(a) Except as provided in subsection (g) of this article, whenever any person who has not previously been convicted of any offense under this code or under any statute of the United States or of any state 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 Part Three, Chapter Five, Article 333.01
(c) of this Code.
The court, without entering a judgment of guilt and with the consent of the accused, shall defer further proceedings and, notwithstanding any provisions of this code to the contrary, place him or her on probation, which conditions shall include that he or she successfully completes the Motor Vehicle Alcohol Test and Lock Program as provided in West Virginia Code Section 17C-5A-3a.
(b) (1) If 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) 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.
(3) 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.
(c) 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 thirty 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 thirty-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 (b)(1) of this article.
(d) Except as provided herein, unless a defendant adjudicated pursuant to this subsection be convicted of a subsequent violation of this article, 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 for those provided in article five-a of the West Virginia Code. 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 any inquiry made in connection with any subsequent offense.
(e) There may be only one discharge and dismissal under this section with respect to any person.
(f) No person shall be eligible for dismissal and discharge under this article: (1) In any prosecution in which any violation of any other provision of Part Three, Chapter Five, Article 333.01
of this Code has been charged; (2) if the person holds a commercial driver's license or operates commercial motor vehicle(s); (3) if the person has previously had his or her driver's license revoked under West Virginia Code Section 17C-5-2(a) or under any statute of the United States or of any state relating to driving under the influence of alcohol, any controlled substance or any other drug; or (4) if the person refused the secondary chemical test pursuant to West Virginia Code Section 17C-5-7.
(g) (1) After a period of not less than one year which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this article, the person may apply to the circuit court for an order to expunge from all official records all recordations of his or her arrest, trial and conviction, pursuant to this article except for those maintained by the Division of Motor Vehicles: Provided, That any person who has previously been convicted of a felony may not make a motion for expungement pursuant to this section.
(h) Notwithstanding any provision of this code to the contrary, any person prosecuted for a violation of Part Three, Chapter Five, Article 333.01
(c) of this Code, whose case is disposed of pursuant to the provisions of this article shall be liable for any court costs assessable against a person convicted of a violation of said offense. Payment of such costs may be made a condition of probation. The costs assessed pursuant to this article, whether as a term of probation or not, shall be distributed as other court costs. (Passed 9-13-16.)