ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 447
(By Senators Kessler and McKenzie)
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[Originating in the Committee on the Judiciary;
reported February 25, 2004.]
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A BILL to amend and reenact §8-10-2b of the code of West
Virginia, 1931, as amended; and to amend and reenact §17B-3-
3c and §17B-3-9 of said code, all relating to the powers and
duties of municipal courts; failure to appear for municipal
court hearings; failure to pay municipal court fines and
fees; cancellation, suspension and revocation of driver's
licenses; payment of fines and fees from state income tax
refund; allocation of income tax refund; and suspension of
license to continue until fees, fines and reinstatement fee
paid.
Be it enacted by the Legislature of West Virginia:
That §8-10-2b of the code of West Virginia, 1931, as
amended, be amended and reenacted; and that §17B-3-3c and §17B-3-
9 of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and
costs or failure to appear in court.
(a) If costs, fines, forfeitures or penalties imposed by the
municipal court upon conviction of a person for a criminal
offense as defined in section three-c, article three, chapter
seventeen-b of this code are not paid in full within one hundred
eighty days of the judgment, the municipal court clerk or, upon a
judgment rendered on appeal, the circuit clerk shall notify the
division of motor vehicles of
such the failure to pay:
Provided,
That at the time the judgment is imposed, the judge shall provide
the person with written notice that failure to pay the same as
ordered
may result in the withholding of any income tax refund
due the licensee and shall result in the suspension of
such the
person's license or privilege to operate a motor vehicle in this
state and that
such the suspension could result in the
cancellation of, the failure to renew or the failure to issue an
automobile insurance policy providing coverage for
such the
person or
such the person's family:
Provided, however, That the
failure of the judge to provide
such notice
shall does not affect
the validity of any suspension of
such the person's license or
privilege to operate a motor vehicle in this state. For purposes
of this section, payment shall be stayed during any period an appeal from the conviction which resulted in the imposition of
such costs, fines, forfeitures or penalties is pending.
Upon
such notice, the division of motor vehicles shall
suspend the person's driver's license or privilege to operate a
motor vehicle in this state until such time that the costs,
fines, forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the
contrary, the notice of the failure to pay
such costs, fines,
forfeitures or penalties
shall may not be given where the
municipal court, upon application of the person upon whom the
same costs, fines, forfeitures or penalties were imposed filed
prior to the expiration of the period within which
the same these
are required to be paid, enters an order finding that
such the
person is financially unable to pay all or a portion of the
same
costs, fines, forfeitures or penalties: Provided, That where the
municipal court, upon finding that the person is financially
unable to pay a portion
thereof of the costs, fines, forfeitures
or penalties, requires the person to pay the remaining portion,
thereof the municipal court shall notify the division of motor
vehicles of
such the person's failure to pay
the same if the same
is if not paid within the period of time ordered by
such the
court.
(c) If a person charged with a criminal offense fails to
appear or otherwise respond in court, the municipal court
clerk shall notify the division of motor vehicles
thereof within
fifteen days of the scheduled date to appear unless
such the
person sooner appears or otherwise responds in court to the
satisfaction of the judge. Upon
such notice, the division of
motor vehicles shall suspend the person's driver's license or
privilege to operate a motor vehicle in this state until such
time that the person appears as required.
(d) If the person fails to comply within ninety days from
the date the municipal court sends notice to the division of
motor vehicles as provided in subsection (a) or (c) of this
section, the municipal court clerk shall notify the secretary of
the department of tax and revenue that the person has failed to
pay the fines assessed by the court or has failed to respond to
the citation. The secretary of tax and revenue, or his or her
designee, shall withhold from any income tax return the fees or
fines due to the municipality and any and all fees that the
municipal court would have collected had the licensee appeared.
After the fees and fines are withheld, the secretary of tax and
revenue shall refund any remaining balance due the person. If
the refund is not sufficient to cover all the fees and fines
being withheld pursuant to this section, the secretary shall
allocate the money in the following manner: (1) Any fees or
fines due to the municipality; (2) the administrative fee
assessed by the secretary of tax and revenue: Provided, That the fee may not exceed twenty-five dollars; (3) seventy-five percent
of the remaining balance shall be paid to the appropriate
regional jail authority fund; (4) fifteen percent of the
remaining balance shall be paid to the crime victims compensation
fund; (5) six percent of the remaining balance shall be paid into
the community corrections fund; and (6) the final four percent
shall be paid to the governor's subcommittee on law-enforcement
training. When the fees and fines exceed the person's income tax
refund, the secretary of tax and revenue shall withhold the
remaining balance in subsequent years until the fees and fines
owed the remaining funds are paid in full. The secretary of tax
and revenue shall remit the moneys that he or she collects to the
appropriate municipality, the regional jail and correctional
facility authority fund, the crime victims compensation fund, the
West Virginia community corrections fund and the governor's
subcommittee on law-enforcement training no later than the first
day of July of each calendar year.
(e) On or before the first day of July, two thousand five,
the municipal court may elect to reissue notice as provided in
subsections (a) and (c) of this section to the division of motor
vehicles for persons who remain noncompliant: Provided, That the
person was convicted or failed to appear on or after the first
day of January, one thousand nine hundred ninety-three. If the
original notification cannot be located, the division of motor vehicles shall accept an additional or duplicate notice from the
municipal court clerk.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§17B-3-3c. Suspending license for failure to pay fines or
penalties imposed as the result of criminal conviction or
for failure to appear in court.
(a) The division shall suspend the license of any resident
of this state or the privilege of a nonresident to drive a motor
vehicle in this state upon receiving notice from a circuit court,
magistrate court or municipal court of this state, pursuant to
section two-b, article three, chapter fifty of this code or
section two-b, article ten, chapter eight of said code or section
seventeen, article four, chapter sixty-two of said code, that
such person has defaulted on the payment of costs, fines,
forfeitures, penalties or restitution imposed on the person by
the circuit court, magistrate court or municipal court upon
conviction for any criminal offense by the date such court had
required such person to pay the same, or that such person has
failed to appear in court when charged with such an offense. For
the purposes of this section; section two-b, article three,
chapter fifty of said code; section two-b, article ten, chapter
eight of said code; and section seventeen, article four, chapter
sixty-two of said code, "criminal offense" shall be defined as any violation of the provisions of this code, or the violation of
any municipal ordinance, for which the violation thereof may
result in a fine, confinement in jail or imprisonment in the
penitentiary of this state:
Provided, That any parking violation
or other violation for which a citation may be issued to an
unattended vehicle shall not be considered a criminal offense for
the purposes of this section; section two-b, article ten, chapter
eight of said code; section two-b, article three, chapter fifty
of said code; or section seventeen, article four, chapter
sixty-two of said code.
(b) A copy of the order of suspension shall be forwarded to
such person by certified mail, return receipt requested. No order
of suspension becomes effective until ten days after receipt of a
copy of such order. The order of suspension shall advise the
person that because of the receipt of notice of the failure to
pay costs, fines, forfeitures or penalties, or the failure to
appear, a presumption exists that the person named in the order
of suspension is the same person named in the notice. The
commissioner may grant an administrative hearing which
substantially complies with the requirements of the provisions of
section two, article five-a, chapter seventeen-c of this code
upon a preliminary showing that a possibility exists that the
person named in the notice of conviction is not the same person
whose license is being suspended. Such request for hearing shall be made within ten days after receipt of a copy of the order of
suspension. The sole purpose of this hearing shall be for the
person requesting the hearing to present evidence that he or she
is not the person named in the notice. In the event the
commissioner grants an administrative hearing, the commissioner
shall stay the license suspension pending the commissioner's
order resulting from the hearing.
(c) A suspension under this section and section three-a of
this chapter will continue until the person provides proof of
compliance from the municipal, magistrate or circuit court and
pays the reinstatement fee as provided in section nine of this
article. The reinstatement fee is assessed upon issuance of the
order of suspension regardless of the effective date of
suspension.
§17B-3-9. Surrender and return of license not required.
The division, upon suspending or revoking a license,
shall
may not require that the license be surrendered to and be
retained by the division. The surrender of a license
shall may
not be a precondition to the commencement and tolling of any
applicable period of suspension or revocation:
Provided, That
before the license may be reinstated, the licensee shall pay a
fee of
fifteen fifty dollars, in addition to all other fees and
charges, which shall be collected by the division and deposited
in a special revolving fund to be appropriated to the division for use in the enforcement of the provisions of this section
:
Provided, however, That when any license is suspended for failure
to maintain motor vehicle liability insurance the reinstatement
fee is fifty dollars.