West Virginia’s Tough Implied Consent Law for DUI

Many states have implied consent laws stating that a motorist driving on public roads has tacitly agreed to take a chemical test for alcohol after an arrest for DUI. Refusing to take the test generally results in an automatic suspension of the person’s driver’s license. West Virginia has one of the strictest implied consent laws in the country: a person who refuses to submit to a breathalyzer or other chemical test risks having his license suspended from 45 days to the rest of his life. A second refusal can result in a license revocation for five to 10 years, and a third refusal results in a lifetime revocation.

West Virginia Code §17C-5-4 requires a driver pulled over by an officer who has “reasonable cause” to suspect DUI to submit to a preliminary breath analysis. If the driver refuses to submit under these circumstances, there are no consequences, but a positive result can give an officer probable cause to make a DUI arrest.  Either way, the results of this test are not admissible in court.

However, if the officer has probable cause and makes an arrest, he or she must present the driver with “a written statement advising …[that] refusal to submit to the secondary chemical test … will result in the revocation of his or her license to operate a motor vehicle in this state for a period of at least forty-five days and up to life.”

The results of the secondary test of breath, blood, or urine are admissible in court. This is not a field test; it takes place at the police station and is administered by a specially trained officer who is certified by the Bureau for Public Health.

Now, suppose you refused the secondary test. Would you have any defenses to a lifetime license suspension?  Two defenses are possible:

• The arrest lacked probable cause — The law only goes into effect after a valid arrest. If you were clearly sober and the officer was simply harassing you, you could legally refuse the test.
• The officer did not inform you of the consequences of refusing the test — The law requires written notice, not just an oral warning. However, the courts are not overly sympathetic to drivers who claim they weren’t given notice, and it would be very difficult to prove the officer did not comply with the notice requirement.

A person arrested for DUI generally has little to gain and a great deal to lose from refusing to take the secondary test. West Virginia law makes it possible to be convicted of DUI without chemical test results, so you could be compounding the penalty needlessly. Of course, the precise circumstances of a driver’s arrest dictate the proper course of action, so it is always best to consult an attorney immediately before doing anything that could hurt your case.

The Giatras Law Firm, PLLC is a respected Charleston, West Virginia law firm known for aggressive DUI defense representation. Call us or contact our firm online to schedule a free consultation.