COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 186
(By Senator Kessler)
____________
[Originating in the Committee on the Judiciary;
reported February 26, 2010.]
____________
A BILL to amend and reenact §17C-5-7 of the Code of West Virginia,
1931, as amended; to amend and reenact §17C-5A-1a AND §17C-5A-
2 of said code; and to amend said code by adding thereto a new
section, designated §17C-5A-1b, relating to creating the
office of administrative law judges within the Department of
Transportation; outlining the powers of the administrative law
judges; clarifying the effect of a no contest plea on the
administrative license suspension process; and requiring the
state establish lawful arrest in administrative license
suspension proceedings where applicable.
Be it enacted by the Legislature of West Virginia:
That §17C-5-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5A-1a and §17C-5A-2 of said
code be amended and reenacted; and that said code be amended by
adding thereto a new section, designated §17C-5A-1b, all to read as
follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-7. Refusal to submit to tests; revocation of license or
privilege; consent not withdrawn if person arrested
is incapable of refusal; hearing.
(a) If any person under arrest as specified in section four of
this article refuses to submit to any secondary chemical test, the
tests shall not be given:
Provided, That prior to the refusal, the
person is given an oral warning and a written statement advising
him or her that his or her refusal to submit to the secondary test
finally designated will result in the revocation of his or her
license to operate a motor vehicle in this state for a period of at
least forty-five days and up to life; and that after fifteen
minutes following the warnings the refusal is considered final.
The arresting officer after that period of time expires has no
further duty to provide the person with an opportunity to take the
secondary test. The officer shall, within forty-eight hours of the
refusal, sign and submit to the Commissioner of Motor Vehicles a
written statement of the officer that: (1) He or she 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) the person was lawfully placed under
arrest for an offense relating to driving a motor vehicle in this
state while under the influence of alcohol, controlled substances
or drugs; (3) the person refused to submit to the secondary
chemical test finally designated in the manner provided in section
four of this article; and (4) the person was given a written statement advising him or her that his or her license to operate a
motor vehicle in this state would be revoked for a period of at
least forty-five days and up to life if he or she refused to submit
to the secondary test finally designated in the manner provided in
section four of this article. The signing of the statement
required to be signed by this section constitutes an oath or
affirmation by the person signing the statement that the statements
contained in the statement are true and that any copy filed is a
true copy. The statement shall contain upon its face a warning to
the officer signing that to willfully sign a statement containing
false information concerning any matter or thing, material or not
material, is false swearing and is a misdemeanor. Upon receiving
the statement the commissioner shall make and enter an order
revoking the person's license to operate a motor vehicle in this
state for the period prescribed by this section.
For the first refusal to submit to the designated secondary
chemical test, the commissioner shall make and enter an order
revoking the person's license to operate a motor vehicle in this
state for a period of one year or forty-five days, with an
additional one year of participation in the Motor Vehicle Alcohol
Test and Lock Program in accordance with the provisions of section
three-a, article five-a of this chapter:
Provided, That a person
revoked for driving while under the influence of drugs is not
eligible to participate in the Motor Vehicle Test and Lock Program.
The application for participation in the Motor Vehicle Alcohol Test
and Lock Program shall be considered to be a waiver of the hearing provided in section two of said article. If the
commissioner
person's license has previously
been revoked
the person's license
under the provisions of this section, the commissioner shall, for
the refusal to submit to the designated secondary chemical test,
make and enter an order revoking the person's license to operate a
motor vehicle in this state for a period of ten years:
Provided,
however, That the license may be reissued in five years in
accordance with the provisions of section three, article five-a of
this chapter. If the
commissioner person's license has previously
been revoked
the person's license more than once under the
provisions of this section, the commissioner shall, for the refusal
to submit to the designated secondary chemical test, make and enter
an order revoking the person's license to operate a motor vehicle
in this state for a period of life. A copy of each order shall be
forwarded to the person by registered or certified mail, return
receipt requested, and shall contain the reasons for the revocation
and shall specify the revocation period imposed pursuant to this
section. A revocation shall not become effective until ten days
after receipt of the copy of the order. Any person who is
unconscious or who is otherwise in a condition rendering him or her
incapable of refusal shall be considered not to have withdrawn his
or her consent for a test of his or her blood, breath or urine as
provided in section four of this article and the test may be
administered although the person is not informed that his or her
failure to submit to the test will result in the revocation of his
or her license to operate a motor vehicle in this state for the period provided for in this section. A revocation under this
section shall run concurrently with the period of any suspension or
revocation imposed in accordance with other provisions of this code
and growing out of the same incident which gave rise to the arrest
for driving a motor vehicle while under the influence of alcohol,
controlled substances or drugs and the subsequent refusal to
undergo the test finally designated in accordance with the
provisions of section four of this article.
(b) For the purposes of this section, where reference is made
to previous suspensions or revocations under this section, the
following types of suspensions or revocations shall also be
regarded as suspensions or revocations under this section:
(1) 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 of this
article for conduct which occurred on or after June 10, 1983; and
(2) Any revocation under the provisions of section one or two,
article five-a of this chapter for conduct which occurred on or
after June 10, 1983.
(c) A person whose license to operate a motor vehicle in this
state has been revoked shall be afforded an opportunity to be
heard, in accordance with the provisions of section two, article
five-a of this chapter.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND
REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or
drugs.
(a) If a person is convicted for an offense defined in section
two, article five of this chapter or for an offense described in a
municipal ordinance which has the same elements as an offense
described in said section because the person did drive a motor
vehicle while under the influence of alcohol, controlled substances
or drugs, or the combined influence of alcohol or controlled
substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in his or her 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,
and if the person does not act to appeal the conviction within the
time periods described in subsection (b) of this section, the
person's license to operate a motor vehicle in this state shall be
revoked or suspended in accordance with the provisions of this
section.
(b) The clerk of the court in which a person is convicted for
an offense described in section two, article five of this chapter
or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall forward
to the commissioner a transcript of the judgment of conviction. If
the conviction is the judgment of a magistrate court, the
magistrate court clerk shall forward the transcript when the person
convicted has not requested an appeal within twenty days of the
sentencing for such conviction. If the conviction is the judgment
of a mayor or police court judge or municipal court judge, the
clerk or recorder shall forward the transcript when the person
convicted has not perfected an appeal within ten days from and
after the date upon which the sentence is imposed. If the
conviction is the judgment of a circuit court, the circuit clerk
shall forward the transcript when the person convicted has not
filed a notice of intent to file a petition for appeal or writ of
error within thirty days after the judgment was entered.
(c) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted for an offense described in section two, article five of
this chapter or for an offense described in a municipal ordinance
which has the same elements as an offense described in said section
because the person did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or the
combined influence of alcohol or controlled substances or drugs, or
did drive a motor vehicle while having an alcohol concentration in
his or her blood of eight hundredths of one percent or more, by
weight, the commissioner shall make and enter an order revoking the
person's license to operate a motor vehicle in this state. If the commissioner determines that the person was convicted 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 commissioner shall make and enter an order
suspending the person's license to operate a motor vehicle in this
state. The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods provided for in
section two of this article. Further, the order shall give the
procedures for requesting a hearing which is to be held in
accordance with the provisions of said section. The person shall be
advised in the order that because of the receipt of a transcript of
the judgment of conviction by the commissioner a presumption exists
that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment
of conviction. A copy of the order shall be forwarded to the person
by registered or certified mail, return receipt requested. No
revocation or suspension shall become effective until ten days
after receipt of a copy of the order.
(d) The provisions of this section shall not apply if an order
reinstating the operator's license of the person has been entered
by the commissioner prior to the receipt of the transcript of the judgment of conviction.
(e) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
A plea of no contest does not constitute a
conviction for purposes of this section except where the person
holds a commercial drivers' license or operates a commercial
vehicle.
§17C-5A-1b. Creation of office of administrative law judges;
powers of chief administrative law judge and said
office.
(a) There is hereby created within the Department of
Transportation the Office of Administrative Law Judges which shall
be referred to as the office of judges. The office of judges shall
be under the direct supervision of the Department of
Transportation, and shall be independent from the Division of Motor
Vehicles.A chief administrative law judge, who shall be appointed
by the Governor with the advice and consent of the Senate, shall
administer the office of judges.
(b) The chief administrative law judge shall employ
administrative law judges and other personnel that are necessary
for the proper conduct of a system of administrative review of
orders issued by the division, pursuant to section one, article
five-a, chapter seventeen-c of this code, that have been objected
to by a party, and the conduct of hearings in which it is alleged
that the person whose license is at issue committed any of the acts described in subsections (g) through (o) of section two, article
five-a, chapter seventeen-c of this code. The employees shall be
in the classified service of the state. Qualifications,
compensation and personnel practice relating to the employees of
the office of judges shall be governed by the provisions of this
code and rules of the classified service pursuant to article six,
chapter twenty-nine of this code:
Provided, That, notwithstanding
any provision of this code to the contrary, those who are serving
as hearing examiners with the division of motor vehicles as of the
effective date of this section shall automatically become eligible
and shall be given first preference in hiring as administrative law
judges under this section. The chief administrative law judge shall
supervise the other administrative law judges and other personnel
which collectively shall be referred to in this chapter as the
office of judges.
(c) The administrative expense of the office of judges shall
be included within the annual budget of the Department of
Transportation.
(d) The chief administrative law judge has the power to hear
and determine all disputed claims in accordance with the provisions
of this article, take oaths, examine witnesses, issue subpoenas,
establish the amount of witness fees, keep records and make reports
that are necessary for disputed claims and exercise any additional
powers, including the delegation of powers to administrative law
judges that are necessary for the proper conduct of a system of
administrative review of disputed claims and conduct of hearings concerning acts described in subsections (g) through (o) of section
two, article five-a, chapter seventeen-c of this code. The chief
administrative law judge shall make reports that are requested of
him or her by the Secretary of Transportation.
(e) Notwithstanding any provision of this code to the
contrary, the commissioner of the division of motor vehicles may be
represented at hearings conducted before the office of judges by
members of his legal staff, and his evidence may be considered in
such hearings with or without such representation.
§17C-5A-2. Hearing; revocation; review.
(a)
Upon the written request of a person whose license to
operate a motor vehicle in this state has been revoked or suspended
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
judges. Upon the receipt of an objection, the office of judges
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 judges. The written
request objection must be filed with
the commissioner office of judges in person or by registered or
certified mail, return receipt requested, within thirty calendar
days after receipt of a copy of the order of revocation or
suspension or no hearing will be granted. The hearing shall be
before
the commissioner or a hearing examiner retained by the
commissioner an administrative law judge who shall rule on evidentiary issues and
all of the pertinent provisions of article
five, chapter twenty-nine-a of this code shall apply, including but
not limited to those regarding appeal. Upon consideration of the
designated record, the chief administrative law judge or other
authorized adjudicator within the office of judges 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. submit
proposed findings of fact and conclusions of law for the
consideration of the commissioner and all of the pertinent
provisions of article five, chapter twenty-nine-a of this code
shall apply. The commissioner may reject or modify the hearing
examiner's proposed findings of fact and conclusions of law, in
writing, and only if:
(1) There is an error of law;
(2) They are clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
(3) They are arbitrary or capricious or characterized by abuse
of discretion or clearly unwarranted exercise of discretion.
(b) The hearing shall be held at an office of the division
of
motor vehicles 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.
(c) Any hearing shall be held within one hundred eighty days
after the date upon which the
commissioner office of judges
received the timely written
request objection unless there is a
postponement or continuance. The
commissioner office of judges may
postpone or continue any hearing on
the commissioner's its own
motion or upon application
for each person of either party for good
cause shown. The
commissioner office of judges shall adopt and
implement by a procedural rule written policies governing the
postponement or continuance of any hearing on
the commissioner's
its own motion or for the benefit of any law-enforcement officer
or any person requesting the hearing and the policies shall be
enforced and applied to all parties equally. For the purpose of
conducting the hearing, the
commissioner office of judges may issue
subpoenas and subpoenas duces tecum in accordance with the
provisions of section one, article five, chapter twenty-nine-a of
this code:
Provided, That the notice of hearing to the appropriate
law-enforcement officers by registered or certified mail, return
receipt requested, constitutes a subpoena to appear at the hearing
without the necessity of payment of fees by the Division of Motor
Vehicles.
(d) Any investigating officer who submits a statement pursuant
to section one of this article that results in a hearing pursuant
to this section shall not attend the hearing on the subject of that
affidavit unless requested to do so by the party whose license is
at issue in that hearing or by the commissioner
or by the office of
judges. The hearing request form shall Upon receipt of an objection pursuant to subsection (a) of this section, the office of
judges shall send the party whose license is at issue a notice
which shall clearly and concisely inform
a person seeking a hearing
that person of the fact that the investigating officer will only
attend the hearing if requested to do so and provide for a box to
be checked requesting the investigating officer's attendance. The
language shall appear prominently on the
hearing request form sent
by the office of judges.
The office of judges shall be responsible
for transmitting the request to the officer. The Division of Motor
Vehicles is solely responsible for causing the attendance of the
investigating officers. Law-enforcement officers shall be
compensated for the time expended in their travel and appearance
before the
commissioner office of judges 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. If the party whose license is at issue does not request the
investigating officer to attend the hearing, the
commissioner
office of judges shall consider the written statement, test results
and any other information submitted by the investigating officer
pursuant to section one of this article in that officer's absence.
(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.
The
commissioner office of judges may propose a legislative
rule in compliance with the provisions of article three, chapter
twenty-nine-a of this code which may provide that if a person
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, intends to challenge
the results of any secondary chemical test of blood, breath or
urine under section seven, article five of this chapter or intends
to cross-examine the individual or individuals who administered the
test or performed the chemical analysis, the person shall, within
an appropriate period of time prior to the hearing, notify the
commissioner office of judges in writing of his or her intention.
The rule may provide that when there is a failure to comply with
the notice requirement, the results of the secondary test, if any,
shall be admissible as though the person and the commissioner had
stipulated the admissibility of the evidence. Any rule shall provide that the rule shall not be invoked in the case of a person
who is not represented by counsel unless the communication from the
commissioner office of judges to the person establishing a time and
place for the hearing also informed the person of the consequences
of the person's failure to timely notify the
commissioner office of
judges of the person's intention to challenge the results of the
secondary chemical test or cross-examine the individual or
individuals who administered the test or performed the chemical
analysis.
(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
commissioner office of judges 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;
(2) (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
(3) (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
commissioner office of judges 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
commissioner office of judges 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 office of judges shall revoke the person's license
for a period of ten years:
Provided, That if the
commissioner
person's license has previously
been suspended or revoked
the
person's license 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
commissioner office of judges
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
commissioner
person's license has previously
been suspended or revoked
the
person's license 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
commissioner office of judges
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
commissioner license has previously
been
suspended or revoked
the person's license 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
commissioner
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.
(j) If the
commissioner office of judges 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 person's 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 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, however, That if the
commissioner person's license has
previously
been suspended or revoked
the person's license 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 further, That if the
commissioner 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.
(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
commissioner office of judges 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 article three-a, article five-a, chapter seventeen-c
of this code:
Provided, That if the
commissioner person's license
has previously
been suspended or revoked
the person's license 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
commissioner 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
commissioner person's license has
previously
been suspended or revoked the person's license 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
commissioner 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.
(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
commissioner office of judges 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
commissioner office of judges 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
commissioner person's license
has previously
been suspended or revoked the person's license 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
commissioner office of judges 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
commissioner office of
judges further finds that the alcohol concentration in the blood
was a contributing cause to the bodily injury, the
commissioner
office of judges shall revoke the person's license for a period of
two years:
Provided, That if the
commissioner person's license has
previously
been suspended or revoked the person's license 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
commissioner 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.
(n) If the
commissioner office of judges 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
commissioner
person's license has previously
been suspended or revoked the person's license 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
commissioner office of judges
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
commissioner person's license has previously
been suspended or revoked the person's license 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
commissioner
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.
(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
commissioner
office of judges 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;
(2) (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;
(3)
(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
(4) (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
commissioner office of judges 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;
(2)
(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;
(3) (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
(4) (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 in the
manner provided in said section.
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
commissioner office of judges finds to the contrary
with respect to the above issues 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
commissioner's office of judges' order findings of fact and
conclusions of law made and entered following the hearing shall be
served upon the person
and the commissioner by registered or
certified mail, return receipt requested. During the pendency of
any hearing, the revocation of the person's license to operate a
motor vehicle in this state shall be stayed.
If the
commissioner office of judges shall after hearing make
and enter an order affirming the commissioner's earlier order of
revocation, the person shall be entitled to judicial review as set
forth in chapter twenty-nine-a of this code. The
commissioner
office of judges may not 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. Notwithstanding the provisions of section four, article five
of said chapter, the
commissioner office of judges 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.
(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 create the office of
administrative law judges within the Division of Motor Vehicles;
outlining the powers of the administrative law judges; making the
code uniform in language; restoring the element of lawful arrest to
that which must be proven at administrative revocation hearings,
and clarifying that no contest please shall not constitute convictions for purposes of administrative provisions.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-5A-1b is new; therefore, strike-throughs and underscoring
have been omitted.)