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DUI Frequently Asked Questions in West Virginia

What are the elements of a DUI offense in West Virginia?

West Virginia uses the per se law, which provides guilt for the driver based on BAC rather than actual intoxication. This means that with a blood alcohol content level of 0.8% or higher (which is the West Virginia legal limit), it does not matter if you exhibit any signs of intoxication such as poor field sobriety tests, slurred speech, smell of alcohol, etc. Once the driver shows 0.8% or higher, he will be convicted of a DUI, and the conviction will be imposed according to his previous records, level of BAC content, age, etc.

When you can be arrested for DUI in West Virginia?

After a police officer pulls you over with a “reasonable suspicion” that you may have been drinking and driving, or for other traffic violations, the police officer can ask you to undergo several tests to determine if you have been drunk driving. The officer may conduct a field sobriety test or a breathalyzer test to determine at the scene, or may take you to the police station to perform some tests. If the test shows that you had a BAC of 0.08% or higher, then you shall be arrested for DUI. Even if you do not reach that level, the police officer can determine that you were under the influence and were not in a condition to drive. Other blood tests may be made for controlled substance or illegal drugs.

Are there sentence enhancements for DUI in West Virginia?

In West Virginia, instead of enhanced penalty laws, there is something called an aggravated DUI. An aggravated DUI applies when the driver is convicted of a DUI, operating a motor vehicle with a blood alcohol level (BAC) of 0.15% or more. There is a more stern punishment for those convicted of DUI with a particularly high blood-alcohol content at the point in time of arrest (typically .15 to .20 BAC percent above the legal limit), enhanced penalty laws are not utilized in West Virginia. An aggravated DUI conviction carries harsher penalties than a regular non-aggravated DUI conviction in West Virginia. There is mandatory jail time of 24 hours that must actually be served through incarceration. A jail sentence may range from two days to six months. In addition, there will be a mandatory license suspension of 45 days, followed by a mandatory ignition interlock device in any vehicle driven for 270 days.

What are lawful/unlawful vehicle stops in West Virginia?

All vehicle stops in West Virginia must be made by an authorized agent working for the government. In order for an officer to lawfully conduct a traffic stop for a DUI, the officer must have a “reasonable suspicion” of a criminal activity. The standard for the reasonableness is very low, as a mere hunch of illegal activity can be sufficient for an officer to stop a vehicle. However, a stop is not the same as arrest. To make an arrest, the officer must have probable cause, just like any other crime. The driver can ask the officer of what he was pulled over for, and if the officer cannot seem to give him a legitimate answer, then the driver should contact his lawyer immediately and let the lawyer know of the sequence of events that occurred. One reason is that if at any point the officer does not have a sufficient basis either for the stop or the arrest, then all evidence that is obtained after that point can be excluded.

What evidence can/cannot be admitted in a DUI?

First, a police officer’s testimony as to a driver’s performance on other field sobriety tests like finger-to-nose or walking the line is admissible at trial as evidence that the drive was under the influence of alcohol. Second, a scientific test may be admissible, as long as there is a general acceptance of the principle which underlies the test. Some scientific tests such as the horizontal gaze nystagmus (HGN) test are not admissible in a civil or criminal proceeding to show that a person drove a motor vehicle under the influence of alcohol (or in violation of W.Va Code 17C-5-2). However, they are admissible if the prosecution uses expert testimony of the scientific reliability of the evidence in the case. A police officer who is trained to perform HGN tests are not considered experts who can attest to the test’s scientific reliability.

Third, evidence of the amount of alcohol in the person’s blood at the time of the arrest or of the acts alleged, as shown by a chemical analysis of his or her blood, breath or urine, is admissible, if the sample or specimen was taken within two hours from and after the time of arrest or of the acts alleged. W.VA Code § 17C-5-8

What are the laws for DUI for minors in West Virginia?

West Virginia has a Zero Tolerance rule for underage DUIs. Any underage driver with a BAC content of 0.02% (which is basically 0) will be convicted of a DUI. When an underage driver is convicted for the first time, the fines are minimal ranging from $25-$100. His driver’s license will be suspended for 60 days unless the driver chooses to install an ignition interlock device in his vehicle. If he chooses the IDD option, he will get his license back in 30 days, only if the device must remain in his vehicle for 5 months. If the driver gets convicted again, for the second time, the penalties get more severe. The driver may have to spend a day in jail with fines ranging from $100 to $500. His license will get suspended without the option of an IDD either for one year or until the underage driver turns 21, whichever is longer. As provided above, the underage DUI driver may try to expunge his conviction.

What are the DUI laws for Commercial Drivers in West Virginia?

Commercial Drivers are held to higher standard when it comes to DUI offenses. A commercial driver can be convicted for a DUI with a BAC content of 0.04% or higher. This is much stricter than a normal driver’s limit of 0.08% and a bit less than the 0.02% allowed for underage drivers. The commercial drivers are put in a different bracket for BAC content because they often transport hazardous materials, or can be of a greater danger on the road when they drive under the influence. A commercial driver, who is convicted of a DUI for the second time, have his commercial driver’s license revoked for life and may not drive a commercial vehicle ever. Depending on the circumstances, this may or may not be reduced to ten years.

In addition to these specific limitations for commercial drivers, other DUI penalties for non-commercial drivers also apply to commercial drivers for their first and second offenses of DUI.

What is Chemical Testing for DUI in West Virginia?

West Virginia uses the EC/IR ii breath testing device in all 55 counties. This device is manufactured by Intoximeters, Inc. This device collects a sample of breath, and through that breath an infrared energy beam is shot. Then a portion of the breath is introduced to the fuel cell in the device, and a result is calculated. The result will appear on the display and then printed on a Certificate of Analysis. The infrared light determines the exact timing of when to place the sample breath to the fuel cells. The fuel cell facilitates a chemical reaction that results in an electrical current. This current is what is used to calculated BAC content. The test is done twice automatically by the device and both results should resemble each other or vary by less than 0.02 of each other. If not the device may be faulty and the results should not be followed.

What is the implied consent law in West Virginia?

West Virginia is among many states with an implied consent law, under which a person who drives a car in West Virginia is presumed to have agreed to suspension of his driver’s license if he refuses to consent to a blood, breathalyzer, or urine test for DUI. Under the US Constitution and

West Virginia constitution, any driver has the right to refuse to provide evidence against him by testing, but his driver’s license may be immediately confiscated and he may face a minimum 12-month suspension. The driver may be issued a temporary license, pending a suspension hearing. In addition, his act of refusal can be used as evidence of guilt in a DUI prosecution. If he consents, he has the right to an independent blood test, at his own expense. This may be more accurate. The driver may seek an attorney to help him with the DUI process but not to contest the constitutionality of the implied consent law because West Virginia Courts have rules implied consent laws constitutional.

What is an ignition interlock device?

An ignition interlock device (IID) is a device size of a cellular phone that is connected to the vehicle’s ignition. The device, when installed into the car, requires the driver of the vehicle to take breath samples before the engine will start. The engine will not start if the IID detects alcohol.

IIDs are often used as negotiating piece, for defending attorneys and prosecutors to negotiate matters such as expungement with the promise to keep an IID in place for certain amount of days. Usually, when an expungement is approved, the driver must have the IID for 165 days.

Any drivers required to use an IID but does not use one can be found guilty of a misdemeanor which can be punished between 1 to 6 months in jail and a fine of $100 – $1000.

Can I be stopped and arrested for DWI even if the vehicle was not moving?

According to the definition section of West Virginia Code §17C-5-2a, “driving or operating a motor vehicle while intoxicated” means to “drive a vehicle.”

In some states, keys left in the ignition can be used to show the intent to drive. Also, non-moving vehicle can still be operated and controlled, which are evidence in other state’s DUI laws.

Do I have to give a blood or urine sample?

When arrested for DUI, West Virginia implied consent law requires you to submit to testing of your blood or breath for alcohol content.

If you refuse a breath, blood, or urine test, your license will be suspended for a period of one year. People who refuse to submit to a chemical test must successfully complete an alcohol education or treatment program before their driver’s licenses can be reinstated.

West Virginia, unlike some states, does not criminalize the refusal to test following a West Virginia DUI arrest.


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