In June of 2010, the West Virginia legislature created an additional component to our DUI statute (WV Code 17C-5-2) known as, “The Deferral Program” (WV Code 17C-5-2b), and therein fundamentally altered the long held addage of always submitting to the breath machine on a first offense case as refusing presented a far greater license suspension consequence to the citizen. This is no longer the case.
In theory, the deferral program was designed to afford a citizen accused, who submitted to the designated secondary chemical test (a.k.a. the breath machine) with a blood alcohol concentration result < .15, the option of entering a condtional guilty plea to the DUI 1st charge, which could be dismissed in full, with further option of having the arrest itself expunged from their record, provided several steps were fulfilled prior to returning to the criminal court for disposition.
*To qualify, the citizen may not have a CDL license, any heightened allegation in the DUI charge (injury, minor in vehicle, fleeing, DUI drugs, etc.) or any prior DUI conviction or DUI related license suspension anywhere in the United States in their past. In short, a straight forward DUI 1st offense case with an offered breath test result of <.15.
Upon qualifying, the citizen enters a guilty plea in the criminal court, which is not entered but held by the court for a period of time. The citizen then concedes the license administrative side of their case and agrees to go 15 days with no driving whatsoever, followed by 165 days of Interlock installation in the citizen’s vehicle thereafter. Upon successful completion, along with having also completed the alcohol safety treatment program (a.k.a. “the license classes) and the payment of the DMV required reinstatement fee, the criminal court then dismisses the DUI 1st offense charge against the citizen. One year from that date, the citizen can then move to have their record of their arrest expunged and fingerprint cards destroyed.
However, in the infinite wisdom -or lack thereof- the WV legislature, then, now and since, never addressed how “refusals” are to be handled as to the deferral program. Nowhere is a refusal addressed in WV Code 17C-5-2b / the deferral program. Moreover, due to this absent addressing in the code section, the West Virginia DMV is ”approving”, and criminal courts throughout this state are honoring, any and all citizens who have a first offense DUI charge in West Virginia, who otherwise qualify; but, who also refuse the breath machine, in addition to those that do submit with an offered result of < .15 blood alcohol concentration.
What does this mean you ask? What this means is that the modern day rule in West Virginia for how a citizen is to handle a first offense arrest for DUI is to refuse the breath machine. For if you comply and submit a breath sample at the police station and the magic box shoots out a number > .15 blood alcohol concentration, our state is saying, “plead or go to trial.” But.., if you refuse the breath machine at the station, our state is rewarding the citizen with a dismissal and expunction of their record opportunity. Now granted, you are going to have to go 45 days without driving and 12 months of the Interlock; but, at the end of all lies a dismissal of your case and eventual expunction of your record.
For example, let’s say the citizen is extremely intoxicated, falling out of the car drunk and blows a .30 on the roadside preliminary breath test (not to be confused with the “official” one at the station). He or she gets to the police station and tells the officer, “screw you cop, I’m not taking your stupid breath test.” Our state? Good for you Mr. and Mrs. Citizen, you are going to get rewarded with the option to have your case dismissed and record expunged and the best part? You don’t even have to ask a prosecutor or judge permission to do so. It’s automatic upon timely request (30 days post arrest) and fulfillment of the advised obligations. Conversely, if you cooperate and the magic box spits out a number higher than .149, it’s plead or go to trial.
Why on Earth then would ANY citizen accused of first offense DUI in the State of West Virginia NOT refuse the breath test at the police station? Answer: There is no reason. ”Refuse” the breath machine on a DUI first offense in West Virginia and you can get your charge dismissed and your record expunged.
The Wagner Law Firm, West Virginia’s only exlusive DUI defense firm, is making it abundantly clear to any and all: ” ‘Refuse’ the breath machine on a DUI first offense in West Virginia and you can get your charge dismissed and your record expunged.”