H. B. 4341
(By Delegates Martin, Klempa and D. Poling)
(Requested by Division of Highways)
[Introduced February 4, 2010
; referred to the
Committee on Roads and Transportation then Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §17-17B-1,
§17-17B-2,
§17-17B-3,
§17-17B-4,
§17-17B-5,
§17-17B-6,
§17-17B-7,
§17-17B-8 and §17-17B-9, all relating to electronic collection
of tolls on certain roads; authorizing the collection
electronic collection of tolls; establishing penalties for
nonpayment and damage to facilities; keeping certain
information collected confidential and not subject to the
Freedom of Information Act; granting rulemaking authority; and
defining terms.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §17-17B-1,
§17-17B-2,
§17-17B-3,
§17-17B-4,
§17-17B-5,
§17-17B-6,
§17-17B-7,
§17-17B-8 and §17-17B-9, all to read as follows:
ARTICLE 17B. ELECTRONIC TOLL COLLECTION.
§17-17B-1. Definitions.
The following words and phrases have the following meanings
when used in this article:
(1) "Authority" or "Parkways Authority" means the West
Virginia Parkways, Economic Development and Tourism Authority
established by article sixteen-a of this chapter.
(2) "
Division" means the Division of Highways
, except where
another division is clearly identified.
(3) "Owner" means any person, corporation, firm, partnership,
agency, association, organization or lessor who:
(A) Is the beneficial or equitable owner of the vehicle;
(B) Holds title to the vehicle;
(C) Is the registrant or coregistrant of the vehicle
registered with the Division of Motor Vehicles or a comparable
agency of another jurisdiction or uses the vehicle in its vehicle
renting or leasing business; or
(D) Is a person entitled to the use and possession of a
vehicle subject to a security interest held by another person.
(4) "Electronic toll collection" means a system of collecting
tolls or charges that has or includes the capability of charging
an account holder, owner or operator of a vehicle for the prescribed toll by electronic transmission of information between
a device on a vehicle and a device in a toll lane at a toll
collection facility or by means of a video collection system.
(5) "Video collection system" means a vehicle sensor, placed
in a location to work in conjunction with a toll collection
facility, that automatically produces a videotape or photograph,
microphotograph or other recorded image of the rear portion of each
vehicle at the time the vehicle is used or operated on the toll
facility in order to collect tolls or detect violations of this
article. This phrase includes, without limitation, any other
technology which identifies a vehicle by photographic, electronic
or other method.
§17-17B-2. Electronic toll collection authorized.
Notwithstanding article sixteen-a and section five-b, article
seventeen-a of this chapter and section seven-a, article six,
chapter seventeen-c of this code, the collection of tolls and the
enforcement toll violations may be enforced by electronic toll
collection.
§17-17B-3. Liability of owner.
(a) All owners and operators of motor vehicles must pay the
posted toll when on any road, highway or bridge authorized by
article sixteen-a and section five-b, article seventeen-a of this
article. These tolls may be collected by electronic toll collection. If an owner or operator of a vehicle fails to pay the
prescribed toll by electronic means the owner of the vehicle is in
violation of this article.
(b) If a violation occurs, the registration plate number of
the vehicle as recorded by a video collection system establishes an
inference that the owner of the vehicle was operating the vehicle
at that time. The inference may be overcome if the owner:
(1) States that he or she was not operating the vehicle at the
time of the violation;
(2) Identifies who was operating the vehicle; and
(3) Supplies the name and address, if known, of the operator
of the vehicle.
(c) If an action or proceeding is commenced in a county other
than that of the residence of the owner, a sworn statement that
contains the information set forth in subsection (b) of this
section is sufficient to overcome the inference.
(d) If the inference is overcome, the identified operator of
the vehicle may be found to have violated this article.
§17-17B-4. Imposition of liability.
If, as evidenced by a video collection system, a violation of
this article occurs the following shall apply:
(1) The division or the Parkways Authority, as the applicable,
will prepare and mail a notice of violation as follows:
(A) The notice of violation must be sent by first class mail
to each person listed as owner;
(B) The notice must be mailed at the address shown on the
vehicle registration or at the address of the operator, as
applicable.
(C) Notice shall be mailed no later than sixty days after:
(i) The violation;
(ii) The date the inference is overcome by the owner pursuant
to subsection (b), section three of this article; or
(iii) The date that a lessor provides sufficient information
to identify who is the actual owner.
(D) Personal service is not required.
(E) The notice must contain the following:
(i) Information advising the person of the violation, when and
where it occurred and that the violation may be contested.
(ii) A warning advising the person charged:
(I) That failure to contest in the manner and time provided is
an admission of guilt;
(II) That a default judgment may be entered on the notice;
(III) That a violation of this article may subject the owner
or operator to criminal prosecution and fines; and
(IV) That failure to pay civil or criminal penalties imposed
pursuant to this article may result in denial of an application for a new or renewal of vehicle registration in this state.
(F) A manual or automatic record of mailing prepared in the
ordinary course of business shall be prima facie evidence of the
mailing of notice.
(2) If an owner of a vehicle receives a notice of violation of
this article for any time period during which the vehicle was
reported to a police department as having been stolen, that owner
may not be liable if he or she provides a certified copy of the
police report on the stolen vehicle to the division or the Parkways
Authority within thirty days after receiving the notice of
violation.
(3) If an owner of a vehicle receives a notice of violation of
this article for any time period during which the vehicle was being
leased or rented, that owner may not be liable if he or she
provides a copy of the rental, lease or other contract document
that contains the name and address of the lessee to the division or
the Parkways Authority within thirty days after receiving the
notice of violation.
(4) A certified report or a facsimile report of an authorized
agent or employee of the division reporting a violation of section
three of this article based upon the recorded information obtained
from a video collection system shall be prima facie evidence of the
facts contained in the report and is admissible as an official record kept in the ordinary course of business.
(5) Notwithstanding any provision in the code to the contrary,
videotapes, photographs, microphotographs, other recorded images,
written records, reports or facsimiles prepared pursuant to this
article are for the exclusive use of the division or the Parkways
Authority, as applicable, its authorized agents, its employees and
law enforcement officials for the purpose of discharging duties
under this article. The information shall not be deemed a public
record under chapter twenty-nine-b of this code. The information
is not discoverable by court order and it may not be offered in
evidence in any action or proceeding that is not directly related
to a violation of this article or indemnification permitted by this
article. However, these restrictions:
(A) Do not preclude a court of competent jurisdiction from
issuing an order directing that the information be provided to law
enforcement officials if the information is reasonably described
and is requested in connection with a criminal law enforcement
action;
(B) Do not preclude the exchange of the information between
any entities with jurisdiction over or that operate an electronic
toll collection system in this state or any other jurisdiction; and
(C) Do not prohibit the use of information exclusively for the
purpose of billing electronic toll collection account holders, deducting toll charges from the account of an account holder,
enforcing toll collection provisions of this code or enforcing the
provisions of an account holder agreement.
(6) Civil liability under this article is to be based upon a
preponderance of evidence.
(7) Civil liability under this article is not a conviction and
may not be made part of the owner's motor vehicle operating record.
It may not be considered in the provision of motor vehicle
insurance coverage.
(8) A person found to have violated this article is liable
for:
(A) The amount of the toll evaded or attempted to be evaded.
If the amount can be determined or, if it cannot be determined, the
maximum toll from the farthest point of entry on the toll facility
to the actual point of exit; and
(B) A reasonable administrative fee not to exceed $35 per
notification.
§17-17B-5. Placement of electronic toll collection device.
An electronic toll collection device that is properly affixed
to the front windshield of a vehicle in accordance with division
rules is not a violation of section thirty-six, article fifteen,
chapter seventeen-c of this code.
§17-17B-6. Privacy of electronic toll collection account holder information.
(a) Except as provided in subsection (b) of this section, and
notwithstanding any provision in the code to the contrary,
videotapes, photographs, microphotographs, other recorded images,
written records, reports or facsimiles prepared pursuant to this
article are for the exclusive use of the division or the Parkways
Authority, as applicable, its authorized agents, its employees and
law enforcement officials for the purpose of discharging duties
under this article. This information includes names, addresses,
account numbers, account balances, personal financial information,
vehicle movement records and other information compiled from
transactions with the account holders. The information shall not
be deemed a public record under chapter twenty-nine-b of this code.
(b) The information is not discoverable by court order and it
may not be offered in evidence in any action or proceeding that is
not directly related to a violation
of this article
. However, these
restrictions:
(1) Do not preclude a court of competent jurisdiction from
issuing an order directing that the information be provided to law
enforcement officials if the information is reasonably described
and is requested in connection with a criminal law-enforcement
action;
(2) Do not preclude the exchange of the information between any entities with jurisdiction over or which operate an electronic
toll collection system in this state or any other jurisdiction; and
(3) Do not prohibit the use of information exclusively for the
purpose of billing electronic toll collection account holders,
deducting toll charges from the account of an account holder,
enforcing toll collection provisions of this code or enforcing the
provisions of an account holder agreement.
§17-17B-7. Evading tolls; damaging, interfering with or
obstructing video toll collection or
infrastructure; violations and penalties.
(a) Any person who knowingly or intentionally evades or seeks
to evade the payment of tolls, rents, fees or charges established
by the division for the use of any toll under the jurisdiction of
the Parkways Authority is guilty of a misdemeanor and, upon
conviction shall be fined not more than $50.
(b) Any person who deliberately damages, defaces or obstructs
a video collection system infrastructure or power supply with the
intent to interfere with or alter or prevent the functioning of the
system or electronic toll collection is guilty of a misdemeanor
and, in addition to any other penalties provided by the code, and
upon conviction shall be fined not more than $500 and, if
applicable, is additionally liable to the Parkways Authority for
all costs to repair the damaged, defaced or obstructed property.
§17-17B-8. Nonrenewal of vehicle registration; effect of civil or
criminal violation.
The Commissioner of Motor Vehicles may refuse to register, or
renew the registration of, any vehicle whose owner has been found
to have violated this article until such time as all fees,
penalties and costs imposed pursuant by this article have been paid
or satisfied.
§17-17B-9. Rulemaking Authority.
The Commissioner of the Department of Motor Vehicles, the
Commissioner of Highways and the Parkways Authority shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of the code to implement this
article.
NOTE: The purpose of this article is to authorize the
collection electronic collection of tolls. The bill establishes
penalties for nonpayment and damage to facilities. The bill keeps
certain information collected confidential and not subject to the
freedom of information act. The bill also grants rulemaking
authority and defines terms.
This article is new; therefore, it has been completely
underscored.