Do I Refuse To Blow?

As the owner and operating lawyer of West Virginia’s DUI Defense Law Firm, The Wagner Law Firm, a question I routinely get asked by people is, “Should I refuse to blow?”. The short answer is, “Yes, you refuse to blow (as well as all testing and questioning) and you ask for a blood test from a reputable medical facility.” The longer answer is a little more nuanced.

In 2020, our West Virginia legislature made some long overdue, sweeping changes in West Virginia’s DUI laws and how a DUI charge goes through the West Virginia court system. For decades prior to July 1, 2020, West Virginia had two completely separate court systems on a DUI charge, the criminal court and the DMV/Driver’s license court. A completely dysfunctional, unfair, tax payer funded waste of a two-court system. Finally, we got the legislation passed to do away with that separate DMV court and go back to one court system that handles all aspects of a DUI charge in the state of West Virginia, that being the criminal court. The West Virginia Division of Motor Vehicles now only has the authority to take action on a citizen’s driver’s license based solely on the outcome of the DUI charge in the criminal court. A much more fair, efficient and fiscally responsible court system in the handling of a DUI charge the state of West Virginia now has in place.

However, one additional component to these new DUI laws in the state of West Virginia is when a citizen is alleged to have refused the breath machine at the police station post arrest. When this is alleged by the arresting officer, the citizen or his DUI counsel has thirty (30) calendar days to file with the court, a refusal request hearing. Once this is done, there is no action taken against the citizen’s West Virginia driver’s license, or if out of state, the citizen’s privilege to drive within the borders of West Virginia. If the court ultimately finds that the citizen was lawfully arrested for driving under the influence, thus probable cause to arrest, and that the citizen accused upon being asked by the arresting officer to provide a sample of his breath for testing, refused to do so, and after the passage of 15 minutes did not change his mind, the court will enter an order that the citizen refused (to blow into) the secondary chemical test (machine). This Order is sent to the West Virginia DMV for administrative action to then be taken.

The penalty for refusing to blow post arrest at the police station in the state of West Virginia, if you are licensed in the state of West Virginia, is a loss of license for one year; or alternatively, a restricted license with thirteen and one-half months (13.5) of the interlock alcohol detection device in your vehicle to continue lawfully driving. If you hold an out of state license, and do not have the need to drive within the borders of West Virginia with the interlock restriction, you would simply choose the one year no driving in West Virginia option. Noting that this penalty for out of state licensees has no direct effect on the home state license. It is strictly a one year no driving penalty within the borders of West Virginia only. The home state license could only be affected if the citizen is convicted of DUI in the criminal court and that conviction gets transmitted to the home state. Noting that there are five states that do not participate in the interstate compact (Georgia, Wisconsin, Massachusetts, Michigan, and Tennessee) plus some states like Pennsylvania take no action on the PA driver’s license for a first offense out of state DUI conviction.

As such, if you are licensed in another state and are arrested for DUI in the state of West Virginia, and do not have a need to drive within the borders of West Virginia, for say work or family needs, then you would always refuse any breath testing attempts by law enforcement, as well as any testing period, along with (politely) refusing to answer any questions or accusations.

If you live in West Virginia and/or are licensed in the state of West Virginia, you would also want to refuse any breath testing, as well as any testing period, along with (politely) refusing to answer any questions or accusations; however, in this scenario, the citizen also wants to request a blood test from a reputable medical facility. Noting that upon request for a blood test, the arresting officer by West Virginia law must take you to the nearest hospital to have your blood drawn and thereafter submitted to the West Virginia Crime Lab for testing. Failure to do so by the arresting officer can result in your DUI case being dismissed.