Behavioral Indicators Can Lead to DUI Charges 
It’s crucial to understand that law enforcement officers are trained to look for a variety of signs that suggest a driver may be impaired. In many instances, you can still be arrested and charged with a DUI based on behavioral indicators even if a breath test isn’t part of the equation. Signs of Impairment Observed by Officers
When an officer stops a driver under suspicion of driving under the influence, they don’t just rely on a breath test to determine impairment. Instead, they will observe certain behavioral cues that can indicate whether or not a driver is under the influence of alcohol or drugs. These indicators are often the first step in a DUI case and can include:- Slurred Speech: One of the most common signs of impairment is difficulty speaking clearly. Officers may note that you struggle to form words, or your speech sounds disjointed or unclear.
- Bloodshot or Watery Eyes: Red or watery eyes are often associated with alcohol intoxication or the use of drugs. Officers will carefully observe your eyes during the stop.
- Erratic or Slow Movements: When you are intoxicated, your coordination can be significantly impaired. Unsteady movements, difficulty walking, or fumbling with your car’s controls could all be signs that the officer might use to charge you with a DUI.
- Odor of Alcohol: The smell of alcohol on your breath or clothing is a strong indicator of recent consumption. Even if you are under the legal limit for blood alcohol content (BAC), the scent can still be used to support a DUI charge.
- Inconsistent Driving Behavior: If your driving is erratic—such as swerving, running red lights, or failing to signal—you may be pulled over for a DUI investigation. Even without a failed breath test, an officer can argue that your driving behavior was unsafe due to impairment.
Harley Wagner
Defending West Virginia Residents for over 24 Years
Refusing the Breath Test in West Virginia
Under West Virginia’s implied consent law, by operating a vehicle on public roads, you are agreeing to submit to chemical testing (such as a breathalyzer) if asked by a law enforcement officer. However, if you refuse the test, there are serious consequences—whether or not you are impaired at the time.Consequences of Refusal
Even if you believe you’re sober, refusing to take a breath test can still lead to a DUI charge. In fact, refusing a breathalyzer test in West Virginia will lead to:- License Suspension: A refusal can result in an automatic suspension of your driver’s license. The length of the suspension depends on whether it is your first refusal or if you have previous refusals on your record.
- DUI Arrest: While a breath test refusal does not guarantee a DUI conviction, it is still a strong enough piece of evidence for law enforcement to press charges. The officer may view your refusal as an admission of guilt or suspicion of impairment.
What Happens After Refusal?
If you refuse the breath test, the officer will likely continue to investigate and may arrest you for DUI based on the suspicion of impairment, and your case will proceed to court. In many cases, the prosecutor will use your refusal to argue that you were trying to avoid a test that would have proven you were impaired.
Harley and Heather gave me peace of mind as they walked me through the process of my DUI. Heather was so quick to answer even the smallest and probably irrelevant questions I had. I was extremely nervous to walk in the courtroom, but Harley made sure I was in and out of there in no time with the best deal I could think of. My DUI charge was reduced to a speeding ticket and some online DUI classes. Would absolutely recommend Harley and Heather if you’re ever in need of a lawyer.”
- Antea Jarazi
The Wagner Law Firm was amazing from beginning to end dealing with my case. This was my first time ever dealing with anything like this and they helped me tremendously and answered all my questions super fast. We got the best outcome possible for my case and I will be recommending Harley and Heather to anyone that’s ever in my situation."
- Savanna Cummings
Harley and Heather do not stop and are excellent at always keeping their clients up to date on the status of their case and never left wondering. They do all the work and are very well connected throughout the state. I will forever be grateful to both Harley and Heather for what they did for me,,,, they aren’t just another law firm, they are great people who truly care. Thank you."
- Clint Anderson
Field Sobriety Tests Can Be Used to Build a DUI Case
In addition to breath tests, law enforcement officers are trained to use field sobriety tests (FSTs) to assess a driver’s level of impairment. These tests are designed to test your coordination, balance, and ability to follow instructions. While you may not have failed a breathalyzer test, officers can still arrest you based on your performance in these tests.Types of Field Sobriety Tests
Officers often use a combination of standardized tests to evaluate impairment. The most commonly used tests include:- Horizontal Gaze Nystagmus Test (HGN): This test involves the officer asking you to follow a moving object with your eyes. If your eyes exhibit jerking movements as you track the object, it could indicate impairment.
- Walk-and-Turn Test: This test requires you to walk heel-to-toe along a straight line, turn around, and walk back. Difficulty with balance, poor coordination, or failure to follow the instructions can suggest impairment.
- One-Leg Stand Test: In this test, you are asked to stand on one leg while counting out loud. If you struggle to maintain your balance or sway, it may be used as evidence of impairment.
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Drug Impairment and DUI Charges
A breath test may show that your blood alcohol content is below the legal limit, but you can still be charged with a DUI if you are impaired by drugs. In West Virginia, impairment due to drugs—whether prescription, over-the-counter, or illegal substances—can lead to a DUI charge.How Officers Identify Drug Impairment
Officers are trained to recognize signs of drug use. They may observe physical symptoms such as:- Dilated Pupils
- Slow Reaction Time
- Odd or Confused Behavior
- Unusual Speech Patterns
Driving Under the Influence with a Commercial Driver’s License (CDL)
If you hold a commercial driver’s license (CDL), the rules surrounding DUI offenses are much stricter than those for non-commercial drivers. In West Virginia, the legal BAC limit for CDL holders is 0.04%—half the limit for non-commercial drivers. This means that even if your BAC is under the standard legal limit of 0.08%, you can still be charged with DUI if your BAC is 0.04% or higher.Case Results
How This Affects DUI Charges
If you are stopped while driving a commercial vehicle and are suspected of being under the influence, you may still be arrested and charged with DUI even if you don’t fail a breath test. Commercial drivers are held to a higher standard due to the nature of their work and the increased risk involved in driving large vehicles.DUI and the Per Se Limit: What You Need to Know
In West Virginia, a per se DUI refers to driving with a blood alcohol concentration (BAC) over the legal limit of 0.08%. However, even if your BAC is under 0.08%, you can still face DUI charges if you show signs of impairment. A breath test result below the legal limit doesn’t necessarily mean you’re in the clear.The Impact of Other Evidence
Other evidence—such as erratic driving, poor performance on field sobriety tests, or even witness testimony—can contribute to the case against you. Officers will use a combination of these elements to determine whether or not a DUI charge is appropriate.Defending Against DUI Charges in West Virginia
If you find yourself facing DUI charges in West Virginia, even without failing a breath test, it is essential to have an experienced DUI defense attorney by your side. A skilled attorney will examine all aspects of the case, including:- Challenging the validity of field sobriety tests.
- Disputing the officer’s observations and conduct during the stop.
- Investigating any errors in the breathalyzer test or the refusal consequences.