DUI Frequently Asked Questions

The questions listed here address some of the common concerns and issues that people have regarding a DUI arrest in West Virginia. The answers given are general and broad in scope and are not intended to address a specific case or set of facts, but are meant to give you some guidance and understanding regarding a DUI arrest. Further, these answers are not to be used as legal advice nor as a substitute for a full and thorough legal analysis of your particular situation.

Each case is unique and requires the comprehensive review by an experienced DUI attorney.

For a free evaluation of your case, contact Todd La Neve at toll-free 877-7WV-LAWS (877-798-5297).

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What is the legal blood alcohol content (BAC) in West Virginia?

All 50 states now use the BAC threshold of 0.08 percent, meaning that in West Virginia and any other state, it is illegal to drive a motor vehicle if your blood alcohol concentration, or BAC, is 0.08 percent or higher. If you are under 21 years of age, a trace amount of alcohol in your blood, or 0.02 percent, is illegal. Commercial drivers in West Virginia are subject to a BAC of 0.04 percent when operating a commercial vehicle. Be aware, however, that you can be arrested for a DUI even if your BAC is below the legal limit if the officer determines that you were under the influence of alcohol while driving, based upon his or her observations, your appearance, speech, and ability to perform certain agility or coordination tests.

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How can I avoid a DUI charge?

To avoid a DUI charge, simply don’t drive after drinking any amount of alcohol. A police officer can stop you for a traffic violation or for erratic driving, at least in the eyes of the officer. Then, once you are being questioned and the officer smells what he believes to be alcohol, he is going to assume you are under the influence of alcohol regardless of how much you drank or when. This decision is highly subjective and if the officer can detect the odor of alcohol on your breath or you admit having had one or two drinks, the officer can ask you to perform field sobriety tests, which are easily failed. DUI investigation and enforcement is a high priority for law enforcement agencies in this era, and massive amounts of state and federal money are invested into grants that encourage police to make more arrests. This translates into greater enforcement efforts which means that it is increasingly difficult to avoid a DUI arrest even if you have consumed alcohol prior to driving and are still able to safely and lawfully drive. Avoid the risk altogether by not putting yourself into that situation.

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Are the field sobriety tests (FST) accurate?

There are standardized field sobriety tests (SFST), used by the majority of West Virginia police departments, that were developed by the National Highway Traffic Safety Administration (NHTSA) to give police officers in the field a method of determining impairment at BACs of 0.01 percent and higher, and later "studied" to determine their usefulness at predicting BAC’s of 0.08. The test battery consists of three standardized tests. The Horizontal Gaze Nystagmus test, used to check a suspect’s eyes, has a reliability of 77%. The Walk and Turn test, where a DUI suspect is asked to walk 9 steps on a real or imaginary straight line, and then turn and walk back, is accurate about 68% of the time. The One Leg Stand test was only 65% accurate. Three major studies concluded that the combined results could achieve an accuracy rate of up to 95% if "properly administered." The techniques used for obtaining the data in the studies, however, were not consistent with valid scientific and analytical methods, meaning that the high reliability numbers established by these studies are misleading. The bottom line on field sobriety testing is that it is only as good as the method and manner of administration and scoring by the officer and as good as the physical or mental limitations of the person being asked to perform the test. Interestingly, the lead researcher on the team that developed this test battery has testified during deposition that these tests bear no relationship to a person’s ability to drive. Nonetheless, these tests continue to be used across the country.

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Do I have to take the police officer’s tests?

Any test that an officer may try to give you at the scene of a traffic stop is voluntary and you are under no legal obligation to take any of them, nor will you suffer any penalty for refusing. These tests were designed to allegedly test your physical agility and mental clarity and include the tests described above as well as often including other, nonstandardized tests that officers seem to use far too often, such reciting the alphabet, counting, touching a finger to your nose, and others. You may also refuse to submit to the officer’s hand held breath test. You can, and probably will, still be arrested for suspicion of being DUI, however, based upon your physical appearance, driving conduct, speech, or detectable odor of an alcoholic beverage. The main reason to refuse these tests, besides their being entirely voluntary, is that performing them is going to do nothing more than provide evidence for the officer to use against you in the DUI prosecution. If you choose to exercise your right to decline the tests, the officer may become more insistent and suggest that if you do well he will let you drive away. However, we have never seen this actually happen because the tests are most normally interpreted to support the officer’s decision to arrest, not to release the driver. The law doesn’t require you to do anything at the roadside but provide proper identification. Be courteous and be cooperative, but don’t say or do anything beyond identifying yourself.

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Do I have to take a breathalyzer at the police station or booking facility?

Anyone who drives a motor vehicle in West Virginia has "impliedly consented" to take a test of their blood alcohol content (BAC) if the police have reason to ask the driver to take one. This implied consent arises by virtue of accepting a driver’s license – in doing so, you agree that you will submit to the officer’s test and that, if you don’t, you understand you will be subject to an enhanced license revocation. Because of this implied consent, the police are permitted to request that you take a secondary chemical test of your breath, blood, or urine although the majority of police agencies will ask you to take a breathalyzer. They can and will ask you to do so regardless if you already took the hand held breath test at the scene of your traffic stop. You can refuse to take the breathalyzer and there is no criminal penalty for doing so in West Virginia. But, under West Virginia law you risk an enhanced suspension of your driver’s license for refusing to submit to the test requested by the officer. For first-time offenders, the suspension is for one straight year, or, alternatively, for 45 days followed by 12 months of interlock usage if you participate in a Test and Lock program and waive your right to an administrative hearing. If you have had more than one DUI suspension, your license can be suspended for 10 years or even for life if you have multiple prior refusals. You must complete a safety and treatment program and participate in a mandatory ignition interlock program before your license will be reinstated.

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Are the secondary breathalyzer machines accurate?

There are a variety of factors that can influence the breathalyzer test and result in false high readings or even completely false positive readings. West Virginia law enforcement uses the Intoximeter EC/lR II, a device first approved in 2003. While considered an improvement over the older machine, its fuel cell technology does not allow the administrator to discriminate between drinking alcohol (ethanol) on a person’s breath and other substances that may be present in a suspect’s mouth, lungs or stomach, including other forms of alcohol that were not ingested intentionally. Any low molecular weight alcohol besides ethanol will be read by the EC/IR II. The manner in which the machine is maintained and the test is conducted can also affect the results. The best way to challenge the breathalyzer results is to hire an experienced and knowledgable DUI attorney who can attack the reliability of the machine and the administrator's compliance with state regulations for testing.

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Can I, or should I, request a blood alcohol test?

The police at the station or booking facility are only obligated to request you to take whatever secondary testing method they use. Currently, breath, blood, and urine tests are the three approved testing methods in West Virginia, although the breath test is the chosen secondary testing method of every police agency in West Virginia. Once the breath test is offered, you must take it or risk an enhanced suspension of your driver’s license. Once you have taken the breath test, you can request that a sample of your blood be taken at a hospital and the officer must comply with your request. Under the West Virginia Code, a DUI suspect is entitled to request a blood test and the officer must make arrangements to have that take place. A blood alcohol test can be more reliable than a breath test, and it is possible the results of a blood test would show widely varying BAC readings, which could cast doubt on your true blood alcohol concentration and lead to an important defense to the DUI charge.

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Would I be better off to just plead guilty and get it over with?

If you decide to plead guilty, you are waiving your right to any DUI defense or to have your case evaluated by a legal professional. You will end up convicted of the crime and will be subjected to a possible jail or prison sentence to go along with fines and court costs. Each case is different and many times an experienced DUI attorney can find errors made by the police or prosecuting attorney which may invalidate your arrest or the results of your breath or blood test. DUI charges can be dismissed as a result of these mistakes or the penalties or charges against you reduced. Without the advice and representation of a DUI attorney, you are practically guaranteed of going to jail and having your driver’s license suspended. Further, any subsequent DUI conviction will expose you to prolonged jail time, increased fines and years of license suspension. You should take every opportunity to keep a DUI charge off your record. Hiring an attorney is no guarantee you will be able to avoid or minimize the consequences of a DUI arrest, but hiring an experienced West Virginia DUI defense attorney will give you every opportunity to find a way to get the best possible result.

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Are there two separate hearings when someone is arrested for DUI?

Yes, there are. Once you have been arrested for DUI, you face both criminal charges and civil administrative proceedings. The criminal charges of DUI and driving with a BAC of 0.08 percent or higher, along with any other criminal offense, deal only with jail time and fines. These proceedings, which take place in our state’s courts, are separate from the administrative hearing held before the Office of Administrative Hearings at which the West Virginia Department of Motor Vehicles (DMV) is the opposing party. In the civil administrative proceeding, the only matter in issue is the suspension of your driver’s license. It is possible that even if all DUI arrest charges are dismissed against you, your license can still be suspended.

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Can I still drive after a DUI arrest?

You can still drive for a limited period after a DUI arrest. The Division of Motor Vehicles will send a certified letter advising of a proposed revocation of your license and you must file the appropriate documents with the Office of Administrative Hearings to request a hearing on the revocation. As long as the hearing request is made withint the proper time frame, you can continue to drive until the Office of Administrative Hearings issues a Final Order suspending your driving privileges. If the final order finds there was insufficient evidence of impaired driving, then you will not be suspended and your ability to lawfully drive will have continued uninterrupted. If you refuse to take the secondary breath test offered at the police station or booking facility, the law provides for an administrative suspension which can enhance the period of time you are prohibited from driving.

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Can I get a "work permit" to drive to and from work if my license is suspended?

No, West Virginia does not allow "work permits" for drivers who have had their licenses suspended. You must first serve a minimum period of suspension and, for many offenses, participate in an Ignition Interlock Program before being permitted to drive again without restriction. This program consists of a breath testing device that is wired into your car’s electrical ignition system that requires the driver to blow into the device to check for the presence of alcohol. Even minute amounts of alcohol will shut the ignition system down and prevent the vehicle from starting. If your attempt to drive is prevented by the unit having detected alcohol, you can potentially be expelled from the program and have to serve the remainder of your suspension, or comply with a longer driving time with the device installed in your vehicle.

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Can I still work after being arrested?

There is no reason why you cannot continue to work after your West Virginia DUI arrest. If you are convicted, your conviction is public record and your employer or potential employer may use this as an excuse to not hire you, promote you, or even to fire you. It is not unusual for a court to limit your ability to travel out-of-state without court permission. Your failure to obtain permission could result in your being found in contempt of court or in violation of a court order, so if your job requires out of state travel, it is important to let your DUI attorney know so that he can assist you in getting a modification of your bond conditions to permit you to leave the state for work purposes.

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Can the West Virginia DMV suspend my out-of-state driver’s license?

Because your license was not issued by the West Virginia DMV, it cannot suspend your out-of-state license. If you are from another state and arrested for a DUI in West Virginia, you are still subject to a hearing before the West Virginia Office of Administrative Hearings, however, and can face a suspension of your privilege to drive in West Virginia if it finds there is sufficient evidence that you were under the influence of alcohol or drugs in violation of West Virginia’s DUI laws. You can only legally drive again in West Virginia on your out-of-state license after completing the West Virginia requirements for reinstatement of your driving privileges. Be aware, however, that the state that did issue your license may suspend your license in that state if it is notified of a DUI conviction in a West Virginia court. If your home state license is not suspended, there is no limitation on your ability to drive in the other 49 states during the time the West Virginia suspension is in effect, but all driving in West Virginia is prohibited until you satisfy all requirements for reinstatement here.

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If I am a nonresident of West Virginia and my driving privileges are suspended here, can I drive in other states?

For the most part, you can legally drive in any other state as long as your home state license remains valid. Once your driver’s license has been suspended in your home state, that information is available to all law enforcement agencies across the country. If you are convicted of a DUI offense in West Virginia, that information will be shared with your home state and you can expect a license revocation which affects your ability to drive anywhere. However, if you are not convicted of a DUI in a West Virginia court, but rather face only a suspension of your privilege to drive here, that does not affect your ability to drive in the other 49 states. One notable exception to this rule is for the Commonwealth of Virginia, which will suspend your VA license based on either a court conviction OR a notice of administrative suspension of your driving privilege. Currently, VA is the only state that will suspend based on either outcome. All other states still suspend only when notice is provided that a court conviction for DUI has occurred. One other point to keep in mind is if your privilege to drive in West Virginia is still in effect when your home state license comes up for periodic renewal, you will most likely not be able to renew your home state license with an open West Virginia revocation. For this reason, you must satisfy the West Virginia reinstatement requirements after being suspended for a DUI, even if you live in another state.

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Will I go to jail if I am convicted of a DUI?

For a first-time DUI offender, there is no mandatory jail time if your BAC is under 0.15%., although the court is still permitted to impose a jail sentence. If you are convicted of a 1st offense DUI with a BAC of 0.15% or greater, known as Aggravated DUI, there is a mandatory minimum of 48 hours jail time, plus fines and court costs. See our page on DUI criminal penalties DUI DMV penalties regarding the various DUI offenses and their punishments.

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Can I still own firearms after a DUI conviction?

Generally, yes, you can still own a firearm despite a DUI conviction. The exception to this is if your DUI conviction was a felony offense, such as a DUI with a death or a third DUI offense. Federal law prohibits a convicted felon from owning firearms.

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If I am convicted of a DUI, how does that affect my "record?"

A DUI is a criminal offense and it will be a permanent part of your criminal history. The details of your arrest and conviction along with your fingerprints and physical characteristics are entered into a national database for law enforcement and courts to use. It is possible, however, to expunge or erase from your criminal record a DUI conviction under certain conditions and circumstances. You need to contact a DUI attorney to see if your conviction is eligible for expungement as this opportunity exists in only a very limited set of circumstances and only if you act promptly after being arrested for a 1st Offense DUI with a BAC of less than 0.15%. A DUI conviction is also a part of your driving record. The West Virginia DMV maintains a record of any criminal convictions related to the operation of a motor vehicle along with any license suspensions. In West Virginia, a DUI conviction is relevant for 10 years for criminal and license suspension purposes, meaning that a DUI that occurred 10 years ago or longer cannot be used to enhance a criminal charge or license suspension. Your driver’s record contents are only available for public viewing over a rolling five year period. In other words, the contents of your record can be viewed by those with a right to access the records for a period of five years back from the current calendar date. A DUI conviction or suspension that occurred five years and one day ago is not visible to the public, but remains visible to law enforcement and the courts. Employers, insurance companies, or other similar entities can only see what has happened in the immediately preceding five years.

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