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The West Virginia DUI Guide

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I just got arrested for a State of West Virginia DUI charge.  What happens next?

 

ISSUE ONE:  The West Virginia Implied Consent Proceeding:  Under West Virginia law, any person who drives a motor vehicle in the State of West Virginia is deemed to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood.  This is known as West Virginia's implied consent law. 

 

Pursuant to West Virginia's implied consent law, your West Virginia drivers license (or your right to drive in West Virginia if you're not a West Virginia licensed driver) was most likely revoked for a period of one year or 45 days, with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program if you refused to provide a secondary chemical (usually a breath) test.  This is the test administered at the the police station.  [There is no penalty for refusing a breath test at the scene.]  You face a longer revocation period if you have a prior DUI history.

 

This revocation typically starts on the 10th day following your arrest. 

 

Read your paperwork carefully, and speak to your West Virginia DWI attorney for more information about whether its in your best interest to contest your implied consent revocation.  Keep in mind that the application for participation in the Motor Vehicle Alcohol Test and Lock Program requires waiving your right to a hearing to contest you suspension.

 

 

ISSUE TWO:  The West Virginia DUI Criminal Case:  Separate from the administrative license proceeding is the criminal charge either for driving under the influence (DUI).  Under West Virginia law, it is unlawful to drive a vehicle while you:

(A) Are under the influence of alcohol;

(B) Are under the influence of any controlled substance;

(C) Are under the influence of any other drug;

(D) Are under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Have an alcohol concentration in his or her blood (BAC) of 0.08 percent or more. 

Important:  The implied consent proceeding and the criminal DUI case are completely separate matters. 

 

Will my West Virginia driver license be suspended or revoked?

 

RELATED TO ISSUE ONE ABOVE:  Your West Virginia driver license (or your right to drive in West Virginia if you do not have a valid West Virginia license) may be revoked in the implied consent proceeding for refusing a chemical test for alcohol and / or drugs.  This revocation is for one year or more depending on your DUI history. 

You may seek to shorten this suspension by participating in the WV Motor Vehicle Alcohol Test and Lock Program.  Speak to your WV lawyer for more information.

RELATED TO ISSUE TWO ABOVE:  If you are convicted of the DUI charge, your West Virginia license (or your right to drive in West Virginia if you don't have a valid license) for six months or more depending on your DUI / DWI history.

Keep in mind that your license can be suspended or revoked for a variety of reasons unrelated to a DUI including:

A manslaughter or negligent homicide conviction resulting from the operation of a motor vehicle;
Two or more moving violation convictions as a graduated driver;
Providing false information to the DMV;
A conviction for leaving the scene of an accident that results in death or personal injury;
Three convictions of reckless driving in 24 months;Racing on streets or highways;
A conviction for driving while license is suspended / revoked;
Failure to satisfy a civil judgment against you as a result of your involvement in an automobile accident;
A second conviction for failure to pay for gasoline;
A conviction for any felony committed using a motor vehicle.

What happens if I get caught driving while my license is revoked?

 

Driving while your license is revoked for a test refusal or a DUI conviction should be avoided, as it is a separate misdemeanor offense.  Penalties include jail time, a fine, and an additional license revocation.

 

I really need to drive.  Will I be able to get a restricted license / work permit / occupational / conditional / probationary permit?

West Virginia does not offer any type of "work permit" for a DUI related license revocation.  However, first time DUI offenders may be able to significantly shorten their revocation lengths through participation in the Motor Vehicle Alcohol Test and Lock Program.  Persons charged with DUI-drugs are not eligible to participate in the Motor Vehicle Alcohol Test and Lock Program and must serve the full revocation.

 

What is the difference between a DUI, DWI, OWI, OUI etc.?

 

These terms are all acronyms that refer to the crime commonly known as "drunk driving."  Different states have different names for the crime.  For example, in Iowa the acronym OWI (operating while impaired / intoxicated) is used; New Jersey, Texas and other states use the term DWI (driving while intoxicated).  West Virginia law refers to: driving under the influence (DUI) of alcohol and / or drugs.  The term DUI is used by a number of states.

 

Is a DUI charge in West Virginia a misdemeanor or felony charge?

In West Virginia, a first or second conviction within a 10 year period is a misdemeanor crime.  A third or subsequent conviction within a 10 year period is a felony offense. 

What type of penalties might I face if I am convicted of an West Virginia DUI charge?

 

Upon conviction of an West Virginia drunk driving offense, a defendant can receive a variety of penalties including completion of a DUI Alcohol Safety Treatment Course.  A range of penalties is set forth below: 

 


WEST VIRGINIA DUI PENALTY CHART

WV DUI CONVICTION TYPICAL SENTENCING PENALTIES
FIRST CONVICTION
Misdemeanor
  • fine of under $500;
  • jail time possible but not required if BAC under 0.15%;
  • 2 days jail or more if BAC is 0.15% or greater;
  • six month license revocation.  See Note 3.
SECOND CONVICTION
(second offense within past ten years)
Misdemeanor

  • fine of at least $1000;
  • six months jail;
  • one year license revocation.

THIRD CONVICTION
(third offense within past 10 years)
Felony

  • fine of at least $3000;
  • one year or more in prison;
  • one year license revocation.
Note 1:  The critical look back period for prior convictions in West Virginia is ten years.
Note 2:  A third or greater conviction within the past 10 years is a felony crime.
Note 3:  Participation in the Motor Vehicle Alcohol Test and Lock Program will shorten the revocation to 15 days followed by 120 days of an ignition interlock device if you BAC was below a 0.15%.  If your BAC is 0.15% or greater, participation in the program will shorten the revocation to 45 days followed by 270 days of an ignition interlock device.
Note 4:  Having a child under 16 in the car while driving under the influence (sometimes referred to as child endangerment) will result in a minimum two day jail sentence and at least a one year license revocation.

Will my defense lawyer be able to plea bargain / negotiate my West Virginia DUI down to another (lesser type) offense?

Possibly.  Unlike some states, there is no anti-plea bargaining statute in the State of West Virginia.  Under some circumstances, your lawyer may be able to obtain a plea to a reckless driving charge.  [Any person who drives a vehicle upon any street or highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.]

Will a West Virginia DUI conviction go on "my driving record?"

Yes.  A DUI will go on your West Virginia driving record and remain indefinitely.

Just how much jail / prison time will I have to do if I am convicted of a DUI in West Virginia?

The amount of jail time received will depend on a number of different factors, including (but not limited to) the following:

•  your prior driving record especially your DUI history (including any DUI's / DWI's outside of West Virginia);

•  your level of intoxication / blood alcohol content (a BAC of 0.15% or more can result in greater penalties);

•  whether there was an accident / collision involved;

•  whether there was injury (especially serious injury) to another person;

•  which West Virginia county or court your case is in;

•  which judge sentences you;

•  whether there was a passenger especially a child under 16 years of age in your car;

•  whether the judge feels you have accepted responsibility.

 

I am licensed to drive in a state other than West Virginia and I was cited for a DUI in West Virginia.  Will my driver license be revoked or suspended?

West Virginia only has the authority to revoke your right to drive in the State of West Virginia.  However, West Virginia and 44 other states and Washington D.C. have adopted an agreement known as the "Driver License Compact."  West Virginia will report a driving under the influence conviction to the home state of the driver (assuming the home state has also adopted the Compact).  Your home state will then generally take action to suspend or revoke your drivers license.

This also works in reverse.  If you are a West Virginia licensed driver and you are convicted of a DWI / DUI / OWI / OVI in another state, West Virginia will revoke your license when it learns of your conviction. 

Will I have to install an Ignition Interlock Device on my car?

 

An ignition interlock device (IID) is a breath alcohol measurement device that is connected to a motor vehicle ignition system.  In order to start the vehicle, a driver must blow a breath sample into the IID which then measures alcohol concentration. 

 

West Virginia requires installation of an ignition interlock device with participation in the Motor Vehicle Alcohol Test and Lock Program and for multiple DUI convictions.  Speak to your WV lawyer for more information

What will a West Virginia DUI do to my ability to keep my liability insurance?

If your insurance company finds out about your DUI conviction one of two things are likely to happen.  Either your West Virginia insurance company will raise your rates or your policy may be cancelled or not renewed. 

Are there special concerns for licensed pilots who get an West Virginia DUI?

 

Yes.  The FAA has special reporting requirements for certain Motor Vehicle Actions including West Virginia DUI convictions and implied consent license revocations.  Learn more about the FAA requirement here.

I failed to appear for my court appearance.  What do I do now?

Failing to appear (FTA) for court is to be avoided.  When you miss a West Virginia court appearance, bad things happen.  At a minimum, the West Virginia court typically issues a summons or warrant for your arrest (sometimes known as a bench warrant).  You may also face a new, additional criminal charge of "failure to appear."  Talk to a WV lawyer as soon as possible.  Often, your only option is to turn yourself in on the outstanding warrant.  A new court date will then be scheduled.

Can I represent myself in court on my West Virginia DUI or other criminal charge(s)?

Yes.  You have an absolute constitutional right to represent yourself on any criminal charge no matter how serious including an West Virginia DUI charge.  Keep in mind that WV DUI law is complex as shown by the information in this website.  If you cannot afford to hire your own lawyer, you definitely should apply for a court appointed attorney.  You have no right to court appointed counsel at any hearing challenging your implied consent license revocation.

Copyright 2013, 2012, 2011, 2010

 

 

Websites, including this one, provide general West Virginia DUI information but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice about your case, criminal charge, or situation.  Consult qualified West Virginia DUI attorneys for advice about any specific problem or West Virginia drunk driving charge that you have.  West Virginia attorneys are governed by the West Virginia Rules of Professional Conduct.  This website may be considered an advertisement for services under these Rules.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  No attorney associated with this website is specialized or certified in any way. 

 

Providing drunk driving (DUI) and criminal defense representation to the communities of:  Charleston, Huntington, Ashland, Parkersburg, Morgantown, Wheeling, Kanawha County, Cabell County, and Wayne County.  Beat a DUI.  What happens after a WV DUI.  West Virginia lawyers may accept credit cards. 

 

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