ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2272
(By Delegate Love)
[Passed March 10, 1995; in effect ninety days from passage.]
AN ACT to amend and reenact section three-a, article five-a,
chapter seventeen-c of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
expanding the availability of the motor vehicle test and
lock program to additional persons whose licenses to operate
a motor vehicle have been suspended or revoked for offenses
related to driving under the influence of alcohol,
controlled substances or drugs; authority of commissioner
to allow use of extra devices; and exception for test and
lock participants at job site.
Be it enacted by the Legislature of West Virginia:
That section three-a, article five-a, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one,
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-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persons whose licenses have been revoked pursuant to this article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. Such 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. 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. Such
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, such person is determined to be under the
influence of alcohol.
(b) (1) Any person whose license has been revoked pursuant
to this article or the provisions of article five of this chapter
is eligible to participate in the program when such person's
minimum revocation period as specified by subsection (c) of this
section has expired and such 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 no
person whose license has been revoked pursuant to the provisions of section one-a of this article for conviction of an offense
defined in subsections (a) or (b), section two, article five of
this chapter, or pursuant to the provisions of subsections (f) or
(g), section two of this article, shall be eligible for
participation in the program:
Provided, however, That any person
whose license is revoked pursuant to this article or pursuant to
article five of this chapter for an act which occurred either
while participating in or after successfully completing the
program shall not again be eligible to participate in such
program.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (l), 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 ten
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 shall be 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 thereafter 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 shall
operate a motor vehicle unless approved to do so by the
commissioner.
(c) For purposes of this section, "minimum revocation
period" means the portion which has actually expired of the period of revocation imposed by the commissioner pursuant to this
article or the provisions of article five of this chapter upon a
person eligible for participation in the program 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 section
two, article five of this chapter, or pursuant to subsection (i),
section two of this article, the minimum period of revocation
before such person is eligible for participation in the test and
lock program is thirty days, and the minimum period for the use
of the ignition interlock device is five months, or that period
described in subdivision (1), subsection (e) of this section,
whichever period is greater;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter,
refusal to submit to a designated secondary chemical test, the
minimum period of revocation before such person is eligible for
participation in the test and lock program is thirty days, and
the minimum period for the use of the ignition interlock device
is nine months, or the period set forth in subdivision (1),
subsection (e) of this section, whichever period is greater;
(3) For a person whose license has been revoked for a second
offense pursuant to the provisions of section one-a of this
article for conviction of an offense defined in section two,
article five of this chapter, or pursuant to section two of this
article, the minimum period of revocation before such person is
eligible for participation in the test and lock program is nine
months, and the minimum period for the use of the ignition
interlock device is eighteen months, or that period set forth in
subdivision (2), subsection (e) of this section, whichever period
is greater;
(4) For a person whose license has been revoked for any
other period of time pursuant to the provisions of section one-a
of this article for conviction of an offense defined in section
two, article five of this chapter, or pursuant to section two of
this article or pursuant to section seven, article five of this
chapter, the minimum period of revocation is eighteen months,
and the minimum period for the use of the ignition interlock
device is two years, or that period set forth in subdivision (3),
subsection (e) of this section, whichever period is greater;
(5) An applicant for the test and lock program must 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
two-year period preceding the date of application for admission
to the test and lock program;
(6) The commissioner is hereby authorized to allow
individuals in the test and lock program an additional device or
devices if such is necessary for employment purposes.
(d) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to such person, and such
person shall be required to exhibit on demand, a driver's license
which shall reflect that such person is restricted to the
operation of a motor vehicle which is equipped with an approved
motor vehicle alcohol test and lock system.
(e) Any person who has completed the safety and treatment
program and who has not violated the terms required by the
commissioner of such person's participation in the motor vehicle
alcohol test and lock program shall be entitled to the
restoration of such person's driver's license upon the expiration
of:
(1) One hundred eighty days of the full revocation period
imposed by the commissioner for a person described in subdivision (1) or (2), subsection (c) of this section;
(2) The full revocation period imposed by the commissioner
for a person described in subdivision (3), subsection (c) of
this section;
(3) One year from the date a person described in subdivision
(4), subsection (c) of this section is permitted to operate a
motor vehicle by the commissioner.
(f) A person whose license has been suspended pursuant to
the provisions of subsection (l), section two of this article,
who has completed the educational program, and who has not
violated the terms required by the commissioner of such person's
participation in the motor vehicle alcohol test and lock program
shall be 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 shall be entitled to expungement under
the provisions of this subsection only once. The expungement shall be accomplished by physically marking the records to show
that such records have been expunged, and by securely sealing and
filing the records. Expungement shall have the legal effect as
if the suspension never occurred. The records shall 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 such information does not divulge the identity
of the person.
(g) 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 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 assists another person required by the terms of such other
person's participation in the motor vehicle alcohol test and lock
program to use a motor vehicle alcohol test and lock system in any effort to bypass the system is guilty of a misdemeanor, and,
upon conviction thereof, shall be confined in the county 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.