ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4023
(By Mr. Speaker, Mr. Thompson, and Delegate Armstead)
[By Request of the Executive]
[Passed March 8, 2008; in effect ninety days from passage.]
AN ACT to amend and reenact §17B-2-3a of the Code of West Virginia,
1931, as amended; to amend and reenact §17B-3-6 of said code;
and to amend and reenact §18-8-11 of said code, all relating
to the denial or suspension of the driver's license of any
student between the ages of fifteen and eighteen who withdraws
from school or fails to make substantial progress towards
graduating; providing for appeal; defining certain terms; and
providing for exceptions.
Be it enacted by the Legislature of West Virginia:
That
§17B-2-3a of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17B-3-6 of said code be amended and
reenacted; and that §18-8-11 of said code be amended and reenacted,
all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION, AND RENEWAL.
§17B-2-3a. Graduated driver's license.
(a) Any person under the age of eighteen may not operate a
motor vehicle unless he or she has obtained a graduated driver's
license in accordance with the three-level graduated driver's
license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of
class or level of licensure, who operates a motor vehicle with any
measurable alcohol in his or her system is subject to the
provisions of section two, article five, chapter seventeen-c of
this code and section two, article five-a of said chapter. Any
person under the age of eighteen, regardless of class or licensure
level, is subject to the mandatory school attendance and
satisfactory academic progress provisions of section eleven,
article eight, chapter eighteen of this code.
(c)
Level one instruction permit. -- An applicant who is
fifteen years or older meeting all other requirements prescribed in
this code may be issued a level one instruction permit.
(1)
Eligibility. -- The division shall not issue a level one
instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the
provisions of section six of this article, and which is accompanied
by a writing, duly acknowledged, consenting to the issuance of the
graduated driver's license and executed by a parent or guardian
entitled to custody of the applicant;
(B) Presents a certified copy of a birth certificate issued by
a state or other governmental entity responsible for vital records
unexpired, or a valid passport issued by the United States government evidencing that the applicant meets the minimum age
requirement and is of verifiable identity;
(C) Passes the vision and written knowledge examination and
completes the driving under the influence awareness program, as
prescribed in section seven of this article;
(D) Presents a Driver's Eligibility Certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; and
(E) Pays a fee of five dollars, which shall permit the
applicant at the written knowledge test.
(2)
Terms and conditions of instruction permit. -- A level one
instruction permit issued under the provisions of this section is
valid until thirty days after the date the applicant attains the
age of eighteen and is not renewable. However, any permit holder
who allows his or her permit to expire prior to successfully
passing the road skills portion of the driver examination, and who
has not committed any offense which requires the suspension,
revocation or cancellation of the instruction permit, may reapply
for a new instruction permit under the provisions of section six of
this article. The division shall immediately revoke the permit
upon receipt of a second conviction for a moving violation of
traffic regulations and laws of the road or violation of the terms
and conditions of a level one instruction permit, which convictions
have become final unless a greater penalty is required by this
section or any other provision of this code. Any person whose
instruction permit has been revoked is disqualified from retesting for a period of ninety days. However, after the expiration of
ninety days, the person may retest if otherwise eligible. In
addition to all other provisions of this code for which a driver's
license may be restricted, suspended, revoked or canceled, the
holder of a level one instruction permit may only operate a motor
vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver,
twenty-one years of age or older, or a driver's education or
driving school instructor who is acting in an official capacity as
an instructor, who is fully alert and unimpaired, and the only
other occupant of the front seat. The vehicle may be operated with
no more than two additional passengers, unless the passengers are
family members;
(B) Between the hours of five a.m. and eleven p.m.;
(C) All occupants must use safety belts in accordance with the
provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Without any measurable blood alcohol content, in
accordance with the provisions of subsection (h), section two,
article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen
of this code.
(F) A holder of a level one instruction permit who is under
the age of eighteen years may not use a wireless communication device while operating a motor vehicle, unless the use of the
wireless communication device is for contacting a 9-1-1 system. A
law-enforcement officer may enforce the provisions of this
paragraph only as a secondary action when a law-enforcement officer
with probable cause detains a driver for a suspected violation of
another provision of this code. A person violating the provisions
of this paragraph is guilty of a misdemeanor and, upon conviction
thereof, shall for the first offense be fined twenty-five dollars;
for a second offense be fined fifty dollars; and for a third or
subsequent offense be fined seventy-five dollars.
(d)
Level two intermediate driver's license. -- An applicant
sixteen years of age or older, meeting all other requirements of
the code, may be issued a level two intermediate driver's license.
(1)
Eligibility. -- The division shall not issue a level two
intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section
six of this article;
(B) Has held the level one instruction permit conviction-free
for the one hundred eighty days immediately preceding the date of
application for a level two intermediate license;
(C) Has completed either a driver's education course approved
by the State Department of Education or thirty hours of
behind-the-wheel driving experience certified by a parent or legal
guardian or other responsible adult over the age of twenty-one as
indicated on the form prescribed by the division:
Provided, That nothing in this paragraph shall be construed to require any school
or any county board of education to provide any particular number
of driver's education courses or to provide driver's education
training to any student;
(D) Presents a Driver's Eligibility Certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by
section seven of this article; and
(F) Pays a fee of five dollars.
(2)
Terms and conditions of a level two intermediate driver's
license. -- A level two intermediate driver's license issued under
the provisions of this section shall expire thirty days after the
applicant attains the age of eighteen, or until the licensee
qualifies for a level three full Class E license, whichever comes
first. In addition to all other provisions of this code for which
a driver's license may be restricted, suspended, revoked or
canceled, the holder of a level two intermediate driver's license
may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a.m. and eleven p.m.;
(B) Only under the direct supervision of a licensed driver,
age twenty-one years or older, between the hours of eleven p.m. and
five a.m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or(iv) An emergency situation that requires the licensee to
operate a motor vehicle to prevent bodily injury or death of
another;
(C) All occupants shall use safety belts in accordance with
the provisions of section forty-nine, article fifteen, chapter
seventeen-c of this code;
(D) Operates the vehicle with no more than three passengers
under the age of nineteen, unless the passengers are family
members, in addition to the driver;
(E) Without any measurable blood alcohol content in accordance
with the provisions of subsection (h), section two, article five,
chapter seventeen-c of this code;
(F) Maintains current school enrollment and is making
satisfactory academic progress or otherwise shows compliance with
the provisions of section eleven, article eight, chapter eighteen
of this code;
(G) A holder of a level two intermediate driver's license who
is under the age of eighteen years may not use a wireless
communication device while operating a motor vehicle, unless the
use of the wireless communication device is for contacting a 9-1-1
system. A law-enforcement officer may enforce the provisions of
this paragraph only as a secondary action when a law-enforcement
officer with probable cause detains a driver for a suspected
violation of another provision of this code. A person violating
the provisions of this paragraph is guilty of a misdemeanor and,
upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars;
and for a third or subsequent offense be fined seventy-five dollars.
(H) Upon the first conviction for a moving traffic violation
or a violation of paragraph (A), (B), (C), (D) or (G), subdivision
(1), subsection (d) of this section of the terms and conditions of
a level two intermediate driver's license, the licensee shall
enroll in an approved driver improvement program unless a greater
penalty is required by this section or by any other provision of
this code.
At the discretion of the commissioner, completion of an
approved driver improvement program may be used to negate the
effect of a minor traffic violation as defined by the commissioner
against the one year conviction-free driving criteria for early
eligibility for a level three driver's license; and
(I) Upon the second conviction for a moving traffic violation
or a violation of the terms and conditions of the level two
intermediate driver's license, the licensee's privilege to operate
a motor vehicle shall be revoked or suspended for the applicable
statutory period or until the licensee's eighteenth birthday,
whichever is longer unless a greater penalty is required by this
section or any other provision of this code. Any person whose
driver's license has been revoked as a level two intermediate
driver, upon reaching the age of eighteen years and if otherwise
eligible may reapply for an instruction permit, then a driver's
license in accordance with the provisions of sections five, six and
seven of this article.(e)
Level three, full Class E license. -- The level three
license is valid until thirty days after the date the licensee
attains his or her twenty-first birthday. Unless otherwise provided
in this section or any other section of this code, the holder of a
level three full Class E license is subject to the same terms and
conditions as the holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate
a motor vehicle has not been suspended, revoked or otherwise
canceled and who meets all other requirements of the code may be
issued a level three full Class E license without further
examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article;
(B) Has held the level two intermediate license conviction
free for the twelve-month period immediately preceding the date of
the application;
(C) Has completed any driver improvement program required
under paragraph (G), subdivision (2), subsection (d) of this
section; and
(D) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code;
(E) Presents a Driver's Eligibility Certificate or otherwise
shows compliance with the provisions of section eleven, article
eight, chapter eighteen of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the
provisions of section six of this article; and
(B) Pays a fee of two dollars and fifty cents for each year
the license is valid. An additional fee of fifty cents shall be
collected to be deposited in the Combined Voter Registration and
Driver's Licensing Fund established in section twelve, article two,
chapter three of this code.
ARTICLE 3. CANCELLATION, SUSPENSION, OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license;
hearing.
(a) The division is hereby authorized to suspend the driver's
license of any person without preliminary hearing upon a showing by
its records or other sufficient evidence that the licensee:
(1) Has committed an offense for which mandatory revocation of
a driver's license is required upon conviction;
(2) Has by reckless or unlawful operation of a motor vehicle,
caused or contributed to an accident resulting in the death or
personal injury of another or property damage;
(3) Has been convicted with such frequency of serious offenses
against traffic regulations governing the movement of vehicles as
to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways;
(4) Is an habitually reckless or negligent driver of a motor
vehicle;
(5) Is incompetent to drive a motor vehicle;
(6) Has committed an offense in another state which if
committed in this state would be a ground for suspension or revocation;
(7) Has failed to pay or has defaulted on a plan for the
payment of all costs, fines, forfeitures or penalties imposed by a
magistrate court or municipal court within ninety days, as required
by section two-a, article three, chapter fifty or section two-a,
article ten, chapter eight of this code;
(8) Has failed to appear or otherwise respond before a
magistrate court or municipal court when charged with a motor
vehicle violation as defined in section three-a of this article;
(9) Is under the age of eighteen and has withdrawn either
voluntarily or involuntarily due to misconduct from a secondary
school or has failed to maintain satisfactory academic progress, as
provided in section eleven, article eight, chapter eighteen of this
code; or
(10) Has failed to pay overdue child support or comply with
subpoenas or warrants relating to paternity or child support
proceedings, if a circuit court has ordered the suspension of the
license as provided in article five-a, chapter forty-eight-a of
this code and the child support enforcement division has forwarded
to the division a copy of the court order suspending the license,
or has forwarded its certification that the licensee has failed to comply with a new or modified order that stayed the suspension and
provided for the payment of current support and any arrearage due.
(b) The driver's license of any person having his or her
license suspended shall be reinstated if:
(1) The license was suspended under the provisions of
subdivision (7), subsection (a) of this section and the payment of
costs, fines, forfeitures or penalties imposed by the applicable
court has been made;
(2) The license was suspended under the provisions of
subdivision (8), subsection (a) of this section, and the person
having his or her license suspended has appeared in court and has
prevailed against the motor vehicle violations charged; or
(3) The license was suspended under the provisions of
subdivision (10), subsection (a) of this section, and the division
has received a court order restoring the license or a certification
by the child support enforcement division that the licensee is
complying with the original support order or a new or modified
order that provides for the payment of current support and any
arrearage due.
(c) Any reinstatement of a license under subdivision (1), (2)
or (3), subsection (b) of this section shall be subject to a
reinstatement fee designated in section nine of this article.
(d) Upon suspending the driver's license of any person as
hereinbefore in this section authorized, the division shall
immediately notify the licensee in writing, sent by certified mail,
return receipt requested, to the address given by the licensee in applying for license, and upon his request shall afford him an
opportunity for a hearing as early as practical within not to
exceed twenty days after receipt of such request in the county
wherein the licensee resides unless the division and the licensee
agree that such hearing may be held in some other county. Upon
such hearing the commissioner or his duly authorized agent may
administer oaths and may issue subpoenas for the attendance of
witnesses and the production of relevant books and papers and may
require a reexamination of the licensee. Upon such hearing the
division shall either rescind its order of suspension or, good
cause appearing therefor, may extend the suspension of such license
or revoke such license. The provisions of this subsection (d)
providing for notice and hearing are not applicable to a suspension
under subdivision (10), subsection (a) of this section.
CHAPTER 18. EDUCATION.
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-11. School attendance and satisfactory academic progress as
conditions of licensing for privilege of operation of
motor vehicle.
(a) In accordance with the provisions of sections three-a and
five, article two, chapter seventeen-b of this code, the Division
of Motor Vehicles shall deny a license or instruction permit for
the operation of a motor vehicle to any person under the age of
eighteen who does not at the time of application present a diploma
or other certificate of graduation issued to the person from a secondary high school of this state or any other state or
documentation that the person: (1) Is enrolled and making
satisfactory progress in a course leading to a general educational
development certificate (GED) from a state-approved institution or
organization or has obtained the certificate; (2) is enrolled and
is making satisfactory academic progress in a secondary school of
this state or any other state; (3) is excused from the requirement
due to circumstances beyond his or her control; or (4) is enrolled
in an institution of higher education as a full-time student in
this state or any other state.
(b) The attendance director or chief administrator shall upon
request provide a Driver's Eligibility Certificate on a form
approved by the Department of Education to any student at least
fifteen but less than eighteen years of age who is properly
enrolled and is making satisfactory academic progress in a school
under the jurisdiction of the official for presentation to the
Division of Motor Vehicles on application for or reinstatement of
an instruction permit or license to operate a motor vehicle.
(c) Whenever a student at least fifteen but less than eighteen
years of age, except as provided in subsection (g) of this section,
withdraws from school, the attendance director or chief
administrator shall notify the Division of Motor Vehicles of the
student's withdrawal no later than five days from the date of the
withdrawal. Within five days of receipt of the notice, the
Division of Motor Vehicles shall send notice to the student that
the student's instruction permit or license to operate a motor vehicle will be suspended under the provisions of section six,
article three, chapter seventeen-b of this code on the thirtieth
day following the date the notice was sent unless documentation of
compliance with the provisions of this section is received by the
Division of Motor Vehicles before that time. The notice shall also
advise the student that he or she is entitled to a hearing before
the county superintendent of schools or his or her designee or
before the appropriate private school official concerning whether
the student's withdrawal from school was due to a circumstance or
circumstances beyond the control of the student. If suspended, the
division may not reinstate an instruction permit or license until
such time as the student returns to school and shows satisfactory
academic progress or until such time as the student attains
eighteen years of age.
(d) Whenever a student at least fifteen but less than eighteen
years of age is enrolled in a secondary school and fails to
maintain satisfactory academic progress, the attendance director or
chief administrator shall follow the procedures set out in
subsection (c) of this section to notify the Division of Motor
Vehicles. Within five days of receipt of the notice, the Division
of Motor Vehicles shall send notice to the student that the
student's instruction permit or license will be suspended under the
provisions of section six, article three, chapter seventeen-b of
this code on the thirtieth day following the date the notice was
sent unless documentation of compliance with the provisions of this
section is received by the Division of Motor Vehicles before that time. The notice shall also advise the student that he or she is
entitled to a hearing before the county superintendent of schools
or his or her designee or before the appropriate private school
official concerning whether the student's failure to make
satisfactory academic progress was due to a circumstance or
circumstances beyond the control of the student. Once suspension
is ordered, the division may not reinstate an instruction permit or
license until such time as the student shows satisfactory academic
progress or until such time as the student attains eighteen years
of age.
(e) Upon written request of a student, within ten days of
receipt of a notice of suspension as provided by this section, the
Division of Motor Vehicles shall afford the student the opportunity
for an administrative hearing. The scope of the hearing shall be
limited to determining if there is a question of improper identity,
incorrect age, or some other clerical error.
(f) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or
fifteen total days unexcused absences during a school year, or
suspension pursuant to subsections (a) and (b) of section one-a,
article five, chapter eighteen-a of this code.
(2) "Satisfactory academic progress" means the attaining and
maintaining of grades sufficient to allow for graduation and
course-work in an amount sufficient to allow graduation in five
years or by age nineteen, whichever is earlier.
(3) "Circumstances outside the control of the student" shall include, but not be limited to, medical reasons, familial
responsibilities and the necessity of supporting oneself or
another.
(4) Suspension or expulsion from school or imprisonment in a
jail or a West Virginia correctional facility is not a circumstance
beyond the control of the student.
(g) Whenever the withdrawal from school of the student, the
student's failure to enroll in a course leading to or to obtain a
GED or high school diploma, or the student's failure to make
satisfactory academic progress is due to a circumstance or
circumstances beyond the control of the student, or the withdrawal
from school is for the purpose of transfer to another school as
confirmed in writing by the student's parent or guardian, no notice
shall be sent to the Division of Motor Vehicles to suspend the
student's motor vehicle operator's license and if the student is
applying for a license, the attendance director or chief
administrator shall provide the student with documentation to
present to the Division of Motor Vehicles to excuse the student
from the provisions of this section. The school district
superintendent (or the appropriate school official of any private
secondary school) with the assistance of the county attendance
director and any other staff or school personnel shall be the sole
judge of whether any of the grounds for denial or suspension of a
license as provided by this section are due to a circumstance or
circumstances beyond the control of the student.
(h) The State Board shall promulgate rules necessary for uniform implementation of this section among the counties and as
may otherwise be necessary for the implementation of this section.
The rule may not include attainment by a student of any certain
grade point average as a measure of satisfactory progress toward
graduation.