Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
               ENGROSSED
          House Bill 5039
                By Delegate Linville
   (By Request of the Division of Motor Vehicles)
   [Introduced January 23, 2024; Referred to the Committee on Technology and Infrastructure then the Judiciary]
     Eng HB 5039
  A BILL to amend and reenact §17C-5-7 and §17C-5-7a of the Code of West Virginia, 1931, as
         amended, relating to authorizing the West Virginia Division of Motor Vehicles to enforce
         administrative penalties for the civil offense of refusing a secondary chemical test.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE 5. SERIOUS TRAFFIC OFFENSES.
     §17C-5-7. Refusal to submit to tests; revocation of license or privilege; consent not withdrawn if person arrested is incapable of refusal; hearing.
         (a) If any person under arrest, as specified in §17C-5-4 of this code, refuses to submit to a
  secondary chemical test, the test shall not be given.
         (b) Upon requesting that a person submit to the secondary test, designated pursuant to
  §17C-5-4 of this code, the person shall be given the written and verbal warnings set forth in
  §17C-5-4(e) of this code. After the person under arrest is given the required written and verbal
  warnings, the person shall have the opportunity to submit to, or refuse to submit to, the secondary
  test. A refusal to submit to the secondary test is considered final after 15 minutes have passed
  since the refusal: Provided, That during the 15 minutes following the refusal, the arresting officers
  shall permit the person under arrest to revoke his or her refusal and shall provide the person with
 the opportunity to submit to the test upon request. After the 15 minutes have passed following a
 refusal to submit to the secondary test, the arresting officer has no further duty to provide the
 person with an opportunity to take the secondary test.
        (c) The officer shall, within 48 hours of the refusal, sign and submit to the Commissioner of
 the Division of Motor Vehicles and the court having jurisdiction over the charge filed against the
 person pursuant to §17C-5-2 of this code, a written statement 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 a person under arrest or in custody for a violation of §17C-
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 5-2 of this code refused to submit to the secondary chemical test designated in the manner
 provided in §17C-5-4 of this code; and (4) (2) the person was given the verbal warnings and the
 written statement required by subsection (b) of this section and §17C-5-4 of this code. An officer,
 by signing the statement required by this subsection, makes an oath or affirmation that the
 information contained in the statement is true and that any copy of the statement that he or she
 files is a true copy. The form for the written statement required by this section shall contain, upon
 its face, a warning to the officer signing that to willfully sign a statement containing false
 information is false swearing and is a misdemeanor.
         (d) 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 §17C-5-4 of this code 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.
         (e) The amendments made to this section during the 2020 2024 regular session of the
 Legislature shall become effective on      July       1,      2020       2024.
     §17C-5-7a. Suspension of license to operate a motor vehicle for refusal of secondary test;
             refusal review hearing.
          (a) For the purposes of this section, the term "refusal review hearing" refers to a hearing
  to review a person’s alleged refusal to submit to a secondary chemical test, as documented in a
  statement submitted to the court by a law-enforcement officer pursuant to §17C-5-7 of this code.
          (b) Effective July 1, 2020 2024, the court shall enter an order finding that a person charged
  with a violation of §17C-5-2 of this code did refuse to submit to a secondary chemical test, as
  required by §17C-5-4 of this code, subject to the following:
          (1) At the person’s first pre-trial conference or initial preliminary hearing the Court shall
  conduct a refusal review hearing. appearance before the court, the court shall advise the person
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  that his or her license to operate a motor vehicle shall be revoked for the applicable period
 provided in subsection (e) of this section, unless the person requests a refusal review hearing
 within the 30 days following the first appearance;
         (2) If the person does not request a refusal review hearing within 30 days following the first
 appearance the court shall enter an order finding that a person charged with a violation of §17C-5-
 2 of this code did refuse to submit to a secondary chemical test; and
         (3) If the person requests a refusal review hearing within 30 days following the first
 appearance, the court shall conduct the review and enter the appropriate order, as provided in
 subsection (c) of this section.
         (c) Refusal review hearing. —
         (1) The court shall schedule and conduct a refusal review hearing if the person, named in a
 statement submitted to the court by a law-enforcement officer pursuant to §17C-5-7, requests the
 hearing within 30 days following his or her first appearance before the court During the refusal
 review hearing, the court shall review the statement documenting the person’s refusal to submit to
 the secondary chemical test, along with any testimony or evidence presented by the person or
 law-enforcement officer during the hearing.
         (2) Based on the hearing, the court shall enter an order finding that the person did refuse to
 submit to a secondary chemical test, if the court determines, by a preponderance of the evidence,
 that:
         (A) The arresting law-enforcement officer had reasonable grounds to believe the arrested
 person had committed a violation of §17C-5-2 of this code;
         (B) The law-enforcement officer requested the arrested person to submit to the chemical
 test or tests designated pursuant to §17C-5-4 of this code;
         (C) At the time the test was requested, the law-enforcement officer administered the
 required written and verbal warnings required by §17C-5-4 and §17C-5-7 of this code; and
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         (D) The arrested person refused to submit to the chemical test or tests requested by the
 law-enforcement officer.
         (3) (2) If the court determines, by a preponderance of the evidence, that one or more of the
 required conditions listed in subdivision (2) (1) of this subsection did not occur, the court shall enter
 an order finding that the person did not refuse to submit to the secondary chemical test. If the court
 enters such an order, the Commissioner of the Division of Motor Vehicles may not revoke the
 person’s license to operate a motor vehicle based on the alleged refusal to submit to a secondary
 chemical test.
         (d) The clerk of the court in which the charges are pending shall immediately transmit any
 order entered pursuant to this section to the Commissioner of the Division of Motor Vehicles.
         (e) Upon receipt of an order provided pursuant to this section finding that a person did
 refuse to submit to a secondary chemical test, The Commissioner of the Division of Motor Vehicles
 shall revoke the person's license to operate a motor vehicle as follows:
         (1) For the first refusal to submit to the designated secondary chemical test, the
 commissioner shall enter an order revoking the person's license to operate a motor vehicle in this
 state for a period of one year or for a period of 45 days, with an additional one year of participation
 in the Motor Vehicle Alcohol and Drug Test and Lock Program in accordance with the provisions of
 §17C-5A-3a of this code.
         (2) If the person’s license to operate a motor vehicle has previously been revoked under
 the provisions of this section, the commissioner shall, for the refusal to submit to the designated
 secondary chemical test, enter an order revoking the person's license to operate a motor vehicle in
 this state for a period of 10 years: Provided, That the license may be reissued in five years in
 accordance with the provisions of §17C-5A-3 of this code.
         (3) If the person's license to operate a motor vehicle has previously been revoked more
 than once under the provisions of this section, the commissioner shall, for the refusal to submit to
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 the designated secondary chemical test, enter an order revoking the person's license to operate a
 motor vehicle in this state for a period of life.
         (f) A copy of each order entered pursuant to this section shall be forwarded to the person
 by registered or certified mail, return receipt requested, and shall contain the reasons for any
 revocation and shall specify the revocation period imposed pursuant to this section.
         (g) A revocation ordered pursuant to this section shall run concurrently with the period of
 any suspension or revocation imposed in accordance with §17C-5A-2 of this code.
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Statutes affected: 
Introduced Version: 17C-5-7
Engrossed Version: 17C-5-7