Can My House Arrest for DUI in West Virginia Subject to Probation?
Full Question:
Does a magistrate court judge have the ability to overturn specific sentencing on a plea agreement for 2nd offense DUI? I am wondering if a judge can remove one from house arrest and place one on probation for the remainder of the sentence.
07/20/2009 |
Category: Drivers Lice... » Influence of... |
State: West Virginia |
#17659
Answer:
The penalties in WV DUI statute are mandatory and not subject to probation. Please see the following WV statutes to determine applicability:
§ 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-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 supersedeas 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 supersedeas 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.
