Bill Text: WV HB2306 | 2018 | Regular Session | Introduced
Bill Title: Establishing new procedures for courts with criminal jurisdiction to suspend and revoke driver’s licenses based on D.U.I.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-01-10 - To House Roads and Transportation [HB2306 Detail]
Download: West_Virginia-2018-HB2306-Introduced.html
WEST virginia Legislature
2017 regular session
By
to the Committee on Roads and Transportation then the Judiciary]
A BILL to amend and
reenact §17C-5-4 and §17C-5-7 of the Code of West Virginia, 1931, as amended;
to amend and reenact §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3 and §17C-5A-3a
of said code; and to amend said code by adding thereto a new section,
designated §17C-5C-6, all relating to the procedures for driver’s license
suspension and revocation in criminal proceedings for driving under the
influence of alcohol, controlled substances or drugs (D.U.I.); eliminating
requirements that the Commissioner of the Division of Motor Vehicles
automatically suspend an individual’s driver’s license after receipt of a
statement from arresting officers that an individual refused a breath or blood
test; requiring that an individual arrested for D.U.I. be given a written
statement informing the individual of the legal consequences of taking or
refusing to take a preliminary breath test and informing the individual of the
right to receive a secondary blood test; requiring that, following an
individual’s refusal to take a preliminary breath test, an arresting officer
execute a signed statement that the officer administered all required warnings;
eliminating all statutory provisions authorizing or requiring the Commissioner
of the Division of Motor Vehicles to take administrative action upon an
individual’s driver’s license on the basis of D.U.I. in the absence of a
conviction or a court-ordered suspension or revocation; eliminating all
statutory provisions authorizing or requiring the commissioner to require an
individual to complete the Motor Vehicle Test and Lock program or other safety
programs; completely eliminating the Division of Motor Vehicle’s administrative
hearing process for suspending and revoking driver’s licenses based on a
D.U.I.; creating a process by which an individual may notify the commissioner
if his or her driver’s license has been incorrectly suspended or revoked based
on mistaken identity of the defendant in a transcript of judgment or
conviction; requiring the commissioner to take corrective action if a driver’s
license is incorrectly suspended or revoked based on mistaken identity;
completely transferring jurisdiction for suspension or revocation of a driver’s
license based on D.U.I. to the court with jurisdiction over the criminal
proceedings; requiring a court to suspend a defendant’s driver’s license until
acquittal or judgment if the defendant submitted to an alcohol concentration
test that revealed a certain level of impairment, committed certain prior
offenses, was involved in an accident causing death or bodily injury, or
refused to submit to a secondary chemical test; allowing a court to suspend a
defendant’s license until acquittal or judgment upon a finding that the
defendant would otherwise pose a risk of harm to others during the pendency of
criminal proceedings; establishing the right to request and receive judicial
review of driver’s license suspension orders pending criminal proceedings;
establishing the scope of review for judicial review of driver’s license
suspension orders; requiring a defendant to surrender his or her driver’s
license upon suspension by the court; requiring the clerk of a court to
transmit a copy of an order suspending or revoking a driver’s license;
establishing procedures and a timeline for the Division of Motor Vehicles to
transfer jurisdiction of driver’s license suspension and revocation to the
courts; and eliminating all statutory provisions authorizing or requiring the commissioner
to prescribe the terms and conditions of driver’s license reissuance following
D.U.I.
Be it enacted by the
Legislature of West Virginia:
That §17C-5-4 and §17C-5-7
of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17C-5A-1a, §17C-5A-2, §17C-5A-2a, §17C-5A-3
and §17C-5A-3a of said code be amended
and reenacted; and that said code be amended by adding thereto a new section,
designated §17C-5C-6, all to read as follows:
ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
§17C-5-4. Implied
consent to test; administration at direction of law-enforcement officer;
designation of type of test; definition of law-enforcement officer.
(a) Any person who drives a motor vehicle in this state is
considered to have given his or her consent by the operation of the motor
vehicle to a preliminary breath analysis and a secondary chemical test of
either his or her blood or breath to determine the alcohol concentration in his
or her blood, or the concentration in the person’s body of a controlled
substance, drug, or any combination thereof.
(b) A preliminary breath analysis may be administered in
accordance with the provisions of section five of this article whenever a law-enforcement
officer has reasonable cause to believe a person has committed an offense
prohibited by section two of this article or by an ordinance of a municipality
of this state which has the same elements as an offense described in section
two of this article.
(c) A secondary test of blood or breath is incidental to a
lawful arrest and is to be administered at the direction of the arresting law-enforcement
officer having probable cause to believe the person has committed an offense prohibited
by section two of this article or by an ordinance of a municipality of this
state which has the same elements as an offense described in section two of
this article.
(d) The law-enforcement
agency that employs the arresting law-enforcement officer shall designate the
secondary tests to be administered: Notwithstanding the provisions of section
seven of this article, the refusal to submit to a blood test only may not
result in the revocation of the arrested persons license to operate a motor
vehicle in this state.
(e) Any
person to whom a preliminary breath test is administered who is arrested shall
be given a written statement advising him or her that his or her refusal to
submit to the secondary chemical test pursuant to subsection (d) of this section
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 of
the following:
(1) That a person’s
refusal to submit to a secondary chemical test pursuant to subsection (d) of
this section will result in the revocation of his or her license to operate a
motor vehicle during the pendency of any criminal charges brought alleging a
violation of section two of this article or an ordinance of a municipality of
this state which has the same elements as an offense described in section two
of this article;
(2) That, if the person
refuses to submit to such tests, the fact of this refusal may be used against
him or her in court as evidence of violating section two of this article;
(3) That, if a test is
taken, the results of the test may be used against him or her in court as
evidence of violating section two of this article or an ordinance of a
municipality of this state which has the same elements as an offense described
in section two of this article; and
(4) That, if the person
first submits to the requested alcohol and/or substance tests, the person has
the right to have a test or tests of his or her blood performed by a person of
his or her choosing within a reasonable time of his or her arrest at the
expense of the person arrested.
(f) Any law-enforcement officer who has been properly
trained in the administration of any secondary chemical test authorized by this
article, including, but not limited to, certification by the Bureau for Public
Health in the operation of any equipment required for the collection and
analysis of a breath sample, may conduct the test at any location in the county
wherein the arrest is made: Provided, That the law-enforcement officer
may conduct the test at the nearest available properly functioning secondary
chemical testing device located outside the county in which the arrest was
made, if: (I) There is no properly functioning secondary chemical testing
device located within the county the arrest was made; or (ii) there is no
magistrate available within the county the arrest was made for the arraignment
of the person arrested. A law-enforcement
officer who is directing that a secondary chemical test be conducted has the
authority to transport the person arrested to where the secondary chemical
testing device is located.
(g) If the arresting
officer lacks proper training in the administration of a secondary chemical
test, then any other law-enforcement officer who has received training in the
administration of the secondary chemical test to be administered may, upon the
request of the arresting law-enforcement officer and in his or her presence,
conduct the secondary test. The results of a test conducted pursuant to this
subsection may be used in evidence to the same extent and in the same manner as
if the test had been conducted by the arresting law-enforcement officer.
(h) Only the person
actually administering or conducting a test conducted pursuant to this article
is competent to testify as to the results and the veracity of the test.
(i) (1) For the purpose of
this article, the term “law-enforcement officer” or “police officer” means: (1)
Any member of the West Virginia State
Police; (2) any sheriff and any deputy sheriff of any county; (3) any member of
a police department in any municipality as defined in section two, article one,
chapter eight of this code; (4) any natural resources police officer of the
Division of Natural Resources; and (5) any special police officer appointed by
the Governor pursuant to the provisions of section forty-one, article three,
chapter sixty-one of this code who has completed the course of instruction at a
law-enforcement training academy as provided for under the provisions of
section nine, article twenty-nine, chapter thirty of this code.
(2) In addition to
standards promulgated by the Governors Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty of
this code, governing the qualification of law-enforcement officers and the
entry-level law-enforcement training curricula, the Governors Committee on
Crime, Delinquency and Correction shall require the satisfactory completion of
a minimum of not less than six hours of training in the recognition of
impairment in drivers who are under the influence of controlled substances or
drugs other than alcohol.
(3) In addition to
standards promulgated by the Governors Committee on Crime, Delinquency and
Correction, pursuant to section three, article twenty-nine, chapter thirty of
this code, establishing standards governing in-service law-enforcement officer
training curricula and in-service supervisory level training curricula, the
Governors Committee on Crime, Delinquency and Correction shall require the
satisfactory completion of a minimum of not less than six hours of training in
the recognition of impairment in drivers who are under the influence of
controlled substances or drugs other than alcohol.
(4) That after December
31, 2014 A law-enforcement officer
who has not satisfactorily completed the minimum number of hours of training in
the recognition of impairment in drivers who are under the influence of
controlled substances or drugs other than alcohol, required by subdivisions (2)
or (3), may no longer require any person to submit to secondary chemical test
of his or her blood for the purposes of determining the concentration in the
person’s body of a controlled substance, drug, or any combination thereof.
(j) A law-enforcement officer who has reasonable cause to
believe that a person has committed an offense prohibited by section
eighteen, article seven, chapter twenty of this code, relating to the operation
of a motorboat, jet ski or other motorized vessel, shall follow the provisions
of this section in administering, or causing to be administered, a preliminary
breath analysis and incidental to a lawful arrest, a secondary chemical test of
the accused person’s blood or breath to determine the alcohol concentration in
his or her blood, or the concentration in the person’s body of a controlled
substance, drug, or any combination thereof.
§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 containing the warnings contained
in subsection (e), section four of this article, and an oral warning 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 during
the pendency of any criminal charge brought pursuant to section two of this
article or an ordinance of a municipality of this state which has the same
elements as an offense described in section two of this article. and
that after After fifteen minutes following the receipt of these
warnings by the person under arrest 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 probable cause 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 containing the warnings contained in subsection (e),
section four of this article, and an oral warning 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 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 during
the pendency of any criminal charge brought pursuant to section two of this
article or an ordinance of a municipality of this state which has the same elements
as an offense described in section two 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 person's license has previously been revoked under the
provisions of this section, the commissioner shall, for the refusal to submit
to the designated secondary chemical test, make and enter an order revoking the
person's license to operate a
motor vehicle in this state for a period of ten years: Provided, however,
That the license may be reissued in five years in accordance with the
provisions of section three, article five-a of this chapter. If the person's license has previously been revoked 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 or breath as provided in section four of this article
and the test may be administered although the person is not informed that his
or her failure to submit to the test will result in the revocation of his or
her license to operate a motor vehicle in this state for the period provided
for in this section. A revocation
under this section shall run concurrently with the period of any suspension or
revocation imposed in accordance with other provisions of this code and growing
out of the same incident which gave rise to the arrest for driving a motor
vehicle while under the influence of alcohol, controlled substances or drugs
and the subsequent refusal to undergo the test finally designated in accordance
with the provisions of section four of this article.
(b) For the purposes of
this section, where reference is made to previous suspensions or revocations
under this section, the following types of suspensions or revocations shall
also be regarded as suspensions or revocations under this section:
(1) Any suspension or revocation on the basis of a conviction
under a municipal ordinance of another state or a statute of the United States
or of any other state of an offense which has the same elements as an offense
described in section two of this article for conduct which occurred on or after
June 10, 1983; and
(2) Any revocation under the provisions of section one or
two, article five-a of this chapter for conduct which occurred on or after June
10, 1983.
(c) A person whose license to operate a motor vehicle in
this state has been revoked shall be afforded an opportunity to be heard, in
accordance with the provisions of section two, article five-a of this chapter.
(d) (b) The refusal to submit to a blood test may
be admissible at the courts discretion in a trial for the offense of driving a
motor vehicle in this state while under the influence of alcohol a controlled
substance or drug or the combination of alcohol and drugs.
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF
LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR
DRUGS.
§17C-5A-1a. Revocation upon conviction for driving under the
influence of alcohol, controlled substances or drugs.
(a) If a person has a term
of conditional probation imposed pursuant to section two-b, article five of
this chapter, or is convicted for an offense defined in section two, article
five of this chapter or for an offense described in a municipal ordinance which
has the same elements as an offense described in said section because the
person did drive a motor vehicle while under the influence of alcohol,
controlled substances or drugs, or the combined influence of alcohol or
controlled substances or drugs, or did drive a motor vehicle while having an
alcohol concentration in his or her blood of eight hundredths of one percent or
more, by weight, or did drive a motor vehicle while under the age of twenty-one
years with an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than eight-hundredths of one percent,
by weight, and if the person does not act to appeal the conviction within the
time periods described in subsection (b) of this section, the person's license
to operate a motor vehicle in this state shall be revoked or suspended in
accordance with the provisions of this section.
(b) The clerk of the court
in which a person has had a term of conditional probation imposed pursuant to
section two-b, article five of this chapter, or is convicted for an offense
described in section two, article five of this chapter or for an offense
described in a municipal ordinance which has the same elements as an offense
described in said section shall forward to the Commissioner of the Division
of Motor Vehicles a transcript of the judgment of conviction. If the
conviction is the judgment of a magistrate court, the magistrate court clerk
shall forward the transcript when the person convicted has not requested an
appeal within twenty days of the sentencing for such conviction. If the term of
conditional probation is the act of a magistrate court, the magistrate court
clerk shall forward the transcript when the order imposing the term of
conditional probation is entered. If the conviction is the judgment of a mayor
or police court judge or municipal court judge, the clerk or recorder shall
forward the transcript when the person convicted has not perfected an appeal
within ten days from and after the date upon which the sentence is imposed. If
the conviction is the judgment of a circuit court, the circuit clerk shall
forward the transcript when the person convicted has not filed a notice of
intent to file a petition for appeal or writ of error within thirty days after
the judgment was entered.
(c) If, upon examination of
the transcript of the judgment of conviction, or imposition of a term of
conditional probation pursuant to section two-b, article five of this chapter,
the Commissioner of the Division of Motor Vehicles determines that the
person was convicted for an offense described in section two, article five of
this chapter or
an ordinance of a municipality of this state which has the same elements as an
offense described in section two of this article, or had a period of conditional probation imposed
pursuant to section two-b, article five of this chapter, or for an offense
described in a municipal ordinance which has the same elements as an offense
described in said section because the person did drive a motor vehicle
while under the influence of alcohol, controlled substances or drugs, or the
combined influence of alcohol or controlled substances or drugs, or did drive a
motor vehicle while having an alcohol concentration in his or her blood of
eight-hundredths of one percent or more, by weight, the commissioner shall make
and enter an order revoking the person's license to operate a motor vehicle in
this state. If the commissioner determines that the person was convicted of
driving a motor vehicle while under the age of twenty-one years with an alcohol
concentration in his or her blood of two hundredths of one percent or more, by
weight, but less than eight hundredths of one percent, by weight, the
commissioner shall make and enter an order suspending the person's license to
operate a motor vehicle in this state. The order shall contain the reasons for
the revocation or suspension and the revocation or suspension periods provided for
in section two of this article. Further, the order shall give the procedures
for requesting a hearing which is to be held in accordance with the provisions
of said section. The person shall be advised in the order that because of the
receipt of a transcript of the judgment of conviction by the commissioner a
presumption exists that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such constitutes
sufficient evidence to support revocation or suspension and that the sole
purpose for the hearing held under this section is for the person requesting
the hearing to present evidence that he or she is not the person named in the
transcript of the judgment of conviction. A copy of the order shall be forwarded to the person by
registered or certified mail, return receipt requested. No revocation or
suspension shall become effective until ten days after receipt of a copy of the
order
(d) The provisions of
this section shall not apply if an order reinstating the operator's license of
the person has been entered by the commissioner prior to the receipt of the
transcript of the judgment of conviction
(d) If a person receives
an order advising him or her that his or her license has been suspended or
revoked following receipt by the commissioner of a transcript of a judgment of
conviction, and the person believes that he or she is not the person named in
the commissioner’s order, the person should notify the commissioner. Upon receipt of this notification, the
commissioner shall immediately review the contents of the judgment of
conviction and the information provided by the person in question and determine
if an error has been made. If such an
error is discovered, the commissioner shall immediately reverse the suspension
or revocation of the person’s license and take steps to correctly identify the
individual against whom the judgment of conviction has been entered, and
immediately suspend his or her license pursuant to subsection (c) of this
section.
(e) For the purposes of
this section, a person is convicted when the person enters a plea of guilty or
is found guilty by a court or jury. A
plea of no contest does not constitute a conviction for purposes of this
section except where the person holds a commercial drivers license or operates
a commercial vehicle.
§17C-5A-2. Pretrial suspension of driver’s license.
(a) The court shall, at
the arraignment or as soon as such relevant information becomes available,
suspend the motor vehicle operator’s license and motorcycle operator’s license
and driving privileges of any person charged with a violation of section two,
article five of this chapter who:
(1) Submitted to an
alcohol concentration test that showed that the person had an alcohol
concentration in his or her blood of fifteen-hundredths of one percent or more;
(2) Has been convicted
of one or more prior offenses as described in subsection (n), section two,
article five of this chapter or has had his or her driver’s license revoked or
suspended on one or more occasions for refusing to take an alcohol
concentration or substance test, in the five-year period immediately preceding
his or her arrest;
(3) Was involved in an
accident that resulted in death, bodily injury or serious bodily injury, as
defined in subsection (a), section two, article five of this chapter, to a
person other than the defendant; or
(4) Refused to submit to
a secondary chemical test as required by section four, article five of this
chapter.
(b) Upon motion by the
prosecutor, the court may, at the arraignment or as soon as such relevant
information becomes available, suspend the motor vehicle operator’s license and
motorcycle operator’s license and driving privileges of any person charged with
a violation of section two, article five of this chapter if the court finds
that allowing the person to maintain his or her license would pose a high risk
of harming others during the pendency of the action.
(c) A person whose license has been suspended pursuant to
this section may file a motion for judicial review of the suspension, and the
court shall conduct the review in accordance with this article within thirty
days after the filing of the motion. The
court shall, at the time of the suspension, advise the defendant of his or her
right to the review.
(d) When the court
orders the suspension of a license pursuant to this section, the defendant
shall immediately surrender the license to the clerk of the court in which the
charges are pending. If the defendant
does not have his or her license, he or she shall produce and surrender the
license as soon as possible thereafter.
Upon notice that the court has ordered the suspension of a person’s
license, the clerk of the court in which the charges are pending shall
forthwith transmit to the commissioner of the Division of Motor Vehicles a copy
of the order suspending the person’s license, along with any license
surrendered by the person, and the commissioner shall promptly update the division’s
records to indicate that the person’s license is suspended.
(e) Licenses suspended
under this section shall remain suspended until a judgment of conviction or
acquittal is entered in the case or until the court enters an order terminating
the suspension, but in no event for a period longer than the maximum license
suspension period applicable to the person under section two, article five of
this chapter.
(f) Any person whose driver’s license has been suspended
pursuant to this section shall be given credit for all pretrial suspension time
against the period of revocation imposed.
§17C-5A-2a. Judicial review of pretrial license suspension
for test refusal.
If a person appeals a pretrial
suspension of his or her license under section two of this article, the scope
of the appeal is limited to determining whether one or more of the following
conditions have not been met:
(a) Whether the
arresting law-enforcement officer had reasonable ground to believe the arrested
person had committed a violation of section two, article five of this chapter;
(b) Whether the law-enforcement
officer requested the arrested person to submit to the chemical test or tests
designated pursuant to section four, article five;
(c) Whether, at the time
the test was requested, the law-enforcement officer administered the required
written and verbal warnings pursuant to section seven, article five of this
chapter; and
(d) Whichever of the
following is applicable:
(1) If the suspension
was imposed for refusal to consent to a chemical test, whether the arrested
person refused to submit to the chemical test or tests requested by the law-enforcement
officer;
(2) If the suspension
was imposed for a person’s failure of a chemical test, whether the chemical
test results indicate that at the time of the alleged offense the arrested
person’s whole blood, blood serum or plasma, breath, or urine contained at
least the concentration of alcohol or delta 9-tetrahydrocannabinol specified in
the provision of section two, article five of this chapter with which the
person is charged; or
(3) If the suspension
was imposed for a person who submitted to a chemical test but whose blood
alcohol content registered below eight one-hundredths of one percent, whether
the individual exhibited specific behavior that demonstrated that the person’s
continued operation of a motor vehicle during the pendency of the criminal
action would pose a high risk of harming others.
§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 administer 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, day report centers, community correction centers 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) The Department of
Health and Human Resources, Division of Alcoholism
and Drug Abuse shall provide for the
preparation of an educational and treatment the 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: (1) A listing and evaluation
of the offender's prior traffic record; (2) the characteristics and history of
alcohol or drug use, if any; (3) his or her amenability to rehabilitation
through the alcohol safety program; and (4) 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.
(d) There is hereby created
a special revenue account within the State Treasury known as the Department of
Health and Human Resources Safety and Treatment Fund. The account shall be
administered by the Secretary of the Department of Health and Human Resources
for the purpose of administering the comprehensive safety and treatment program
established by subsection (a) of this section. The account may be invested, and
all earnings and interest accruing shall be retained in the account. The Auditor shall conduct an audit of the fund at least
every three fiscal years.
Effective July 1, 2010, the
State Treasurer shall make a one-time transfer of $250,000 from the Motor
Vehicle Fees Fund into the Department of Health and Human Resources Safety and
Treatment Fund.
(e) (1) 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 legislative rule
authorized in this section.
(2) If the department
determined that a participant is an indigent based upon criteria established
pursuant to the legislative rule authorized by this section, the department
shall provide the applicant with proof of its determination regarding
indigency, which proof the applicant shall present to the interlock provider as
part of the application process provided in section three-a of this article
and/or the rules promulgated pursuant thereto.
(3) Program providers shall
remit to the Department of Health and Human Resources a portion of the fee
collected, which shall be deposited by the secretary of the Department of
Health and Human Resources into the Department of Health and Human Resources
Safety and Treatment Fund. The Department of Health and Human Resources shall
reimburse enrollment fees to program providers for each eligible indigent
offender.
(f) On or before January 15
of each year, the secretary of the Department of Health and Human Resources
shall report to the Legislature on:
(1) The total number of
offenders participating in the safety and treatment program during the prior
year;
(2) The total number of
indigent offenders participating in the safety and treatment program during the
prior year;
(3) The total number of
program providers during the prior year; and
(4) The total amount of
reimbursements paid to program provider during the prior year.
(g) The Commissioner of
the Division of Motor Vehicles, 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:
(1) When the period of
revocation is six months, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ninety days have elapsed from the date of the
initial revocation, during which time the revocation was actually in effect;(B)
the offender has successfully completed the program; (C) all costs of the
program and administration have been paid; and (D) all costs assessed as a
result of a revocation hearing have been paid.
(2) 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 may not be reissued until: (A) 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; (B) the
offender has successfully completed the program; (C) all costs of the program
and administration have been paid; and (D) 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.
(3) When the period of
revocation is for life, the license to operate a motor vehicle in this state
may not be reissued until: (A) At least ten years have elapsed from the date of the
initial revocation, during which time the revocation was actually in effect;
(B) the offender has successfully completed the program; (C) all costs of the
program and administration have been paid; and (D) all costs assessed as a
result of a revocation hearing have been paid.
(4) 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.
(h) (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
may 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.
(i) (g) A
required component of the treatment 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.
(j)(h) The Secretary of the Department of Health
and Human Resources shall promulgate a rule for legislative approval in
accordance with article three, chapter twenty-nine-a of this code to administer
the provisions of this section and establish a fee to be collected from each
offender enrolled in the safety and treatment program. The rule shall include:
(A) A
reimbursement mechanism to program providers of required fees for the safety
and treatment program for indigent offenders, criteria for determining
eligibility of indigent offenders, and any necessary application forms; and (B)
program standards that encompass provider criteria including minimum
professional training requirements for providers, curriculum approval, minimum
course length requirements and other items that may be necessary to properly
implement the provisions of this section.
(2) The Legislature
finds that an emergency exists and, therefore, the Secretary shall file by July
1, 2010, an emergency rule to implement this section pursuant to the provisions
of section fifteen, article three, chapter twenty-nine-a of this code.
(k) (i) Nothing in this section may be construed
to prohibit day report or community correction programs, authorized pursuant to
article eleven-c, chapter sixty-two of this code, from administering a
comprehensive safety and treatment program pursuant to this section.
§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 who have been convicted under
section two, article five of this chapter for driving under the influence of
alcohol, or who are serving a term of a conditional probation pursuant to
section two-b, article five of this chapter.
(2) The program shall
include the establishment of a users fee for persons participating in the
program which shall be paid in advance and deposited into the Driver's
Rehabilitation Fund: Provided, That on and after July 1, 2007, any
unexpended balance remaining in the Driver's Rehabilitation Fund shall be
transferred to the Motor Vehicle Fees Fund. created under the provisions
of section twenty-one, article two, chapter seventeen-a of this code and all
further fees collected shall be deposited in that fund
(3) (A) Except where specified otherwise, the use of the
term “program” in this section refers to the Motor Vehicle Alcohol Test and Lock Program.
(B) 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.
(C) Nothing in this section
may be construed to prohibit day report or community correction programs authorized
pursuant to article eleven-c, chapter sixty-two of this code, or a home
incarceration program authorized pursuant to article eleven-b, chapter sixty-two
of this code, from being a provider of motor vehicle alcohol test and lock
systems for eligible participants as authorized by this section.
(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 fee for
installation and removal of ignition interlock devices shall be waived for
persons determined to be indigent by the Department of Health and Human
Resources pursuant to section three, article five-a, chapter seventeen-c of
this code. The commissioner shall establish by legislative rule, proposed
pursuant to article three, chapter twenty-nine-a of this code, procedures to be
followed with regard to persons determined by the Department of Health and
Human Resources to be indigent. The rule shall include, but is not limited to,
promulgation of application forms; establishment of procedures for the review
of applications; and the establishment of a mechanism for the payment of
installations for eligible offenders.
(6) On or before January 15
of each year, the Commissioner of the Division of Motor Vehicles shall 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 for driving with a blood alcohol concentration of
fifteen hundredths of one percent or more, by weight, 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 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 for driving under
the influence of alcohol, or a combination of alcohol and any controlled
substance or other drug, or with a blood alcohol concentration of eight
hundredths of one percent, by weight, but less than fifteen hundredths, by
weight, 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 twenty-five days;
(2) For a person whose
license has been revoked for a first offense for refusing a secondary chemical
test, 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 for driving with a blood alcohol
concentration of fifteen hundredths of one percent or more, by weight, 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 for driving under the influence of
alcohol, or a combination of alcohol and any controlled substance or other
drug, or with a blood alcohol concentration of eight hundredths of one percent
or more, by weight, or did drive a motor vehicle while under the age of twenty-one
years with an alcohol concentration in his or her blood of two hundredths of
one percent or more, by weight, but less than eight hundredths of one percent,
by weight, and while driving does any act forbidden by law or fails to perform
any duty imposed by law, which act or failure proximately causes the death of
any person within one year next following the act or failure, and 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, 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 for driving under the influence of
alcohol, or a combination of alcohol and any controlled substance or other
drug, or with a blood alcohol concentration of eight hundredths of one percent
or more, by weight, and 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, 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 for driving under the influence of
alcohol, or a combination of alcohol and any controlled substance or other
drug, or with a blood alcohol concentration of eight hundredths of one percent
or more, by weight, and 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, 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 for driving under the influence of
alcohol, or a combination of alcohol and any controlled substance or other
drug, or with a blood alcohol concentration of eight hundredths of one percent
or more, by weight, and 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, 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 for driving while under
the age of twenty-one with a blood alcohol concentration of two hundredths of
one percent, or more, by weight, but less than eight hundredths of one percent,
or more, by weight, 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)(1) If a person
applies for and is accepted into the Motor Vehicle Alcohol Test and Lock Program prior to the effective
date of the revocation, the commissioner shall defer the revocation period of
such person under the provisions of this section. Such deferral shall continue
throughout the applicable minimum period for the use of the ignition interlock
device plus an additional period equal to the applicable minimum revocation
period. If a person successfully completes all terms of the Motor Vehicle Alcohol Test and Lock Program for a period equal to the
minimum period for the use of the ignition interlock device pursuant to
subsection (c) of this section, plus any applicable minimum revocation period,
the commissioner shall waive the revocation period.
(2) The application and
acceptance of a person into the Motor Vehicle Alcohol Test and Lock Program pursuant to this
subdivision (1) constitutes an automatic waiver of their right to an
administrative hearing. The Office of Administrative
Hearings may not conduct a hearing on a matter which is the basis for a person
actively participating in the Motor Vehicle Alcohol Test and Lock Program
(f) 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.
(g) 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.
(h) 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.
(i) 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. If the commissioner finds that any person participating in
the program pursuant to section two-b, article five of this chapter must be
removed therefrom for violation(s) of the terms and conditions thereof, he or
she shall notify the person, the court that imposed the term of participation
in the program and the prosecuting attorney in the county wherein the order
imposing participation in the program was entered.
(j) A person whose license has been suspended for a first
offense of driving while under the age of twenty-one with a blood alcohol
concentration of two hundredths of one percent, or more, by weight, but less
than eight hundredths of one percent, or more, by weight, 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.
(k) In addition to any
other penalty imposed by this code, any person who operates a motor vehicle not
equipped with an approved motor vehicle alcohol test and lock system during
that person's participation in the Motor Vehicle Alcohol Test and Lock Program is guilty of a
misdemeanor and, upon conviction thereof, shall be confined in jail for a
period not less than one month nor more than six months and fined not less than
$100 nor more than $500. Any person who
attempts to bypass the alcohol test and lock system is guilty of a misdemeanor
and, upon conviction thereof, shall be confined in jail not more than six
months and fined not less than $100 nor more than $1,000: Provided, That
notwithstanding any provision of this code to the contrary, a person enrolled
and participating in the test and lock program may operate a motor vehicle
solely at his or her job site if the operation is a condition of his or her
employment. For the purpose of this section, "job site"
does not include any street or highway open to the use of the public for
purposes of vehicular traffic.
ARTICLE 5C. OFFICE OF
ADMINISTRATIVE HEARINGS.
§17C-5C-6. Phase out
and termination of Office of Administrative Hearings.
In order to transfer
jurisdiction to the courts of this state for the conduct of the hearing process
in relation to contested cases involving license revocation, suspension or
denial of licensing by the Commissioner of the Division of Motor Vehicles, the
Office of Administrative Hearings, effective upon passage of this section,
shall not retain jurisdiction for those matters set forth under section three
of this article. The Office of Administrative Hearings shall retain
jurisdiction of the matters pending before it prior to the date of the passage
of this section and shall in an orderly and efficient manner, bring disposition
to all such matters pending before it. Upon resolution of all such matters, the
Office of Administrative Hearings shall be terminated. The Secretary of the
Department of Transportation may establish interim policies and procedures to
aid in the orderly and efficient process during the disposition of remaining
cases before the Office of Administrative Hearings during the phase-out period
until termination, including the transfer of employees from the Office of
Administrative Hearings, if feasible, to other divisions under the Department
of Transportation.
NOTE: The purpose of this bill is to eliminate the Division of Motor Vehicle’s administrative hearing process for suspending and revoking driver’s licenses based on D.U.I.; to eliminate all statutory provisions authorizing or requiring the division to take action upon an individual’s driver’s license based on D.U.I., in the absence of a conviction or court order; to establish new procedures for courts with criminal jurisdiction to suspend and revoke driver’s licenses based on D.U.I., and to require certain warnings concerning blood and breath tests during D.U.I. arrests.
Strike throughs indicate language that would be stricken from a heading or the present law, and underscoring indicates new language that would be added. §17C-5A-2 and §17C-5A-2a have been completely rewritten, and are therefore completely underscored.
