ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4167
(By Delegates
Miley, Wooton, Barker, Moore,
Shook, Ferro, Ellem, Schoen and Sobonya
)
[Passed March 11, 2010; in effect ninety days from passage.]
AN ACT to
amend and reenact §17C-5A-3 of the Code of West Virginia,
1931, as amended, relating to creation of a special revenue
account, known as the Department of Health and Human Resources
Safety and Treatment Fund; making a one-time transfer of
monies into the fund; providing rule-making authority; and
control and use of the fund by the agency.
Be it enacted by the Legislature of West Virginia:
That §17C-5A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURE FOR SUSPENSION AND REVOCATION
OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF
ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall administer a comprehensive safety
and treatment program for persons whose licenses have been revoked under the provisions of this article or section seven, article five
of this chapter or subsection (6), section five, article three,
chapter seventeen-b of this code and shall also establish the
minimum qualifications for mental health facilities, day report
centers, community correction centers or other public agencies or
private entities conducting the safety and treatment program:
Provided, That the Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse may establish standards
whereby the division will accept or approve participation by
violators in another treatment program which provides the same or
substantially similar benefits as the safety and treatment program
established pursuant to this section.
(b) The program shall include, but not be limited to,
treatment of alcoholism, alcohol and drug abuse, psychological
counseling, educational courses on the dangers of alcohol and drugs
as they relate to driving, defensive driving or other safety
driving instruction and other programs designed to properly
educate, train and rehabilitate the offender.
(c) The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall provide for the preparation of an
educational and treatment the program for each person whose license
has been revoked under the provisions of this article or section
seven
, article five of this chapter or subsection (6), section
five, article three, chapter seventeen-b of this code which shall
contain the following: (1) A listing and evaluation of the
offender's prior traffic record; (2) the characteristics and history of alcohol or drug use, if any; (3) his or her amenability
to rehabilitation through the alcohol safety program; and (4) a
recommendation as to treatment or rehabilitation and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment.
(d) There is hereby created a special revenue account within
the State Treasury known as the Department of Health and Human
Resources Safety and Treatment Fund. The account shall be
administered by the Secretary of the Department of Health and Human
Resources for the purpose of administering the comprehensive safety
and treatment program established by subsection (a) of this
section. The account may be invested, and all earnings and interest
accruing shall be retained in the account. The Auditor shall
conduct an audit of the fund at least every three fiscal years.
Effective July 1, 2010, the State Treasurer shall make a one-
time transfer of $250,000 from the Motor Vehicle Fees Fund into the
Department of Health and Human Resources Safety and Treatment Fund.
(e) The program provider shall collect the established fee
from each participant upon enrollment unless the department has
determined that the participant is an indigent based upon criteria
established pursuant to legislative rule authorized in this
section. Program providers shall remit to the Department of Health
and Human Resources a portion of the fee collected, which shall be
deposited by the Secretary of the Department of Health and Human
Resources into the Department of Health and Human Resources Safety and Treatment Fund
. The Department of Health and Human Resources
shall reimburse enrollment fees to program providers for each
eligible indigent offender.
(f) On or before January 15 of each year, the Secretary of the
Department of Health and Human Resources shall report to the
Legislature on:
(1) The total number of offenders participating in the safety
and treatment program during the prior year;
(2) The total number of indigent offenders participating in
the safety and treatment program during the prior year;
(3) The total number of program providers during the prior
year; and
(4) The total amount of reimbursements paid to program
provider during the prior year.
(g) The Commissioner of the Division of Motor Vehicles, after
giving due consideration to the program developed for the offender,
shall prescribe the necessary terms and conditions for the
reissuance of the license to operate a motor vehicle in this state
revoked under this article or section seven, article five of this
chapter or subsection (6), section five, article three, chapter
seventeen-b of this code which shall include successful completion
of the educational, treatment or rehabilitation program, subject to
the following:
(1) When the period of revocation is six months, the license
to operate a motor vehicle in this State may not be reissued until:
(A) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in
effect;(B) the offender has successfully completed the program; (C)
all costs of the program and administration have been paid; and (D)
all costs assessed as a result of a revocation hearing have been
paid.
(2) When the period of revocation is for a period of one year
or for more than a year, the license to operate a motor vehicle in
this state may not be reissued until: (A) At least one-half of the
time period has elapsed from the date of the initial revocation,
during which time the revocation was actually in effect; (B) the
offender has successfully completed the program; (C) all costs of
the program and administration have been paid; and (D) all costs
assessed as a result of a revocation hearing have been paid.
Notwithstanding any provision in this code, a person whose license
is revoked for refusing to take a chemical test as required by
section seven, article five of this chapter for a first offense is
not eligible to reduce the revocation period by completing the
safety and treatment program.
(3) When the period of revocation is for life, the license to
operate a motor vehicle in this State may not be reissued until:
(A) At least ten years have elapsed from the date of the initial
revocation, during which time the revocation was actually in
effect; (B) the offender has successfully completed the program;
(C) all costs of the program and administration have been paid; and
(D) all costs assessed as a result of a revocation hearing have
been paid.
(4) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private
entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program shall only have to certify that the person has
successfully completed the program.
(h) (1) The Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse shall provide for the preparation of
an educational program for each person whose license has been
suspended for sixty days pursuant to the provisions of subsection
(n), section two, article five-a of this chapter. The educational
program shall consist of not less than twelve nor more than
eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered,
the license to operate a motor vehicle may not be reinstated until:
(A) At least sixty days have elapsed from the date of the initial
suspension, during which time the suspension was actually in
effect; (B) the offender has successfully completed the educational
program; (C) all costs of the program and administration have been
paid; and (D) all costs assessed as a result of a suspension
hearing have been paid.
(i) A required component of the treatment program provided in
subsection (b) of this section and the education program provided
for in subsection (c) of this section shall be participation by the
violator with a victim impact panel program providing a forum for
victims of alcohol and drug-related offenses and offenders to share first-hand experiences on the impact of alcohol and drug-related
offenses in their lives. The Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse shall propose and
implement a plan for victim impact panels where appropriate numbers
of victims are available and willing to participate and shall
establish guidelines for other innovative programs which may be
substituted where the victims are not available to assist persons
whose licenses have been suspended or revoked for alcohol and drug-
related offenses to gain a full understanding of the severity of
their offenses in terms of the impact of the offenses on victims
and offenders. The plan shall require, at a minimum, discussion
and consideration of the following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug-related offenses upon victims or offenders.
The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse shall ensure that any meetings between
victims and offenders shall be nonconfrontational and ensure the
physical safety of the persons involved.
(j)(1) The Secretary of the Department of Health and Human
Resources shall promulgate a rule for legislative approval in accordance with article three, chapter twenty-nine-a of this code
to administer the provisions of this section and establish a fee to
be collected from each offender enrolled in the safety and
treatment program. The rule shall include: (A) A reimbursement
mechanism to program providers of required fees for the safety and
treatment program for indigent offenders, criteria for determining
eligibility of indigent offenders, and any necessary application
forms; and (B) program standards that encompass provider criteria
including minimum professional training requirements for providers,
curriculum approval, minimum course length requirements and other
items that may be necessary to properly implement the provisions of
this section.
(2) The Legislature finds that an emergency exists and,
therefore, the secretary shall file by July 1, 2010, an emergency
rule to implement this section pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.