Can You Be Arrested in West Virginia While Under 0.08% BAC?

A lot of people think of 0.08% BAC as a magic number. They believe they’re free to enjoy themselves so long as they don’t’ hit that number. However, those people may not realize that you can be pulled over, arrested, and even lose your license while under 0.08% BAC.

The Magic Number

Can You Be Arrested in West Virginia While Under 0.08% BAC?Most states allow a police officer to arrest a driver they believe presents signs of intoxication, even if their BAC is under 0.08%. In West Virginia, that number could be as low as 0.05%. According to the West Virginia Department of Transportation, drivers pulled over with a BAC above 0.05% “may result in the revocation of your driver’s license.”

The inconsistencies in enforcing these laws can cause serious damage. West Virginia has a table of increasingly severe punishments for alcohol-related suspensions. Even at the second offense, someone driving under the legal limit could feasibly face a steep fine and up to a year in prison.

Implied Consent

West Virginia’s “Implied Consent” rule can create further hardship. If someone refuses a breathalyzer because they haven’t been drinking at all or because they know they’re under the limit, they can be charged on the spot. The penalty for refusing a breathalyzer is a fine and a day in jail, even if you were not driving under the influence.

Implied consent is a legal principle that says that any time a driver chooses to travel on a public road, they give their consent to be pulled over and searched if law enforcement believes they may be in violation of the law. For example, a person is driving erratically on a highway. An officer pulls them over and discovers that they reek of alcohol and have several empty bottles in the passenger seat. Because the driver was driving down a public highway, the officer has the right to search their vehicle and ask them to perform a field sobriety test.

Why the Magic Number Isn’t Magical After All

The “magic number” isn’t all that magical because of how many drivers interpret it. Most people think that as long as they only drink enough to stay below 0.08% BAC, they will not face penalties. However, unless these drivers have access to a breathalyzer, there is no standardized drink to BAC ratio that guarantees that they only measure at 0.08%. This idea is similar to the “one drink per hour” rule which states that as long as the driver sticks to drinking one drink per hour, they cannot be charged with a BAC.

Neither of these rules measure up. The reality is, that everyone has a different tolerance and body chemistry for alcohol. Gender, age, weight, the type of alcohol, and other factors all affect how much is absorbed into the body at any given time. Some people can drink only one drink per hour and be just fine while others may have a high BAC after one drink. These factors are different for everyone, and it’s important to understand that because of these differences, taking a drink is taking a risk if you are driving.

Commercial Drivers

Commercial drivers face even tighter restrictions. If someone operating a commercial vehicle registers as low as 0.04%, they could face a DUI charge. If that charge goes through, it could result in a suspended license. That effectively leaves a commercial driver without a source of income until the suspension expires. The penalties increase tenfold if the commercial driver causes a fatal accident or injures another motorist. Many trucking companies cut corners when drivers are facing legal trouble and may leave their employees high and dry.

If you were charged with driving under the influence, you might want legal representation. If you’d like an experienced DUI attorney from The Wagner Law Firm to evaluate your case, please send us an email or call (304) 461-6000.