Senate Bill No. 443
(By Senators Kessler, Foster, Barnes,
Browning, Deem, Palumbo, Williams, White, Green, Jenkins, Unger,
Plymale, D. Facemire, Yost and Wells)
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[Introduced February 2, 2010; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §17C-5-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §17C-5A-3a of said
code, all relating to requiring persons convicted of driving
under the influence of alcohol and who are on probation,
paroled or on other conditional release for that offense to
participate in the Motor Vehicle Alcohol Test and Lock
Program; establishing conditions for participation in the
program; and providing a sentencing court with the authority
to set eligibility requirements for participation in the
program.
Be it enacted by the Legislature of West Virginia:
That §17C-5-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §17C-5A-3a of said code be
amended and reenacted, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-2. Driving under influence of alcohol, controlled
substances or drugs; penalties.
(a) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure; and
(3) Commits the act or failure in reckless disregard of the
safety of others and when the influence of alcohol, controlled
substances or drugs is shown to be a contributing cause to the
death, is guilty of a felony and, upon conviction thereof, shall be
imprisoned in a state correctional facility for not less than two
years nor more than ten years and shall be fined not less than
$1,000 nor more than $3,000.
(b) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes the death of any person
within one year next following the act or failure, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than ninety days nor more than one year and shall be
fined not less than $500 nor more than $1,000.
(c) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) While driving does any act forbidden by law or fails to
perform any duty imposed by law in the driving of the vehicle,
which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon
conviction thereof, shall be confined in jail for not less than one
day nor more than one year, which jail term is to include actual
confinement of not less than twenty-four hours, and shall be fined
not less than $200 nor more than $1,000.
(d) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight, but less than fifteen
hundredths of one percent, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for up to six months and shall be fined
not less than $100 nor more than $500. A person sentenced pursuant
to this subdivision shall receive credit for any period of actual
confinement he or she served upon arrest for the subject offense.
(e) Any person who drives a vehicle in this state while he or
she has an alcohol concentration in his or her blood of fifteen
hundredths of one percent or more, by weight, is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than six months, which jail term is to include actual confinement of not less than twenty-four
hours, and shall be fined not less than $200 nor more than $1,000.
A person sentenced pursuant to this subdivision subsection shall
receive credit for any period of actual confinement he or she
served upon arrest for the subject offense.
(f) Any person who, being an habitual user of narcotic drugs
or amphetamine or any derivative thereof, drives a vehicle in this
state is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not less than one day nor more than
six months, which jail term is to include actual confinement of not
less than twenty-four hours, and shall be fined not less than $100
nor more than $500. A person sentenced pursuant to this
subdivision subsection shall receive credit for any period of
actual confinement he or she served upon arrest for the subject
offense.
(g) Any person who:
(1) Knowingly permits his or her vehicle to be driven in this
state by any other person who:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug;
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight;
(2) Is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for not more than six months and shall be
fined not less than $100 nor more than $500.
(h) Any person who knowingly permits his or her vehicle to be
driven in this state by any other person who is an habitual user of
narcotic drugs or amphetamine or any derivative thereof is guilty
of a misdemeanor and, upon conviction thereof, shall be confined in
jail for not more than six months and shall be fined not less than
$100 nor more than $500.
(i) Any person under the age of twenty-one years who drives a
vehicle in this state while he or she has 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,
for a first offense under this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $25 nor more than $100. For a second or subsequent offense
under this subsection, the person is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail for twenty-four
hours and shall be fined not less than $100 nor more than $500. A
person who is charged with a first offense under the provisions of
this subsection may move for a continuance of the proceedings, from
time to time, to allow the person to participate in the Motor
Vehicle Alcohol Test and Lock Program as provided in section three-
a, article five-a of this chapter. Upon successful completion of
the program, the court shall dismiss the charge against the person and expunge the person's record as it relates to the alleged
offense. In the event the person fails to successfully complete
the program, the court shall proceed to an adjudication of the
alleged offense. A motion for a continuance under this subsection
may not be construed as an admission or be used as evidence.
A person arrested and charged with an offense under the
provisions of this subsection or subsection (a), (b), (c), (d),
(e), (f), (g) or (h) of this section may not also be charged with
an offense under this subsection arising out of the same
transaction or occurrence.
(j) Any person who:
(1) Drives a vehicle in this state while he or she:
(A) Is under the influence of alcohol;
(B) Is under the influence of any controlled substance;
(C) Is under the influence of any other drug;
(D) Is under the combined influence of alcohol and any
controlled substance or any other drug; or
(E) Has an alcohol concentration in his or her blood of eight
hundredths of one percent or more, by weight; and
(2) The person while driving has on or within the motor
vehicle one or more other persons who are unemancipated minors who
have not reached their sixteenth birthday is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for not less than two days nor more than twelve months, which jail
term is to include actual confinement of not less than forty-eight hours and shall be fined not less than $200 nor more than $1,000.
(k) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the second offense
under this section, is guilty of a misdemeanor and, upon conviction
thereof, shall be confined in jail for not less than six months nor
more than one year and the court may, in its discretion, impose a
fine of not less than $1,000 nor more than $3,000.
(l) A person violating any provision of subsection (b), (c),
(d), (e), (f), (g) or (i) of this section, for the third or any
subsequent offense under this section, is guilty of a felony and,
upon conviction thereof, shall be imprisoned in a state
correctional facility for not less than one nor more than three
years and the court may, in its discretion, impose a fine of not
less than $3,000 nor more than $5,000.
(m) For purposes of subsections (k) and (l) of this section
relating to second, third and subsequent offenses, the following
types of convictions are to be regarded as convictions under this
section:
(1) Any conviction under the provisions of subsection (a),
(b), (c), (d), (e), (f) or (g) of this section or under a prior
enactment of this section for an offense which occurred within the
ten-year period immediately preceding the date of arrest in the
current proceeding;
(2) Any conviction under a municipal ordinance of this state
or any other 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 subsection (a), (b), (c), (d), (e), (f), (g) or (h) of
this section, which offense occurred within the ten-year period
immediately preceding the date of arrest in the current proceeding.
(n) A person may be charged in a warrant or indictment or
information for a second or subsequent offense under this section
if the person has been previously arrested for or charged with a
violation of this section which is alleged to have occurred within
the applicable time period for prior offenses, notwithstanding the
fact that there has not been a final adjudication of the charges
for the alleged previous offense. In that case, the warrant or
indictment or information must set forth the date, location and
particulars of the previous offense or offenses. No person may be
convicted of a second or subsequent offense under this section
unless the conviction for the previous offense has become final.
(o) The fact that any person charged with a violation of
subsection (a), (b), (c), (d), (e) or (f) of this section, or any
person permitted to drive as described under subsection (g) or (h)
of this section, is or has been legally entitled to use alcohol, a
controlled substance or a drug does not constitute a defense
against any charge of violating subsection (a), (b), (c), (d), (e),
(f), (g) or (h) of this section.
(p) For purposes of this section, the term "controlled
substance" has the meaning ascribed to it in chapter sixty-a of
this code.
(q) The sentences provided in this section upon conviction for
a violation of this article are mandatory and are not subject to
suspension or probation: Provided, That the court may apply the
provisions of article eleven-a, chapter sixty-two of this code to
a person sentenced or committed to a term of one year or less for
a first offense under this section. An order for home detention by
the court pursuant to the provisions of article eleven-b of said
chapter may be used as an alternative sentence to any period of
incarceration required by this section for a first or subsequent
offense: Provided, however, That for any period of home
incarceration ordered for a person convicted of second offense
under this section, electronic monitoring shall be required for no
fewer than five days of the total period of home confinement
ordered and the offender may not leave home for those five days
notwithstanding the provisions of section five, article eleven-b,
chapter sixty-two of this code: Provided further, That for any
period of home incarceration ordered for a person convicted of a
third or subsequent violation of this section, electronic
monitoring shall be included for no fewer than ten days of the
total period of home confinement ordered and the offender may not
leave home for those ten days notwithstanding section five, article
eleven-b, chapter sixty-two of this code.
(r)
In addition to any fine or period of imprisonment set
permitted by this section, a court shall require that any person
who has been convicted of a violation of this section
involving driving while under the influence of alcohol
and who is sentenced
to a period of
probation, parole or supervised or conditional
release, to install and maintain, as a condition of
probation,
parole or supervised or conditional release and in accordance with
section three-a, article five-a of this chapter, a functioning
motor vehicle test and lock system, as that term is defined in
subsection (a), section three-a, article five-a of this chapter, in
any vehicle owned or operated by the person during the term of his
or her probation. However, a court may not authorize the operation
of a motor vehicle by any person whose license or privilege to
operate a motor vehicle has been revoked pursuant to the provisions
of article five-a of this chapter until: (1) The person's minimum
revocation period as specified by subsection (c), section three-a,
article five-a of this chapter
has expired; and (2) other than
expiration of the minimum period of license revocation in article
five-a of this chapter, the person has met all other eligibility
requirements for participation in the Motor Vehicle Test and Lock
Program under section three-a, article five-a of this chapter that
the court deems necessary. The term of participation in the
program may run concurrently with any term of participation imposed
under article five-a of this chapter. This subsection does not
authorize a court to sentence a person to a period of probation for
the purpose of sentencing that person to participation in the
program, under section three-a, article five-a of this chapter,
unless that person would have otherwise been eligible for a sentence of probation.
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) (1) 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 or have been convicted
under section two, article five of this chapter.
(2) The 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:
Provided, That on and after July 1, 2007, any unexpended balance
remaining in the Driver's Rehabilitation Fund shall be transferred
to the Motor Vehicle Fees Fund created under the provisions of
section twenty-one, article two, chapter seventeen-a of this code
and all further fees collected shall be deposited in that fund.
(3) 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. The 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.
(4) 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, the person is determined to be under the
influence of alcohol.
(5) The commissioner shall establish by legislative rule,
proposed pursuant to article three, chapter twenty-nine-a of this
code, criteria to determine the eligibility for the payment of the
installation of ignition interlock devices in the vehicles of
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment of installations for eligible offenders.
(6) On or before January 15 of each year the commissioner of the Division of Motor Vehicles shall must report to the Legislature
on:
(A) The total number of offenders participating in the program
during the prior year;
(B) The total number of indigent offenders participating in
the program during the prior year;
(C) The terms of any contracts with the providers of ignition
interlock devices ; and
(D) The total cost of the program to the state during the
prior year.
(b)(1) Any person whose license is revoked for the first time
pursuant to this article or the provisions of article five of this
chapter is eligible to participate in the program when the person's
minimum revocation period as specified by subsection (c) of this
section has expired and the 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 anyone whose license
is revoked for the first time pursuant to subsection (k), section
two of this article must participate in the program when the
person's minimum revocation period as specified by subsection (c)
of this section has expired and the 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.
Notwithstanding any provision of
this subsection to the contrary, other than completion of the
minimum license revocation period
, a sentencing court is to
establish the eligibility requirements for participation in the
program for all persons sentenced to program participation pursuant
to section two, article five of this chapter.
(2) Any person whose license has been suspended pursuant to
the provisions of subsection (n), 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 eight 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 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
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 comply with the following conditions:
(A) If not already enrolled, the person shall enroll in and
complete the educational program provided in subsection (d), 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 shall 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, a person eligible to participate in the program under
this subsection may not operate a motor vehicle unless approved to
do so by the commissioner.
(c) A person who participates in the program under subdivision
(1), subsection (b) of this section is subject to a minimum
revocation period and minimum period for the use of the ignition
interlock device 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 subsection
(d) or (g), section two, article five of this chapter or pursuant
to subsection (j), section two of this article, the minimum period
of revocation for participation in the test and lock program is
fifteen days and the minimum period for the use of the ignition
interlock device is one hundred and twenty-five days;
(2) For a person whose license has been revoked for a first
offense pursuant to section seven, article five of this chapter, the minimum period of revocation for participation in the test and
lock program is forty-five days and the minimum period for the use
of the ignition interlock device is one year;
(3) For a person whose license has been revoked for a first
offense pursuant to section one-a of this article for conviction of
an offense defined in subsection (e), section two, article five of
this chapter or pursuant to subsection (j), section two of this
article, the minimum period of revocation for participation in the
test and lock program is forty-five days and the minimum period for
the use of the ignition interlock device is two hundred seventy
days;
(4) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (a), section
two, article five of this chapter or pursuant to subsection (f),
section two of this article, the minimum period of revocation
before the person is eligible for participation in the test and
lock program is twelve months and the minimum period for the use of
the ignition interlock device is two years;
(5) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (b), section
two, article five of this chapter or pursuant to subsection (g),
section two of this article, the minimum period of revocation is
six months and the minimum period for the use of the ignition interlock device is two years;
(6) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (c), section
two, article five of this chapter or pursuant to subsection (h),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is one year;
(7) For a person whose license has been revoked for a first
offense pursuant to the provisions of section one-a of this article
for conviction of an offense defined in subsection (j), section
two, article five of this chapter or pursuant to subsection (m),
section two of this article, the minimum period of revocation for
participation in the program is two months and the minimum period
for the use of the ignition interlock device is ten months;
(d) Notwithstanding any provision of the code to the contrary,
a person shall participate in the program if the person is
convicted under section two, article five of this chapter or the
person's license is revoked under section two of this article or
section seven, article five of this chapter and the person was
previously either convicted or his or her license was revoked under
any provision cited in this subsection within the past ten years.
The minimum revocation period for a person required to participate
in the program under this subsection is one year and the minimum
period for the use of the ignition interlock device is two years, except that the minimum revocation period for a person required to
participate because of a violation of subsection (n), section two
of this article or subsection (i), section two, article five of
this chapter is two months and the minimum period of participation
is one year. The division shall add an additional two months to
the minimum period for the use of the ignition interlock device if
the offense was committed while a minor was in the vehicle. The
division shall add an additional six months to the minimum period
for the use of the ignition interlock device if a person other than
the driver received injuries. The division shall add an additional
two years to the minimum period for the use of the ignition
interlock device if a person other than the driver is injured and
the injuries result in that person's death. The division shall add
one year to the minimum period for the use of the ignition
interlock device for each additional previous conviction or
revocation within the past ten years. Any person required to
participate under this subsection must have an ignition interlock
device installed on every vehicle he or she owns or operates.
(e) Notwithstanding any other provision in this code, a person
whose license is revoked for driving under the influence of drugs
is not eligible to participate in the Motor Vehicle Alcohol Test
and Lock Program.
(f) An applicant for the test and lock program may 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 six-month
period preceding the date of application for admission to the test
and lock program unless such is necessary for employment purposes.
(g) Upon permitting an eligible person to participate in the
program, the commissioner shall issue to the person, and the person
is required to exhibit on demand, a driver's license which shall
reflect that the person is restricted to the operation of a motor
vehicle which is equipped with an approved motor vehicle alcohol
test and lock system.
(h) The commissioner may extend the minimum period of
revocation and the minimum period of participation in the program
for a person who violates the terms and conditions of participation
in the program as found in this section, or legislative rule, or
any agreement or contract between the participant and the division
or program service provider.
(i) A person whose license has been suspended pursuant to the
provisions of subsection (n), section two of this article who has
completed the educational program and who has not violated the
terms required by the commissioner of the person's participation in
the program is 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 is entitled to expungement under the provisions of this
subsection only once. The expungement shall be accomplished by
physically marking the records to show that the records have been
expunged and by securely sealing and filing the records.
Expungement has the legal effect as if the suspension never
occurred. The records may 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 the
information does not divulge the identity of the person.
(j) 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 that 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 jail for a period not less than one month nor more than
six months and fined not less than $100 nor more than $500. Any
person who attempts to bypass the alcohol test and lock system is
guilty of a misdemeanor and, upon conviction thereof, shall be
confined in jail not more than six months and fined not less than
$100 nor more than $1,000: 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 the operation is a
condition of his or her employment. For the purpose of this
section, job site does not include any street or highway open to
the use of the public for purposes of vehicular traffic.
NOTE: The purpose of this bill is to require persons convicted
of driving under the influence of alcohol and who are on probation,
paroled or on other conditional release for that offense to
participate in the Motor Vehicle Test and Lock Program. The bill
establishes conditions for participation in the program. The bill
also provides a sentencing court with the authority to set
eligibility requirements for participation in the program.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.