(a) Except as provided in subsection (g) of this section, whenever any person who has not previously been convicted of any offense under this section or under any statute of the United States or of any state or any other ordinance relating to driving under the influence of alcohol, any controlled substance or any other drug:
(1) Notifies the court within thirty days of his or her arrest of his or her intention to participate in a deferral pursuant to this section; and
(2) Pleads guilty to or is found guilty of driving under the influence of alcohol under Section 333.01A(c), the court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of any code to the contrary, the accused shall have an opportunity to participate in and successfully complete the Motor Vehicle Alcohol Test and Lock Program as provided in W.Va. Code 17C-5A-3a.
(b) A defendant’s election to participate in a deferral under this section shall constitute a waiver of his or her right to an administrative hearing as provided in W.Va. Code 17C-5A-2.
(c) (1) If the City Attorney files a motion alleging that the defendant during the period of the Motor Vehicle Alcohol Test and Lock program has been removed therefrom by the Division of Motor Vehicles, or has failed to successfully complete the program before making a motion for dismissal pursuant to subsection (d) of this section, the court may issue such process as is necessary to bring the defendant before the court.
(2) A motion alleging such violation filed pursuant to subdivision (c)(1) must be filed during the period of the Motor Vehicle Alcohol Test and Lock Program or, if filed thereafter, must be filed within a reasonable time after the alleged violation was committed.
(3) When the defendant is brought before the court, the court shall afford the defendant an opportunity to be heard. If the court finds that the defendant has been rightfully removed from the Motor Vehicle Alcohol Test and Lock Program by the Division of Motor Vehicles, the court may order, when appropriate, that the deferral be terminated, and thereupon enter an adjudication of guilt and proceed as otherwise provided.
(4) Should the defendant fail to complete or be removed from the Motor Vehicle Alcohol Test and Lock Program, the defendant waives the appropriate statute of limitations and the defendant’s right to a speedy trial under any applicable Federal or State constitutional provisions, statutes or rules of court during the period of enrollment in the program.
(d) When the defendant shall have completed satisfactorily the Motor Vehicle Alcohol Test and Lock Program and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the Division of Motor Vehicles that the defendant has successfully completed the Motor Vehicle Alcohol Test and Lock Program. A copy of the motion shall be served on the City Attorney who shall within 30 days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant’s attorney. If there are no objections filed within the 30-day period, the court shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the court shall proceed as set forth in subsection (c) of this section.
(e) Except as provided herein, unless a defendant adjudicated pursuant to this subsection be convicted of a subsequent violation of this Code, discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime except as otherwise provided by law. Except as otherwise provided by law regarding subsequent offenses, the effect of the dismissal and discharge shall be to restore the person in contemplation of law to the status he or she occupied prior to arrest and trial. No person as to whom a dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his or her failure to disclose or acknowledge his or her arrest or trial in response to any inquiry made of him or her for any purpose other than the inquiry made in connection with any subsequent offense as that term by law.
(f) There may be only one discharge and dismissal under this section with respect to any person.
(g) No person shall be eligible for dismissals and discharge under this section:
(1) In any prosecution in which any violation of any other provision of City Code 333.01A has been charged;
(2) If the person holds a commercial driver’s license or operates commercial motor vehicle(s), or
(3) The person has previously had his or her driver’s license revoked under any statute of the United States, the State of West Virginia or of any state relating to driving under the influence of alcohol, any controlled substance or any other drug.
(h) Any person who has been subject to dismissal and discharge under this section may apply to the Circuit Court of Marion County for an order of expungement pursuant to and as provided by the provisions of W.Va. Code 17C-5-2b.
(i) Notwithstanding any provision of this Code to the contrary, any person prosecuted for a violation of subsection (c) of City Code 333.01A, whose case is disposed of pursuant to the provisions of this section shall be liable for any fine and court costs assessable against a person convicted of a violation of subsection (i), of City Code 333.01A. Payment of such fine and costs may be made a condition of deferral. The costs assessed pursuant to this subsection, whether as a condition of deferral or not, shall be distributed as other court costs in accordance with law. (Ord. 1487. Passed 6-8-10.)