West Virginia DUI Frequently Asked Questions

These questions are designed to answer some typical questions that arise following a DUI arrest. The answers are not intended to serve as full and complete legal advice, nor should they be used as a substitute for a legal analysis of your particular situation. You can contact La Neve Law Offices to arrange a free consultation by calling, TOLL FREE at 1-888-DUI-CHARGE (1-888-384-2427).

Q. Can I still drive after being arrested for a DUI?

A. You are lawfully permitted to drive for a limited period of time after a DUI arrest. If you file the appropriate paperwork with the Division of Motor Vehicles in a timely manner, you may continue to drive until the Commissioner of the DMV issues a Final Order in which your driving privilege is suspended. The law does provide for an administrative suspension which can take place at the time of arrest if you refuse to submit to the secondary breath test which will be offered at the police station, court house, or other booking facility.

Q. What is the legal blood alcohol limit (BAC) in West Virginia?

A. The West Virginia Legislature adopted legislation lowering the lawful BAC to .08, with the new law going into effect on May 5, 2004. Until midnight of May 4, 2004, the limit will still be .1. As of May 5, 2004, West Virginia will have a BAC threshold of eight hundredths of one percent (0.08) by weight, meaning it is unlawful to drive a motor vehicle if your BAC is 0.08 or greater.

It is very important to note that the law in West Virginia also makes it a crime to drive a motor vehicle in this state if you are under the influence of alcohol or drugs. A police officer may find that you are under the influence of alcohol or drugs if you fail his or her field sobriety tests even if your BAC is less than 0.08.

Q. Do I have to go to jail if I am convicted of a DUI?

A. West Virginia's laws generally require that anyone convicted of a DUI offense spend some amount of time in jail. See this website's pages regarding the various offenses and their punishments.

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

A. Every case must be evaluated individually to determine the best way to handle the charge. However, there are very few cases that are open and shut in favor of the state. Very often, an experienced DUI lawyer can find mistakes made by the police or prosecution which invalidate the arrest. Criminal charges can end up being dismissed as a result of some of these mistakes, or the charges or punishments can be reduced. The only guarantee is that if you choose to plead guilty without the advice of an experienced DUI lawyer, you will go to jail and you will lose your driving privileges. Another important reason to fight your DUI is that the punishment gets more severe if you are ever charged and convicted of DUI again. Generally, in every state, the punishment gets worse with subsequent convictions, so it is important to give yourself every opportunity to keep the charge off your record.

Q. How can I avoid a DUI charge?

A. The only guaranteed way to avoid being charged or convicted of DUI is to NEVER get behind the wheel of a motor vehicle after drinking. Even one or two "harmless" drinks while out to dinner or at a party can lead to a DUI arrest. DUI is an area of law that is highly subjective and an officer may believe you are at least under the influence even if you only had one or two drinks regardless of whether or not you truly are. If an officer smells the odor of an alcoholic beverage, or if you admit to drinking even one drink, you will be subjected to field tests which are very easily failed. The number one "trick" for avoiding a DUI is to not drink and drive.

Q. Do I have to take the police officer's tests?

A. The tests that an officer may try to give you at the scene of the traffic stop are 100% voluntary. This includes the physical agility tests (standing on one leg, walking heel to toe on a straight line), a test of your eyes, and a handheld breath test. You do not have to take any of these tests and you cannot be punished for refusing them. However, even if you exercise your right to refuse these tests, you may still be arrested based on other factors such as your driving, the odor of an alcoholic beverage, or your physical appearance or speech patterns.

Q. What about the breath test at the police station or other booking facility?

A. West Virginia, like most states, allows the police to request that you submit to what is called a secondary chemical test of your breath, blood, or urine to determine the concentration of alcohol in your blood. Most police agencies, though not necessarily all, choose to make this secondary test a breath test. Even if you chose to blow into the handheld breath machine at the scene of the traffic stop, you must still take the secondary breath (or blood or urine) test. If you refuse this secondary test, there is a very real risk that your driving privilege will be suspended for at least one year and up to life. Unlike some states, there is no criminal penalty for refusing a secondary test in West Virginia, only an administrative penalty involving suspension of your driving privileges.

Q. Are the secondary breath testing machines accurate?

A. Many factors can affect the results of the secondary breath test. West Virginia uses the Intoxilyzer 5000 CD/FG5 breath test machine produced by CMI, Inc. These machines are actually older technology. CMI and other companies have produced new machines that supposedly use newer, more accurate technology to measure alcohol in a person's blood. However, West Virginia has not employed any of those newer machines yet.

The test results on the Intoxilyzer 5000 series of machines can be affected by things such as temperature, emissions from police two-way radios, and the presence of food or other foreign materials in the test subject's mouth, among numerous other issues. If the machine is not properly maintained, it will also give inaccurate readings. The best way to challenge the results is to hire an experienced DUI attorney.

Q. Are the field tests accurate?

A. The standardized field sobriety tests used by most West Virginia police agencies were developed by the National Highway Traffic Safety Administration (NHTSA) as a way to give officers in the field a method for determining impairment at BACs of 0.1 or greater. Now, the government is saying that the tests are just as reliable for detecting the lower BAC of 0.08 in effect in most states, although no changes have been made to how the tests are conducted.

Individually, these three standardized tests are not very reliable. The Horizontal Gaze Nystagmus test, used to check a DUI suspect's eyes, has a reliability of 77%. The Walk and Turn test (9 steps on a straight line, turn and come back) only provides an accurate result only 68% of the time, while the One Leg Stand test is only accurate 65% of the time. When these tests are combined, police studies have shown they can provide accuracy as high as 95%. However, this level of accuracy was achieved under conditions which involved highly experienced officers volunteering to participate in the DUI study. These officers all received specialized training before the study began and then they were turned out to the field on their own, without any oversight. Essentially, the results were the product of self-reporting by these specially trained officers and there was no manner of cross-checking the reliability of these self-reports.

Q. What's this I've heard about there being two separate hearings when someone is arrested for DUI?

A. Following a DUI arrest, you will face both criminal charges and civil administrative proceedings. The criminal court process deals only with jail or prison time and fines. Generally, criminal court does not have any impact on your driving privilege. However, you must also deal with administrative license suspension proceedings before the DMV. This part of your case deals only with whether or not your driving privilege is suspended for any length of time. It does not result in jail or fines being imposed.

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

A. No. West Virginia, unlike some other states, does not currently allow a "work permit" or other type of special license for drivers whose privileges have been suspended. The closest thing to a special permit is the Ignition Interlock Program (commonly called the "blow and go"), which allows a suspended driver to again begin driving, but only after a minimum suspension period is first served.

Q. How can I get out of a DUI charge?

A. Defending against a DUI is an extremely complicated matter and should only be done with the assistance of an experienced DUI lawyer. There are many areas of attack that can be used to fight a DUI, but it takes a trained attorney to identify those areas and use them to your advantage. There are typically no guarantees in the criminal law system. That is why your selection of an attorney to defend you is one of the most important decisions you will face. Beware of attorneys who say they handle DUI defense but who do not have significant experience. Even outstanding general criminal defense lawyers are not necessarily able to fully appreciate and investigate a DUI. It takes experience and special training for your attorney to have the maximum impact in a DUI case.

Q. Can I still work after being arrested?

A. People often wonder if an arrest will affect their employment. The straightforward answer is that some employers will take a very dim view of a DUI arrest, even if the case hasn't yet been argued in court. However, that decision is up to the individual employer. From a legal standpoint, there is usually nothing about a DUI arrest that prevents you from carrying out your normal daily activities except for conditions of any bond you may have posted. Frequently, out of state travel will be limited by the court unless permission is first granted by the court. This is an important point that many people are not aware of and is yet another reason that hiring an experienced lawyer is important.

Q. Can I still own firearms if I'm convicted of a DUI?

A. As the law now stands, yes. However, if your DUI is a felony level offense and you are convicted, federal law prohibits you from owning any type of firearm.