ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 535
(Senators Foster, Jenkins, Kessler, Green,
Hunter, Wells, Hall, McKenzie and White, original sponsors)
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[Passed March 8, 2008; in effect ninety days from passage.]
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AN ACT to amend and reenact §17B-4-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §17C-5-2 and §17C-5-7
of said code; and to amend and reenact §17C-5A-1, §17C-5A-2,
§17C-5A-3 and §17C-5A-3a of said code, all relating to
modifications to administrative and criminal penalties for
driving a motor vehicle under the influence of alcohol and/or
drugs; reducing the criminal and administrative sanctions for
driving a vehicle with a lawfully suspended or revoked
license; providing for concurrent sentences for driving a
vehicle with a lawfully suspended or revoked license; removing
the mandatory 24-hour incarceration for first offense driving
under the influence; creating an aggravated offense of driving with a blood alcohol concentration of fifteen hundredths of
one percent or more, by weight; permitting participation in
the Motor Vehicle Alcohol Test and Lock Program for first
offense driving under the influence; process for rejecting or
modifying hearing examiner's proposed findings; law-
enforcement officers excused from hearings unless presence is
requested by party whose license is at issue; adoption of law-
enforcement affidavit if officer does not attend hearing;
mandating participation in the Motor Vehicle Alcohol Test and
Lock Program for first offense driving under the influence;
providing enhanced administrative sanctions for persons
operating a motor vehicle with a blood alcohol concentration
of fifteen hundredths of one percent or more, by weight;
making certain technical changes to administrative procedures;
transferring primary authority of the Safety and Treatment
Program to the Department of Health and Human Resources;
providing for removal of the Driver's Rehabilitation Fund from
the jurisdiction of the Division of Motor Vehicles and placing
it under the jurisdiction of the Secretary of the Department
of Health and Human Resources; requiring Department of Health
and Human Resources to propose legislative rules; providing
that a person whose driver's license is revoked for refusing
to take a secondary chemical test is not eligible to reduce
the revocation period by completing the Safety and Treatment Program; removing requirement that victim impact panels be
implemented pursuant to legislative rules; requiring the
Commissioner of the Division of Motor Vehicles to propose
legislative rules; reducing the minimum period of revocation
for participation in the test and lock program; increasing
minimum periods of participation in the ignition interlock
device for aggravating offenses; and denying participation in
the Motor Vehicle Alcohol Test and Lock Program for person
whose driver's license is revoked for driving under the
influence of drugs.
Be it enacted by the Legislature of West Virginia:
That §17B-4-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §17C-5-2 and §17C-5-7 of said code
be amended and reenacted; and that §17C-5A-1, §17C-5A-2, §17C-5A-3
and §17C-5A-3a of said code be amended and reenacted, all to read
as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 4. VIOLATION OF LICENSE PROVISIONS.
§17B-4-3. Driving while license suspended or revoked; driving
while license revoked for driving under the
influence of alcohol, controlled substances or
drugs, or while having alcoholic concentration in
the blood of eight hundredths of one percent or
more, by weight, or for refusing to take secondary chemical test of blood alcohol contents.
(a) Except as otherwise provided in subsection (b) or (d) of
this section, any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully suspended or revoked by this state or any other
jurisdiction is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars; for the second
offense, the person is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than one hundred dollars nor more
than five hundred dollars; for the third or any subsequent offense,
the person is guilty of a misdemeanor and, upon conviction thereof,
shall be confined in jail for a period of not less than thirty days
nor more than ninety days and shall be fined not less than one
hundred fifty dollars nor more than five hundred dollars.
(b) Any person who drives a motor vehicle on any public
highway of this state at a time when his or her privilege to do so
has been lawfully revoked for driving under the influence of
alcohol, controlled substances or other drugs, or any combination
thereof, or for driving while having an alcoholic concentration in
his or her blood of eight hundredths of one percent or more, by
weight, or for refusing to take a secondary chemical test of blood
alcohol content, is, for the first offense, guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail for a period of not less than thirty days nor more than six months and
shall be fined not less than one hundred dollars nor more than five
hundred dollars; for the second offense, the person is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for a period of not less than six months nor more than one year and
shall be fined not less than one thousand dollars nor more than
three thousand dollars; for the third or any subsequent offense,
the person is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility for not less
than one year nor more than three years and, in addition to the
mandatory prison sentence, shall be fined not less than three
thousand dollars nor more than five thousand dollars.
(c) Upon receiving a record of the first or subsequent
conviction of any person under subsection (b) of this section upon
a charge of driving a vehicle while the license of that person was
lawfully suspended or revoked, the division shall extend the period
of the suspension or revocation for an additional period of six
months which may be served concurrently with any other suspension
or revocation. Upon receiving a record of the second or subsequent
conviction of any person under subsection (a) of this section upon
a charge of driving a vehicle while the license of that person was
lawfully suspended or revoked, the division shall extend the period
of the suspension or revocation for an additional period of ninety
days which may be served concurrently with any other suspension or revocation. (d) Any person who drives a motor vehicle on any
public highway of this state at a time when his or her privilege to
do so has been lawfully suspended for driving 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 guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail
for twenty-four hours or shall be fined not less than fifty dollars
nor more than five hundred dollars, or both.
Upon receiving a record of a first or subsequent conviction
under this subsection for a charge of driving a vehicle while the
license of that person was lawfully suspended or revoked, the
division shall extend the period of the suspension or revocation
for an additional period of six months which may be served
concurrently with any other suspension or revocation.
(e) An order for home detention by the court pursuant to the
provisions of article eleven-b, chapter sixty-two of this code may
be used as an alternative sentence to any period of incarceration
required by this section.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
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 one
thousand dollars nor more than three thousand dollars.
(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 five hundred dollars nor more than one thousand
dollars.
(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 two hundred dollars nor more than one thousand
dollars.
(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 one hundred dollars nor more than five hundred
dollars. 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 two hundred dollars nor
more than one thousand dollars. 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.
(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 one
hundred dollars nor more than five hundred dollars. 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.
(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 one hundred dollars nor more than five hundred
dollars.
(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
one hundred dollars nor more than five hundred dollars.
(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 twenty-five dollars nor more than one hundred dollars. 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 one hundred dollars nor more than five hundred dollars. 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 two hundred dollars nor more
than one thousand dollars.
(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 one thousand dollars nor more than three
thousand dollars.
(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 three thousand dollars nor more than five thousand dollars.
(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.
§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 has
previously 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, 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 has
previously 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 the tenth day of
June, one thousand nine hundred eighty-three; 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 the tenth day of June, one thousand nine hundred eighty-
three.
(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-1. Implied consent to administrative procedure;
revocation for driving under the influence of
alcohol, controlled substances or drugs or refusal to submit to secondary chemical test.
(a) Any person who is licensed to operate a motor vehicle in
this state and who drives a motor vehicle in this state shall be
deemed to have given his or her consent by the operation thereof,
subject to the provisions of this article, to the procedure set
forth in this article for the determination of whether his or her
license to operate a motor vehicle in this state should be revoked
because he or she did drive a motor vehicle while under the
influence of alcohol, controlled substances or drugs, or 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 refuse to submit to any secondary chemical test required
under the provisions of article five of this chapter 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.
(b) Any law-enforcement officer investigating a person 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 report
to the Commissioner of the Division of Motor Vehicles by written
statement within forty-eight hours of the conclusion of the investigation the name and address of the person believed to have
committed the offense. The report shall include the specific
offense with which the person is charged and, if applicable, a copy
of the results of any secondary tests of blood, breath or urine.
The signing of the statement required to be signed by this
subsection 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.
(c) If, upon examination of the written statement of the
officer and the tests results described in subsection (b) of this
section, the commissioner determines that a person committed an
offense described in section two, article five of this chapter or
an offense described in a municipal ordinance which has the same
elements as an offense described in said section and that the
results of any secondary test or tests indicate that at the time
the test or tests were administered the person had, in his or her
blood, an alcohol concentration of eight hundredths of one percent
or more, by weight, or at the time the person committed the offense
he or she was under the influence of alcohol, controlled substances
or drugs, the commissioner shall make and enter an order revoking or suspending the person's license to operate a motor vehicle in
this state. If the results of the tests indicate that at the time
the test or tests were administered the person was under the age of
twenty-one years and had 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. A copy of the order shall
be forwarded to the person by registered or certified mail, return
receipt requested, and shall contain the reasons for the revocation
or suspension and describe the applicable revocation or suspension
periods provided in section two of this article. A revocation or
suspension shall not become effective until ten days after receipt
of a copy of the order.
(d) Any law-enforcement officer taking a child into custody
under the provisions of section six-a, article five of this chapter
who has reasonable cause to believe that the child, at the time of
driving the motor vehicle, had an alcohol concentration in his or
her blood of two hundredths of one percent or more, by weight, or
that the act of the child in driving the motor vehicle was such
that it would provide grounds for arrest for an offense defined
under the provisions of section two of said article if the child
were an adult, shall report to the Commissioner of the Division of
Motor Vehicles by written statement within forty-eight hours the name and address of the child.
(e) If applicable, the report shall include a description of
the specific offense with which the child could have been charged
if the child were an adult and a copy of the results of any
secondary tests of blood, breath or urine. The signing of the
statement required to be signed by this subsection 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.
(f) Upon examination of the written statement of the officer
and any test results described in subsection (d) of this section,
if the commissioner determines that the results of the test
indicate that at the time the test or tests were administered the
child had, in his or her blood, an alcohol concentration of two
hundredths of one percent or more, by weight, but also determines
that the act of the child in driving the motor vehicle was not such
that it would provide grounds for arrest for an offense defined
under the provisions of subsection (a), (b), (c), (d), (e), (f),
(g) or (h), section two, article five of this chapter if the child
were an adult, the commissioner shall make and enter an order
suspending the child's license to operate a motor vehicle in this state. If the commissioner determines that the act of the child in
driving the motor vehicle was such that it would provide grounds
for arrest for an offense defined under the provisions of
subsection (a), (b), (c), (d), (e), (f), (g) or (h), section two,
article five of this chapter if the child were an adult, the
commissioner shall make and enter an order revoking the child's
license to operate a motor vehicle in this state. A copy of the
order shall be forwarded to the child by registered or certified
mail, return receipt requested, and shall contain the reasons for
the suspension or revocation and describe the applicable suspension
or revocation periods provided for in section two of this article.
A suspension or revocation shall not become effective until ten
days after receipt of a copy of the order.
§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
under the provisions of section one of this article or section
seven, article five of this chapter, the Commissioner of the
Division of Motor Vehicles shall stay the imposition of the period
of revocation or suspension and afford the person an opportunity to
be heard. The written request must be filed with the commissioner
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 who shall rule on evidentiary
issues and 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
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 received the timely
written request for a hearing unless there is a postponement or
continuance. The commissioner may postpone or continue any hearing
on the commissioner's own motion or upon application for each
person for good cause shown. The commissioner shall adopt and
implement by a procedural rule written policies governing the postponement or continuance of any hearing on the commissioner's
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 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. The hearing
request form shall clearly and concisely inform a person seeking a
hearing 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. 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 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 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 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 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 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 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 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
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)
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 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 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 shall revoke the person's license
for a period of ten years:
Provided, That if the commissioner has
previously 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 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 has previously 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 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 has previously 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 has previously 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 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 has previously 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 has previously 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 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 has previously 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 has previously
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 has previously 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 has
previously 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 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 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 has previously 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 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 further finds that the
alcohol concentration in the blood was a contributing cause to the
bodily injury, the commissioner shall revoke the person's license
for a period of two years:
Provided, That if the commissioner has previously 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 has previously 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 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 has previously 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 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 has previously 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 has previously 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
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 committed an offense relating to driving a motor vehicle
in this state while under the influence of alcohol, controlled
substances or drugs; (3) 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) 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 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) 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) the person refused to submit to
the secondary chemical test finally designated; and (4) 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 a period of at least forty-five days and up to life if
the person refused to submit to the test finally designated, the
commissioner shall revoke the person's license to operate a motor
vehicle in this state for the periods specified in section seven,
article five of this chapter. 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 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
order made and entered following the hearing shall be served upon
the person 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 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 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 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.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall propose a legislative rule or
rules for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code establishing a comprehensive safety and
treatment program for persons whose licenses have been revoked
under the provisions of this article or section seven, article five
of this chapter or subsection (6), section five, article three,
chapter seventeen-b of this code and shall also establish the
minimum qualifications for mental health facilities or other public
agencies or private entities conducting the safety and treatment
program:
Provided, That the Department of Health and Human
Resources, Division of Alcoholism and Drug Abuse may establish
standards whereby the division will accept or approve participation
by violators in another treatment program which provides the same
or substantially similar benefits as the safety and treatment
program established pursuant to this section.
(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological
counseling, educational courses on the dangers of alcohol and drugs
as they relate to driving, defensive driving or other safety
driving instruction and other programs designed to properly
educate, train and rehabilitate the offender.
(c) (1) The Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse, shall provide for the preparation of
an educational and treatment program for each person whose license
has been revoked under the provisions of this article or section
seven, article five of this chapter or subsection (6), section
five, article three, chapter seventeen-b of this code which shall
contain the following: (A) A listing and evaluation of the
offender's prior traffic record; (B) The characteristics and
history of alcohol or drug use, if any; (C) His or her amenability
to rehabilitation through the alcohol safety program; and (D) a
recommendation as to treatment or rehabilitation and the terms and
conditions of the treatment or rehabilitation. The program shall
be prepared by persons knowledgeable in the diagnosis of alcohol or
drug abuse and treatment.
(2) The Department of Health and Human Resources shall
establish a fee by legislative rule proposed pursuant to article
three, chapter twenty-nine-a of this code to be collected from each
offender enrolled in the safety and treatment program. The program
provider shall collect the established fee from each participant upon enrollment unless the department has determined that the
participant is an indigent based upon criteria established pursuant
to subdivision (3) of this subsection. The Department of Health
and Human Resources shall reimburse enrollment fees to program
providers for each eligible indigent offender.
(3) The Department of Health and Human Resources 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 safety and treatment services for
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 for safety and training services for eligible
offenders.
(4) On or before the fifteenth day of January, of each year,
the Secretary of the Department of Health and Human Resources shall
report to the Legislature on:
(A) The total number of offenders participating in the safety
and treatment program during the prior year;
(B) The total number of indigent offenders participating in
the safety and treatment program during the prior year;
(C) The total number of program providers during the prior
year; and
(D) The total amount of reimbursements paid to program
provider during the prior year.
(5) The commissioner after giving due consideration to the
program developed for the offender, shall prescribe the necessary
terms and conditions for the reissuance of the license to operate
a motor vehicle in this state revoked under this article or section
seven, article five of this chapter or subsection (6), section
five, article three, chapter seventeen-b of this code which shall
include successful completion of the educational, treatment or
rehabilitation program, subject to the following:
(A) When the period of revocation is six months, the license
to operate a motor vehicle in this state shall not be reissued
until: (i) At least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) the offender has successfully completed the
program; (iii) all costs of the program and administration have
been paid; and (iv) all costs assessed as a result of a revocation
hearing have been paid;
(B) When the period of revocation is for a period of one year
or for more than a year, the license to operate a motor vehicle in
this state shall not be reissued until: (i) At least one half of
the time period has elapsed from the date of the initial
revocation, during which time the revocation was actually in
effect; (ii) The offender has successfully completed the program; (iii) All costs of the program and administration have been paid;
and (iv) All costs assessed as a result of a revocation hearing
have been paid. Notwithstanding any provision in this code, a
person whose license is revoked for refusing to take a chemical
test as required by section seven, article five of this chapter for
a first offense is not eligible to reduce the revocation period by
completing the safety and treatment program.
(C) When the period of revocation is for life, the license to
operate a motor vehicle in this state shall not be reissued until:
(i) At least ten years have elapsed from the date of the initial
revocation, during which time the revocation was actually in
effect; (ii) the offender has successfully completed the program;
(iii) all costs of the program and administration have been paid;
and (iv) all costs assessed as a result of a revocation hearing
have been paid.
(D) Notwithstanding any provision of this code or any rule,
any mental health facilities or other public agencies or private
entities conducting the safety and treatment program when
certifying that a person has successfully completed a safety and
treatment program shall only have to certify that the person has
successfully completed the program.
(d) (1) The Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse, shall provide for the preparation of
an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of subsection
(n), section two, article five-a of this chapter. The educational
program shall consist of not less than twelve nor more than
eighteen hours of actual classroom time.
(2) When a sixty-day period of suspension has been ordered,
the license to operate a motor vehicle shall not be reinstated
until: (A) At least sixty days have elapsed from the date of the
initial suspension, during which time the suspension was actually
in effect; (B) the offender has successfully completed the
educational program; (C) all costs of the program and
administration have been paid; and (D) all costs assessed as a
result of a suspension hearing have been paid.
(e) A required component of the rehabilitation program
provided in subsection (b) of this section and the education
program provided for in subsection (c) of this section shall be
participation by the violator with a victim impact panel program
providing a forum for victims of alcohol and drug-related offenses
and offenders to share first-hand experiences on the impact of
alcohol- and drug-related offenses in their lives. The Department
of Health and Human Resources, Division of Alcoholism and Drug
Abuse, shall propose and implement a plan for victim impact panels
where appropriate numbers of victims are available and willing to
participate and shall establish guidelines for other innovative
programs which may be substituted where the victims are not available to assist persons whose licenses have been suspended or
revoked for alcohol and drug-related offenses to gain a full
understanding of the severity of their offenses in terms of the
impact of the offenses on victims and offenders. The plan shall
require, at a minimum, discussion and consideration of the
following:
(A) Economic losses suffered by victims or offenders;
(B) Death or physical injuries suffered by victims or
offenders;
(C) Psychological injuries suffered by victims or offenders;
(D) Changes in the personal welfare or familial relationships
of victims or offenders; and
(E) Other information relating to the impact of alcohol and
drug-related offenses upon victims or offenders.
The Department of Health and Human Resources, Division of
Alcoholism and Drug Abuse, shall ensure that any meetings between
victims and offenders shall be nonconfrontational and ensure the
physical safety of the persons involved.
§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 the first day of July, two thousand
seven, 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 the fifteenth day of January, of each year,
the commissioner of the division of motor vehicles shall 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.
(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 one hundred dollars nor more
than five hundred dollars. 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 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 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.