(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.

medical exam

Ask a accident law question, get an answer ASAP!
Thousands of highly rated, verified accident lawyers.
Click here to chat with a lawyer about your rights.

Terms Used In West Virginia Code 17C-5-7a

  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
  • Testimony: Evidence presented orally by witnesses during trials or before grand juries.

(b) Effective July 1, 2020, 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 appearance before the court, the court shall advise the person 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

(D) The arrested person refused to submit to the chemical test or tests requested by the law-enforcement officer.

(3) If the court determines, by a preponderance of the evidence, that one or more of the required conditions listed in subdivision (2) 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 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 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.