Current through Register Vol. XLI, No. 24, June 14, 2024
Section 91-5-16 - Alcohol and Drug Test and Lock Program16.1. Application and Statutory Reference. -- This section applies to persons applying for restricted driving privileges when the person's license has been revoked for driving under the influence or related offenses under the provisions of W. Va. Code § 17C-5A-3a and to providers and manufacturers of alcohol and drug test and lock equipment.16.2. Definitions. 16.2.a. Applicant -- Means the person applying for enrollment in the motor vehicle alcohol and drug test and lock program as established in accordance with W. Va. Code § 17C-5A-3a.16.2.b. Commissioner -- Means the executive officer of the Division of Motor Vehicles appointed by the Governor pursuant to W. Va. Code § 17A-2-2 or his or her lawful designee.16.2.c. Commercial Motor Vehicle -- Means any motor vehicle designed or used to transport passengers or property as defined in W. Va. Code § 17E-1-3.16.2.d. Division -- Means the division of motor vehicles of this state acting directly or through its duly authorized officers and agents.16.2.e. Equipment -- Means a mechanical or computerized system, installed and monitored by an approved Service Provider, which 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, that person is determined to be under the influence of alcohol.16.2.f. Final Revocation -- Means a license suspension or revocation which has run the full course of administrative and or judicial review. In the context of this section, a person may not participate in the program if the person has any action pending on the offense either criminally or administratively. The revocation must be final.16.2.g. Law Enforcement Officer -- Means a law enforcement officer as defined in W. Va. Code § 17C-5-4.16.2.h. License -- Means any permit or license issued by this State which authorizes a person to drive a motor vehicle, or the privilege to operate a motor vehicle.16.2.i. Participant -- Means the person accepted for enrollment in the motor vehicle test and lock program as established in accordance with W. Va. Code § 17C-5A-3a.16.2.j. Passenger Vehicle -- Means a Class A vehicle weighing 10,000 pounds or less.16.2.k. Positive Identification Equipment -- A mechanical or computerized system that positively identifies the user of the Ignition Interlock equipment.16.2.l. Program -- Means the motor vehicle alcohol and drug test and lock program as established in accordance with W. Va. Code § 17C-5A-3a.16.2.m. Revocation Waiver Program - Means a procedure that allows an applicant to avoid a revocation by applying for the Test and Lock Program prior to the scheduled revocation date in accordance with W. Va. Code § 17C-5A-3a(e). This will result in the revocation period being converted to additional participation time in the program.16.2.n. Safety and Treatment Program -- Means the Safety and Treatment Program as established in accordance with W. Va. Code § 17C-5A-3.16.2.o. Service Provider -- Means a vendor and its employees authorized by Division of Motor Vehicles to provide services related to the program.16.2.p. Service Center -- Means the physical location of a vendor where services related to the program are provided.16.3. Eligibility for Program Participation. 16.3.a. An applicant who is a resident of this state must hold a West Virginia license. An applicant who is a resident of another state or jurisdiction must participate in accordance with terms established by the Commissioner.16.3.b. An applicant must be eighteen (18) years of age or older.16.3.c. An applicant's license must be revoked for an offense in violation of W. Va. Code §§ 17B-3-5(6), 17C-5-1 et. seq., or 17C-5A-1 et. seq.16.3.d. An applicant must have served the minimum license revocation period as prescribed by W. Va. Code § 17C-5A-3a, and this rule, unless the applicant is applying through the Revocation Waiver Program. 16.3.d.1. If the applicant's license has been revoked for a first offense of driving under the Influence with BAC less than .15 or knowingly permitting driving under the influence as described in W. Va. Code §§ 17C-5A-2(j), 17C-5-2(e) or 17C-5-2(h), the applicant must serve a minimum revocation period of fifteen (15) days before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum period of 125 days.16.3.d.2. If an applicant's license has been revoked for a first offense described in W. Va. Code § 17C-5-7, refusal to submit to designated secondary chemical test, the applicant must serve a minimum revocation period of forty-five (45) days before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum period of twelve (12) months.16.3.d.3. If an applicant's license has been revoked for a first offense of Driving Under the Influence with BAC of .15 or more as described in W. Va. Code § 17C-5A-2(k) or 17C-5-2(f), the applicant must serve a minimum revocation period of forty-five (45) days before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum 270 days.16.3.d.4. If an applicant's license has been revoked for a first offense of driving under the influence involving the death of another person as described in W. Va. Code §§ 17C-5A-2(g) or (h) or 17C-5-2(a) or (b), the applicant must serve a minimum revocation period of twelve (12) months before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum of two (2) years.16.3.d.5. If an applicant's license has been revoked for a first offense of driving under the influence involving the bodily injury of another person as described in W. Va. Code §§ 17C-5A-2(i) or 17C-5-2(c), the applicant must serve a minimum revocation period of two (2) months before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum of one (1) year.16.3.d.6. If an applicant's license has been revoked for a first offense of driving under the influence while having a child under the age of sixteen in the vehicle as described in W. Va. Code §§ 17C-5A-2(o) or 17C-5-2(k), the applicant shall serve a minimum revocation period of sixty (60) days before he or she is eligible to participate in the program. The applicant shall retain the interlock device in his or her vehicle for a minimum of ten (10) months.16.3.d.7. The Division will 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 (10) years.16.3.d.8. If an applicant's license has been revoked for a second offense described in W. Va. Code §§ 17C-5A-1 et seq. or 17C-5-1 et. seq., the applicant must serve a minimum revocation period of twelve (12) months before he or she is eligible to participate in the program, except as otherwise defined in this subdivision. The applicant must retain the interlock device in his or her vehicle for a minimum period of two (2) years.16.3.d.9. If an applicant's license has been suspended for a first offense of underage twenty-one - any measurable alcohol as described in W. Va. Code §§ 17C-5A-2(n) or 17C-5-2) (i), the applicant must serve a minimum revocation period of thirty (30) days before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum of six (6) months.16.3.d.10. If an applicant's license has been revoked for a second offense of under the age twenty-one - any measurable alcohol as described in W. Va. Code §§ 17C-5A-2(n) or 17C-5-2(j), the applicant must serve a minimum revocation period of two (2) months before he or she is eligible to participate in the program. The applicant must retain the interlock device in his or her vehicle for a minimum of twelve (12) months for each additional previous conviction or revocation within the past ten (10) years.16.3.d.11. If an applicant's license has been revoked for a second offense of Driving Under the Influence while having a child under the age of sixteen in the vehicle as described in W. Va. Code §§ 17C-5A-2(o) or 17C-5-2(k), the division shall add an additional two (2) months to the minimum period for the use of the interlock device as required in Paragraph 13.6.d.8. of this rule.16.3.d.12. If an applicant's license has been revoked for a second offense of Driving Under the Influence involving the Bodily Injury of another person as described in W. Va. Code §§ 17C-5A-2(I) or § 17C-5-2(c), the division shall add an additional six (6) months to the minimum period for the use of the interlock device as required in Paragraph 13.6.d.8. of this Rule.16.3.d.13. If an applicant's license has been revoked for a second offense of driving Under the Influence involving the Death of another person as described in W. Va. Code §§ 17C-5A-2(g) or (h) or 17C-5-2(a) or (b), the division shall add an additional twenty-four (24) months to the minimum period for the use of the interlock device as required in Paragraph 13.6.d.8 of this rule.16.3.e. An applicant must within sixty (60) days of acceptance in the program be enrolled in or have completed the Safety and Treatment Program.16.3.e.1 If the Division finds, during review of any participant's data that the participant continues to exhibit signs of abuse through frequent or significant Blood Alcohol Content (BAC) readings, the Division shall inform the Safety and Treatment Program provider, who shall then determine if further services are indicated.16.3.e.2. If, subsequent to receipt of a notification of completion of the Safety and Treatment Program, the Division finds, during review of a participant's data that the participant continues to exhibit signs of abuse through frequent or significant Blood Alcohol Content (BAC) readings, the Division shall inform the Safety and Treatment Program provider, who shall then void the notification of completion. The Division shall notify the participant that he/she must return to the Safety and Treatment Program provider for re-evaluation and possible further services.16.3.f. An applicant is not eligible for participation in the Program if his or her license is revoked or suspended for any other reason or has any other active suspensions or revocations in any jurisdiction except those included in subsection 16.3.g of this rule unless the applicant provides evidence that the active revocation or suspension in the other jurisdiction is for the same events resulting in application to participate in the Program. The applicant cannot operate a motor vehicle in the other jurisdiction until authorized by the other jurisdiction.16.3.g. An applicant is eligible for participation in the program if he or she has been convicted of any violation of W. Va. Code § 17B-4-3, for driving while the applicant's driver's license was suspended or revoked within the six month period preceding the date of application. He or she may still participate in the test and lock program by serving the revocation or suspension required by W. Va. Code § 17B-4-3 as additional participation time in the program.16.3.h. Any person who is revoked for a second or subsequent DUI stemming solely from the use of controlled substances or drugs may apply for a revocation reduction in accordance with W. Va. Code § 17C-5A-3a(e) or (f).16.3.i. The Division may require random blood and/or urine tests or other drug test types for participants with a controlled substance or drug DUI, combined alcohol/controlled substance or drug DUI, or participants who demonstrate use of a controlled substance or drug.16.4. Application Procedures. 16.4.a. An applicant shall complete a program application, agree in writing to the conditions of participation and completion and submit a non-refundable fee of one hundred dollars ($100.00) in the form of a certified check or money order to the Division of Motor Vehicles.16.4.b. The payment of the application fee shall cause the application to remain valid for a period of six (6) months.16.4.c. The Commissioner shall either approve the application for participation, subject to the availability of equipment for installation, or shall rule the applicant ineligible for participation based on the criteria prescribed in subsection 16.3 of this rule.16.4.d. An applicant may reapply no more than two (2) times in a six (6) month period. An applicant initially ruled ineligible and subsequently found to be eligible within six (6) months of the initial application is not required to pay the application fee again.16.5. Applicant Requirements. 16.5.a. The applicant, upon receipt of program entry approval, is responsible for completing, signing and returning to the Commissioner, the agreement of conditions of participation and completion, and contacting an approved service provider for installation of the equipment.16.5.b. A licensed driver shall drive the applicant to the service center in the vehicle in which the equipment is to be installed. The vehicle shall be a Class A passenger type vehicle with a valid registration. The applicant shall provide all registration and insurance documents upon request. Insurance information will be subject to random verification. Vehicles must be in such condition as to be capable of passing a safety inspection. Vehicles manufactured before 1988 are not eligible for installation of the equipment. An inspection may be required to verify the presence of an OBD I (On-Board Diagnostics Generation One) or newer version. No vehicle of any other vehicle class may be used in the program.16.5.c. The applicant shall complete the orientation and training program provided by the service provider to the satisfaction of the service provider. Any other person who will operate the vehicle while the equipment is installed shall also complete the orientation and training program to the satisfaction of the service provider.16.5.d. If the vehicle owner is not present at the time of the installation, the applicant shall provide the service provider with a notarized statement of authorization by the vehicle owner allowing the installation of the equipment.16.5.e. The service provider shall notify the Commissioner of the applicant's successful completion of the orientation and training program and that the data-logger and positive identification equipment was installed in accordance with the criteria established by the Commissioner.16.5.f. The Commissioner shall issue the applicant a restricted Class E license upon the Commissioner's receipt of the service provider's notification of equipment installation and successful orientation and training. The license shall restrict the applicant to operating only the vehicle or vehicles in which the equipment is installed.16.5.g. Under no circumstances shall the applicant operate any motor vehicle until the equipment is installed and the applicant has received the specially marked restricted license or temporary letter of authorization. The Division shall provide the participant a temporary letter of authorization to immediately use at the time of equipment installation which may be presented to law enforcement as evidence of a restricted license. The participant shall apply for a restricted driver's license immediately after installation of the equipment. Any participant that fails to apply for the restricted license within sixty (60) days shall have participation time increased for a period equivalent from the time of installation of the device until the time of application for the restricted license.16.5.h. The applicant is responsible for any consequences of operation of the vehicle by persons who have not been trained by the service provider, or who fail to operate the equipment in the manner prescribed by the service provider.16.5.i. Any person required to participate in this program must have an approved ignition interlock device installed on every Class A vehicle he or she owns or operates.16.6. Participant Requirements for Continued Eligibility. 16.6.a. The Commissioner may immediately revoke the restricted driving privileges upon notice of any law enforcement officer, Division employee, or service provider of any participant who: 16.6.a.1. Fails to meet the attendance and participation requirements of the Safety and Treatment Program in which the participant is enrolled, or fails to report for a re-evaluation as required by 16.3.e.2 of this rule.16.6.a.2. Has received any other suspension or revocation;16.6.a.3. Has operated or owned a motor vehicle not containing the required equipment, or was operating a vehicle in violation of any restriction imposed by this rule or the program participation agreement;16.6.a.4. Owns a motor vehicle with equipment that has been altered, tampered with, bypassed or removed without the prior approval of the Commissioner;16.6.a.5. Has allowed or caused another person to bypass, or attempt to bypass the equipment or to circumvent the device in any manner;16.6.a.6. Has operated or attempted to operate a motor vehicle under the influence of alcohol or controlled substances;16.6.a.7. Has been convicted of any motor vehicle offense contained in W. Va. Code § 17B-3-5;16.6.a.8. Fails to abide by the terms and conditions of the lease agreement with the service provider. A service provider shall not remove a participant from the Program without prior approval of the Commissioner;16.6.a.9. Fails to submit to a drug test or demonstrates the use of a controlled substance or drug as referenced in subdivision 16.3.i or of this rule. Due consideration is given when a lawfully prescribed medication yields a positive result if it is taken in accordance with a valid prescription order from a licensed medical practitioner and the prescribed dosage does not create an impairment to driving safely;16.6.a.10. Fails to provide an adequate written explanation regarding the lack of use of the equipped vehicle or vehicles when requested by the Division.16.6.b. The Commissioner, in conjunction with the Service Provider, may assess applicants for re-entry into the Test and Lock Program or may extend the period of time a participant is required to participate in the Program for violations of the terms and conditions of the Program in accordance with the following criteria: 16.6.b.1. An applicant who is disqualified for failure to enroll in or successfully complete the Safety and Treatment Program, but subsequently fully completes the Safety and Treatment Program is eligible for re-entry.16.6.b.2. An applicant who is disqualified for driver license suspensions of one hundred twenty (120) days duration or less and has subsequently resolved those suspensions in a timely manner is eligible for re-entry.16.6.b.3. The Commissioner may extend the participant's time in the Program for two (2) months or more, not to exceed a period equal to the original participation time after an evaluation of the frequency and severity of the participant's violations of the terms and conditions of the Program or other offenses. The Commissioner may disqualify the participant for violations occurring during participation in the Program subject to the following:16.6.b.3.A. The participant will receive no credit for any minimum revocation time period served or participation time period served prior to the disqualification if the participant is disqualified for a combination of frequent or severe violations; and16.6.b.3.B. The participant shall serve a minimum revocation period of twelve (12) months, pay any prior fees owed to the service provider, re-apply for participation in the Program, and retain the Interlock device in his or her vehicle or vehicles for the minimum period described in W. Va. Code § 17C-5A-3a and in Subsection 16.3 of this Rule.16.6.b.4. The Commissioner shall disqualify the participant for major violations occurring during participation in the Program including, but not be limited to; committing any alcohol-related offenses; driving while his or her driver's license was suspended or revoked, driving a vehicle without the required interlock device; tampering with, bypassing, removing or otherwise circumventing the interlock device or allowing another person to do the same; failing to use the equipped vehicle or vehicles; or exhibiting abusive or threatening behavior toward an employee of the Service Provider or Division subject to the following:16.6.b.4.A. The participant will receive no credit for any revocation or participation time served prior to the disqualification if he or she is disqualified for major violations; and16.6.b.4.B. The participant shall then serve a minimum revocation period of twelve (12) months, pay any prior fees owed to the service provider, re-apply for participation in the Program, remit a security deposit to the service provider of an amount not to exceed the cost of the Interlock device, and retain the Interlock device in his or her vehicle or vehicles for the minimum time period described in W. Va. Code § 17C-5A-3a and in Subsection 16.3 of this Rule.16.7. Eligibility For Reinstatement Of License.16.7.a. For purposes of this rule eligibility for reinstatement of driving privileges means, completion of the Safety and Treatment Program, expiration of the required period of time in which equipment is required to be installed and payment of all fees including any fees owed to the service provider.16.7.b. If a participant has failed to complete the Safety and Treatment Program and pay all required fees by the end of the mandatory equipment usage time period, the participant shall either: 16.7.b.1. Continue to use the equipment while actively enrolled in and completing the Safety and Treatment Program; or,16.7.b.2. Return all equipment to the service provider and return his or her license to the Division and shall not operate any motor vehicle until all requirements are met for license reinstatement.16.8. Notice of Violation of Terms of Program Received After Completion. -- Upon receipt of sufficient evidence from any law enforcement officer, Division employee, service provider, or by a court document or judgment that the participant has committed a major violation as described in Paragraph 16.6.b.4 of this Rule, the Commissioner shall revoke the licensee's privilege to operate a motor vehicle in accordance with § 17B-3-6(a)(1); § 17C-5A-3a(h) or §17B-4-3, for a period of not less than six months nor more than one (1) year in accordance with W. Va. Code § 17B-3-6(a)(1), § 17B-3-8, and § 17B-4-3.16.9. Service Provider Standards. 16.9.a. The service provider shall have a minimum of one (1) year experience providing similar service in another jurisdiction.16.9.b. The service provider shall install only equipment which has been approved for use in the program by the Commissioner. No equipment shall be approved unless: 16.9.b.1. The equipment has been in actual field use for at least six (6) months; and,16.9.b.2. The equipment has met minimum specifications established by the Commissioner by submission of test data from an independent alcohol-testing laboratory.16.9.c. The service provider shall establish service centers with the sole purpose of providing service for the Program and its participants.16.9.c.1. The service provider may not conduct any other business at the service centers without the express written consent of the Commissioner.16.9.c.2. The service provider may not assign its responsibilities under the Program to any other entities.16.9.c.3. The service provider shall establish service centers in locations throughout the state as determined necessary by the Commissioner.16.9.d. The Commissioner shall prescribe the hours of operation in consultation with the service provider based on the needs of the applicants in the service area, and the needs of the service provider.16.10. Program Cost. 16.10.a. The program shall operate on a user fee basis with the cost of the program assumed by the applicant.16.10.b. The fees for instruction or leasing, monitoring, servicing and de-installation of equipment shall be set by the Commissioner and cannot be changed without prior review and approval of the Commissioner and can only be changed a maximum of one (1) time per year.16.10.c. The established fees shall be based on average costs and shall not vary according to participant or make of vehicle. Fees shall be uniform at each service center. The fee for installation and removal of ignition interlock devices shall be waived for persons determined to be indigent by the Division of Motor Vehicles in accordance with W. Va. Code § 17C-5A-3. All forms, applications, establishment of procedures and mechanisms to provide approved payments are established by the Division of Motor Vehicles.16.10.d. The service provider shall submit on or before the fifth day of January, of each year to the Commissioner of the Division of Motor vehicles a report of the total number of indigent offenders participating in the program during the prior year.16.10.e. The manufacturer, service provider and or installer through the contract shall indemnify and hold harmless the State of West Virginia and or its employees and agents from any and all claims, demands, actions and costs whatsoever that may arise out of an act or omission by the manufacturer, service provider, installer, and employee or subcontractor of the service provider in the performance of the agreement.16.10.f. The manufacturer, service provider and/or subcontractor shall maintain comprehensive general liability insurance in the amount of at least one million dollars ($1,000,000) per occurrence with a three million dollar ($3,000,000) aggregate total. The liability insurance shall cover defects or problems in or with product design, materials, and workmanship during the manufacture, calibration and installation of the equipment. The insurance shall be obtained through an insurer licensed to do business in the State of West Virginia and the policy shall be designed to provide the Commissioner with at least forty-five (45) days prior to written notice of any cancellation, material change or intent to allow coverage to lapse.