner may not stay
enforcement of the order. The court may grant a stay or supersede
as of the order only upon motion and hearing, and a finding by the
court upon the evidence presented, that there is a substantial
probability that the appellant shall prevail upon the merits, and
the appellant will suffer irreparable harm if the order is not
stayed:
Provided, That in no event shall the stay or supersede as
of the order exceed one hundred fifty days. Notwithstanding the
provisions of section four, article five of said chapter, the
commissioner may not be compelled to transmit a certified copy of
the
file or the transcript of the hearing to the circuit court in
less than sixty days.
(r) (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.
(s) (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 such funds to the commission on drunk driving
prevention.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The
Division of Motor Vehicles, in cooperation with the
Department of Health and Human Resources,
the Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code, establishing a comprehensive safety and
treatment program for persons whose licenses have been revoked
under the provisions of this article, or section seven, article
five of this chapter, or subsection (6), section five, article
three, chapter seventeen-b of this code, and shall likewise
establish the minimum qualifications for mental health facilities
or other public agencies or private entities conducting the safety
and treatment program:
Provided, That the
commissioner 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.
The program shall include, but not be limited to, treatment of
alcoholism, alcohol and drug abuse, psychological counseling,
educational courses on the dangers of alcohol and drugs as they
relate to driving, defensive driving, or other safety driving
instruction and other programs designed to properly educate, train
and rehabilitate the offender.
(b) (1) The
Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources,
the Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational and treatment program for each person whose license has
been revoked under the provisions of this article or section seven,
article five of this chapter, or subsection (6), section five,
article three, chapter seventeen-b of this code, which shall
contain the following: (A) A listing and evaluation of the
offender's prior traffic record; (B) characteristics and history of
alcohol or drug use, if any; (C) his or her amenability to
rehabilitation through the alcohol safety program; and (D) a
recommendation as to treatment or rehabilitation, and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment. The cost of the program shall be paid
out of fees established by
the Commissioner of Motor Vehicles in cooperation with the Department of Health and Human Resources,
Division of Alcohol and Drug Abuse. The program provider shall
collect the established fee from each participant upon enrollment.
The program provider shall also at the time of enrollment remit to
the commissioner a portion of the collected fee established by the
commissioner in cooperation with the Department of Health and Human
Resources:
which shall be deposited into an account designated the
Driver's Rehabilitation Fund: 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
Provided, That on and after the first day of July, two thousand
eight, any unexpended balance from fees collected under the
provisions of this section prior to the first day of July, two
thousand eight remaining in 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 under the
provisions of this section shall be deposited in an account
designated by the Secretary of the Department of Health and Human
Resources to pay the costs of administering the safety and
treatment program.
(2) The commissioner, after giving due consideration to the
program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article, or
section seven, article five of this chapter, or subsection (6),
section five, article three, chapter seventeen-b of this code,
which shall include successful completion of the educational,
treatment or rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a revocation
hearing have been paid;
(B) When the period of revocation is for a period of
years 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 such time period has elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a revocation
hearing have been paid.
Notwithstanding any provision in this
code, a person revoked for refusing to take a chemical test as
required by section seven, article five of this chapter or section
four-a, article five of this chapter shall not be 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 such person has
successfully completed the program.
(c) (1) The
Division of Motor Vehicles, in cooperation with
the Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall provide for the preparation of an
educational program for each person whose license has been
suspended for sixty days pursuant to the provisions of subsection
(l) (m), 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.
(d) A required component of the rehabilitation program
provided
for 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
commissioner Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall propose
legislative rules for
promulgation in accordance with the provisions of chapter twenty-
nine-a of this code to 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 such victims are
not available, so as to assist persons whose licenses have been
suspended or revoked for alcohol- and drug-related offenses to gain
a full understanding of the severity of their offenses in terms of
the impact of such offenses on victims and offenders. The
legislative rules proposed for promulgation by the commissioner
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.
Any rules promulgated pursuant to this subsection shall
contain provisions which The Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse shall ensure that
any meetings between victims and offenders shall be non-
confrontational and ensure the physical safety of the persons
involved.
§17C-5A-3a. Establishment of and participation in the Motor
Vehicle Alcohol Test and Lock Program.
(a) The Division of Motor Vehicles shall control and regulate
a Motor Vehicle Alcohol Test and Lock Program for persons whose
licenses have been revoked pursuant to this article or the
provisions of article five of this chapter or have been convicted
under section two, article five of this chapter. The program shall
include the establishment of a users fee for persons participating
in the program which shall be paid in advance and deposited into
the Driver's Rehabilitation Fund:
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.
Except where specified otherwise, the use of the term "program" in
this section refers to the Motor Vehicle Alcohol Test and Lock
Program. The Commissioner of the Division of Motor Vehicles shall
propose legislative rules for promulgation in accordance with the
provisions of chapter twenty-nine-a of this code for the purpose of
implementing the provisions of this section. The rules shall also
prescribe those requirements which, in addition to the requirements
specified by this section for eligibility to participate in the
program, the commissioner determines must be met to obtain the
commissioner's approval to operate a motor vehicle equipped with a
motor vehicle alcohol test and lock system. For purposes of this
section, a "motor vehicle alcohol test and lock system" means a
mechanical or computerized system which, in the opinion of the
commissioner, prevents the operation of a motor vehicle when,
through the system's assessment of the blood alcohol content of the
person operating or attempting to operate the vehicle, the person
is determined to be under the influence of alcohol.
(b)(1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this
chapter is eligible to participate in the program when the person's
minimum revocation period as specified by subsection (c) of this
section has expired and the person is enrolled in or has
successfully completed the safety and treatment program or presents proof to the commissioner within sixty days of receiving approval
to participate by the commissioner that he or she is enrolled in a
safety and treatment program
. ; Provided That anyone whose license
is revoked for the first time pursuant to subsection (j), 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
(l) (m), 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 will enroll in and
complete the educational program provided
for in subsection (c),
section three of this article at the earliest time that placement
in the educational program is available, unless good cause is
demonstrated to the commissioner as to why placement should be
postponed;
(B) The person will pay all costs of the educational program,
any administrative costs and all costs assessed for any suspension
hearing.
(3) Notwithstanding the provisions of this section to the
contrary, no person eligible to participate in the program under
this subsection may operate a motor vehicle unless approved to do
so by the commissioner.
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device as follows:
(1) For a person whose license has been revoked for a first
offense for six months pursuant to the provisions of section one-a
of this article for conviction of an offense defined in subsection
(d) or
(f) (g), section two, article five of this chapter or
pursuant to subsection (i), section two of this article, the
minimum period of revocation for participation in the test and lock
program is
thirty fifteen days and the minimum period for the use
of the ignition interlock device is
five months 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,
or
section four-a, article five of this chapter, refusal to submit to
a designated secondary chemical test, the minimum period of
revocation for participation in the test and lock program is
thirty
forty-five days and the minimum period for the use of the ignition
interlock device is
nine months 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;
(3) (4) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (a),
section two, article five of this chapter or pursuant to subsection
(f), section two of this article, the minimum period of revocation
before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device is two years;
(4) (5) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this article for conviction of an offense defined in subsection (b),
section two, article five of this chapter or pursuant to subsection
(g), section two of this article, the minimum period of revocation
is six months and the minimum period for the use of the ignition
interlock device is two years;
(5) (6) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection (c),
section two, article five of this chapter or pursuant to subsection
(h), section two of this article, the minimum period of revocation
for participation in the program is two months and the minimum
period for the use of the ignition interlock device is one year;
(6) (7) For a person whose license has been revoked for a
first offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in subsection
(i) (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 license was revoked under any
provision cited in this subsection within the past ten years. The minimum revocation period for a person required to participate in
the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years,
except that the minimum revocation period for a person required to
participate because of a violation of subsection
(l) (m), section
two of this article or subsection
(h) (i), section two, article
five of this chapter is two months and the minimum period of
participation is one year.
The division will add 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 will 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 will
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 will add one year to the minimum period for the use of the
ignition interlock device for each additional previous conviction
or revocation within the past ten years. Any person required to
participate under this subsection must have an ignition interlock
device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a person
revoked for driving under the influence of drugs is not eligible to
participate in the motor vehicle test and lock program.
(e) (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.
(f) (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.
(g) (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.
(h) (i) A person whose license has been suspended pursuant to
the provisions of subsection
(l) (m), 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.
(i) (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 such
person's participation in the motor vehicle alcohol test and lock
program is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in
the county or regional jail for a period not
less than one month nor more than six months and fined not less
than one hundred dollars nor more than five hundred dollars. Any
person who attempts to bypass the alcohol test and lock system is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in
the county or regional jail not more than six months
and fined not less than one hundred dollars nor more than one
thousand dollars:
Provided, That notwithstanding any provision of this code to the contrary, a person enrolled and participating in
the test and lock program may operate a motor vehicle solely at his
or her job site, if such is a condition of his or her employment.
For the purpose of this section, job site does not include any
street or highway open to the use of the public for purposes of
vehicular traffic.
__________
NOTE: The purpose of this bill is to make the interlock
program mandatory for first time offenders with a blood alcohol
content of .15 or above while also increasing incentives for
participation in the program for other first time offenders;
reducing the administrative penalties for driving with a suspended
license; permitting administrative hearing decisions to be based on
the arresting officer's affidavit unless the driver requests the
officer's attendance at the hearing; and requiring a mandatory
blood alcohol content test for all drivers involved in a motor
vehicle crash resulting in death or serious bodily injury.
Changes to criminal penalties include: removing the mandatory
24 hour sentence for first offense DUI; creating an new offense for
individuals with a blood alcohol content of .15 or greater; and
reducing penalties for second offense driving with suspended
license.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-5-4a is new; therefore, strike-throughs and underscoring
have been omitted.