Introduced Version
Senate Bill 376 History
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Senate Bill No. 376
(By Senator Kirkendoll)
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[Introduced February 27, 2013; referred to the Committee on
Government Organization; and then to the Committee on the
Judiciary .]
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A BILL to amend and reenact §17C-5A-2 of the Code of West Virginia,
1931, as amended, relating to hearings before the Office of
Administrative Hearings; specifying methods of service;
providing permissible hearing locations; deleting the
requirement that the Office of Administrative Hearings shall
send hearing notices to certain witnesses; deleting an
instance of a duplication of an element for driving under the
influence; clarifying that the Office of Administrative
Hearings shall rescind or modify the order of the Commissioner
of the Division of Motor Vehicles in certain cases; noting
that the Office of Administrative Hearings is not a party to
an appeal; stating that a party filing an appeal is
financially responsible for the transcription of the hearing
and transmission of file copy; and stating that the court shall provide a copy of its final order to the Office of
Administrative Hearings.
Be it enacted by the Legislature of West Virginia:
That §17C-5A-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE
INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-2. Hearing; revocation; review.
(a) Written objections to an order of revocation or suspension
under the provisions of section one of this article or section
seven, article five of this chapter shall be filed with the Office
of Administrative Hearings. Upon the receipt of an objection, the
Office of Administrative Hearings shall notify the Commissioner of
the Division of Motor Vehicles, who shall stay the imposition of
the period of revocation or suspension and afford the person an
opportunity to be heard by the Office of Administrative Hearings.
The written objection must be filed with Office of Administrative
Hearings in person, by registered or certified mail, return receipt
requested, or by facsimile transmission or electronic mail within
thirty calendar days after receipt of a copy of the order of
revocation or suspension or no hearing will be granted: Provided, That a successful transmittal sheet shall be necessary for proof of
written objection in the case of filing by fax. The hearing shall
be before a hearing examiner employed by the Office of
Administrative Hearings who shall rule on evidentiary issues. Upon
consideration of the designated record, the hearing examiner shall,
based on the determination of the facts of the case and applicable
law, render a decision affirming, reversing or modifying the action
protested. The decision shall contain findings of fact and
conclusions of law and shall be provided to all parties by
registered or certified mail, return receipt requested, or by
facsimile or by electronic mail if available.
(b) The hearing shall be held at an office of the Division of
Motor Vehicles suitable for hearing purposes located in or near the
county in which the arrest was made in this state or at some other
suitable place in the county in which the arrest was made if an
office of the division is not available. At the discretion of the
Office of Administrative Hearings, the hearing may also be held at
an office of the Office of Administrative Hearings located in or
near the county in which the arrest was made in this state. The
Office of Administrative Hearings shall send a notice of hearing to
the person whose driving privileges are at issue and the person's
legal counsel if the person is represented by legal counsel, the
investigating or arresting law-enforcement officers, the Division
of Motor Vehicles, and the Attorney General's Office, if the Attorney General has filed a notice of appearance of counsel on
behalf of the Division of Motor Vehicles by regular mail, by
facsimile or by electronic mail if available.
(c) (1) Any hearing shall be held within one hundred eighty
days after the date upon which the Office of Administrative
Hearings received the timely written objection unless there is a
postponement or continuance.
(2) The Office of Administrative Hearings may postpone or
continue any hearing on its own motion or upon application by the
party whose license is at issue in that hearing or by the
commissioner for good cause shown.
(3) The Office of Administrative Hearings may issue subpoenas
commanding the appearance of witnesses and subpoenas duces tecum
commanding the submission of documents, items or other things.
Subpoenas duces tecum shall be returnable on the date of the next
scheduled hearing unless otherwise specified. The Office of
Administrative hearings shall issue subpoenas and subpoenas duces
tecum at the request of a party or the party's legal
representative. The party requesting the subpoena shall be
responsible for service of the subpoena upon the appropriate
individual. Every subpoena or subpoena duces tecum shall be served
at least five days before the return date thereof, either by
personal service made by a person over eighteen years of age or by
registered or certified mail, return receipt requested, and received by the party responsible for serving the subpoena or
subpoena duces tecum: Provided, That the Division of Motor
Vehicles may serve subpoenas to law-enforcement officers through
electronic mail to the department of his or her employer. If a
person does not obey the subpoena or fails to appear, the party who
issued the subpoena to the person may petition the circuit court
wherein the action lies for enforcement of the subpoena.
(d) Law-enforcement officers shall be compensated for the time
expended in their travel and appearance before the Office of
Administrative Hearings 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.
(e) The principal question at the hearing shall be whether the
person did drive a motor vehicle while under the influence of
alcohol, controlled substances or drugs, or did drive a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or did
refuse to submit to the designated secondary chemical test, or did
drive a motor vehicle while under the age of twenty-one years with
an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than eight hundredths of
one percent, by weight.
(f) In the case of a hearing in which a person is accused of driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or accused of driving a motor
vehicle while having an alcohol concentration in the person's blood
of eight hundredths of one percent or more, by weight, or accused
of driving a motor vehicle while under the age of twenty-one years
with an alcohol concentration in his or her blood of two hundredths
of one percent or more, by weight, but less than eight hundredths
of one percent, by weight, the Office of Administrative Hearings
shall make specific findings as to: (1) Whether the investigating
law-enforcement officer had reasonable grounds to believe the
person to have been driving while under the influence of alcohol,
controlled substances or drugs, or while having an alcohol
concentration in the person's blood of eight hundredths of one
percent or more, by weight, or to have been driving a motor vehicle
while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent
or more, by weight, but less than eight hundredths of one percent,
by weight; (2) whether the person 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: Provided, That
this element shall be waived in cases where no arrest occurred due
to driver incapacitation; (3) whether the person committed an
offense involving driving under the influence of alcohol, controlled substances or drugs or was lawfully taken into custody
for the purpose of administering a secondary test; and (4) whether
the tests, if any, were administered in accordance with the
provisions of this article and article five of this chapter.
(g) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, or did drive a motor vehicle while
under the age of twenty-one years with an alcohol concentration in
his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight,
the Office of Administrative Hearings also finds by a preponderance
of the evidence that the person when driving did an act forbidden
by law or failed to perform a duty imposed by law, which act or
failure proximately caused the death of a person and was committed
in reckless disregard of the safety of others and if the Office of
Administrative Hearings 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 person's license has previously
been suspended or revoked 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 Office of Administrative
Hearings also finds by a preponderance of the evidence that the
person when driving did an act forbidden by law or failed to
perform a duty imposed by law, which act or failure proximately
caused the death of a person, the commissioner shall revoke the
person's license for a period of five years: Provided, That if the
person's license has previously been suspended or revoked under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(i) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the Office of Administrative
Hearings also finds by a preponderance of the evidence that the
person when driving did an act forbidden by law or failed to
perform a duty imposed by law, which act or failure proximately caused bodily injury to a person other than himself or herself, the
commissioner shall revoke the person's license for a period of two
years: Provided, That if the license has previously been suspended
or revoked 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 person's license has previously been suspended
or revoked 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 Office of Administrative Hearings finds by a
preponderance of the evidence that the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or did drive a motor vehicle while having an alcohol
concentration in the person's blood of eight hundredths of one
percent or more, by weight, but less than fifteen hundredths of one
percent or more, by weight, or finds that the person knowingly
permitted the persons vehicle to be driven by another person who
was under the influence of alcohol, controlled substances or drugs,
or knowingly permitted the person's vehicle to be driven by another
person who had an alcohol concentration in his or her blood of
eight hundredths of one percent or more, by weight the commissioner
shall revoke the person's license for a period of six months or a period of fifteen days with an additional one hundred and twenty
days of participation in the Motor Vehicle Alcohol Test and Lock
Program in accordance with the provisions of section three-a of
this article: Provided, That any period of participation in the
Motor Vehicle Alcohol Test and Lock Program that has been imposed
by a court pursuant to section two-b, article five of this chapter
shall be credited against any period of participation imposed by
the commissioner: Provided, however, That a person whose license
is revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Alcohol Test and Lock
Program: Provided further, That if the person's license has
previously been suspended or revoked 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: And provided further, That if the person's
license has previously been suspended or revoked more than once
under the provisions of this section or section one of this article
within the ten years immediately preceding the date of arrest, the
period of revocation shall be for the life of the person.
(k) (1) If in addition to finding by a preponderance of the
evidence that the person did drive a motor vehicle while under the
influence of alcohol, controlled substance or drugs, the Office of
Administrative Hearings also finds by a preponderance of the
evidence that the person did drive a motor vehicle while having an alcohol concentration in the person's blood of fifteen hundredths
of one percent or more, by weight, the commissioner shall revoke
the person's license for a period of forty-five days with an
additional two hundred and seventy days of participation in the
Motor Vehicle Alcohol Test and Lock Program in accordance with the
provisions of section three-a, article five-a, chapter seventeen-c
of this code: Provided, That if the person's license has
previously been suspended or revoked 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 person's
license has previously been suspended or revoked the person's
license more than once under the provisions of this section or
section one of this article within the ten years immediately
preceding the date of arrest, the period of revocation shall be for
the life of the person.
(2) If a person whose license is revoked pursuant to
subdivision (1) of this subsection proves by clear and convincing
evidence that they do not own a motor vehicle upon which the
alcohol test and lock device may be installed or is otherwise
incapable of participating in the Motor Vehicle Alcohol Test and
Lock Program, the period of revocation shall be one hundred eighty
days: Provided, That if the person's license has previously been
suspended or revoked 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 person's license has
previously been suspended or revoked more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(l) If, in addition to a finding that the person did drive a
motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the Office of Administrative Hearings also
finds by a preponderance of the evidence that the person when
driving did an act forbidden by law or failed to perform a duty
imposed by law, which act or failure proximately caused the death
of a person, and if the Office of Administrative Hearings 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
person's license has previously been suspended or revoked under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period
of revocation shall be for the life of the person.
(m) If, in addition to a finding that the person did drive a motor vehicle while under the age of twenty-one years with an
alcohol concentration in his or her blood of two hundredths of one
percent or more, by weight, but less than eight hundredths of one
percent, by weight, the Office of Administrative Hearings also
finds by a preponderance of the evidence that the person when
driving did an act forbidden by law or failed to perform a duty
imposed by law, which act or failure proximately caused bodily
injury to a person other than himself or herself, and if the Office
of Administrative Hearings 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 person's license has
previously been suspended or revoked 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 person's
license has previously been suspended or revoked more than once
under the provisions of this section or section one of this article
within the ten years immediately preceding the date of arrest, the
period of revocation shall be for the life of the person.
(n) If the Office of Administrative Hearings 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 person's license has
previously been suspended or revoked under the provisions of this
section or section one of this article, the period of revocation
shall be for one year, or until the person's twenty-first birthday,
whichever period is longer.
(o) If, in addition to a finding that the person did drive a
motor vehicle while under the influence of alcohol, controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in the person's blood of eight hundredths of
one percent or more, by weight, the Office of Administrative
Hearings also finds by a preponderance of the evidence that the
person when driving did have on or within the Motor vehicle another
person who has not reached his or her sixteenth birthday, the
commissioner shall revoke the person's license for a period of one
year: Provided, That if the person's license has previously been
suspended or revoked 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 person's license has
previously been suspended or revoked more than once under the
provisions of this section or section one of this article within
the ten years immediately preceding the date of arrest, the period of revocation shall be for the life of the person.
(p) For purposes of this section, where reference is made to
previous suspensions or revocations under this section, the
following types of criminal convictions or administrative
suspensions or revocations shall also be regarded as suspensions or
revocations under this section or section one of this article:
(1) Any administrative revocation under the provisions of the
prior enactment of this section for conduct which occurred within
the ten years immediately preceding the date of arrest;
(2) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the
United States or of any other state of an offense which has the
same elements as an offense described in section two, article five
of this chapter for conduct which occurred within the ten years
immediately preceding the date of arrest; or
(3) Any revocation under the provisions of section seven,
article five of this chapter for conduct which occurred within the
ten years immediately preceding the date of arrest.
(q) In the case of a hearing in which a person is accused of
refusing to submit to a designated secondary test, the Office of
Administrative Hearings 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 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:
Provided, That this element shall be waived in cases where no
arrest occurred due to driver incapacitation; (3) whether the
person committed an offense relating to driving a motor vehicle in
this state while under the influence of alcohol, controlled
substances or drugs; (4) 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 (5) whether the
person had been given a written statement advising the person that
the person's license to operate a motor vehicle in this state would
be revoked for at least forty-five days and up to life if the
person refused to submit to the test finally designated in the
manner provided in said section.
(r) If the Office of Administrative Hearings finds by a
preponderance of the evidence that: (1) The investigating officer
had reasonable grounds to believe the person had been driving a
motor vehicle in this state while under the influence of alcohol,
controlled substances or drugs; (2) 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: Provided, That this element shall be waived in
cases where no arrest occurred due to driver incapacitation; (3)
the person committed an offense relating to driving a motor vehicle
in this state while under the influence of alcohol, controlled
substances or drugs; (4) the person refused to submit to the
secondary test finally designated in the manner provided in section
four, article five of this chapter; and (5) the person had been
given a written statement advising the person that the person's
license to operate a motor vehicle in this state would be revoked
for at least forty-five days and up to life if the person refused
to submit to the test finally designated, 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. The revocation period prescribed in this
subsection shall run concurrently with any other revocation period
ordered under this section or section one of this article arising
out of the same occurrence.
(s) If the Office of Administrative Hearings finds to the
contrary with respect to the above issues, it shall rescind or
modify the commissioner's order and, in the case of modification,
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 Office of
Administrative Hearings' final order containing its findings of
fact and conclusions of law made and entered following the hearing
shall be served upon the person whose license is at issue or upon
the person's legal counsel if the person is represented by legal
counsel by registered or certified mail, return receipt requested,
or by facsimile or by electronic mail if available. The final
order shall be served upon the commissioner by electronic mail.
During the pendency of any hearing, the revocation of the person's
license to operate a motor vehicle in this state shall be stayed.
A person whose license is at issue and the commissioner shall
be entitled to judicial review as set forth in chapter
twenty-nine-a of this code. Neither the commissioner nor the
Office of Administrative Hearings may 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. The Office of Administrative Hearings may not
be made a party to an appeal. The party filing the appeal shall pay the Office of Administrative Hearings for the production and
transmission of the certified file copy and the hearing transcript
to the court. Notwithstanding the provisions of section four,
article five of said chapter, the Office of Administrative Hearings
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. The court shall provide a copy of its final order on
the appeal to the Office of Administrative Hearings.
(t) In any revocation or suspension pursuant to this section,
if the driver whose license is revoked or suspended had not reached
the driver's eighteenth birthday at the time of the conduct for
which the license is revoked or suspended, the driver's license
shall be revoked or suspended until the driver's eighteenth
birthday or the applicable statutory period of revocation or
suspension prescribed by this section, whichever is longer.
(u) Funds for this section's hearing and appeal process may be
provided from the Drunk Driving Prevention Fund, as created by
section forty-one, article two, chapter fifteen of this code, upon
application for the funds to the Commission on Drunk Driving
Prevention.
NOTE: The purpose of this bill is to add facsimile
transmissions and electronic mail as a permissible service option;
to clarify that it is permissible for hearings to take place at an office of the Office of Administrative Hearings (OAH); to delete
the requirement that the OAH provide hearing notices to certain
witnesses; to delete an instance of a duplication of an element for
driving under the influence; to clarify that the OAH, not the
Commissioner of the Division of Motor Vehicles, shall rescind or
modify the commissioner's order in certain circumstances; to
explain that the OAH is not a party to an appeal in case an order
of the OAH is appealed; to clarify that a party filing an appeal is
financially responsible for the transcription of the hearing and
the OAH's transmission of a file copy to the circuit court; and to
require a court to provide a copy of its final order ruling on an
OAH order to the OAH.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.