Driving under the influence (DUI) is a serious offense across the United States, and each state has its own set of laws and regulations to tackle this issue. West Virginia is no exception, with strict DUI laws in place to ensure public safety. One question that often arises in this context is whether individuals can refuse a breathalyzer test when pulled over by law enforcement. This page aims to shed light on the specific regulations in West Virginia regarding breathalyzer tests and the implications of refusal.
Understanding West Virginia’s Implied Consent Law
West Virginia operates under an implied consent law, meaning that by obtaining a driver’s license, individuals implicitly agree to submit to chemical tests, including breathalyzer tests, if suspected of driving under the influence. The rationale behind this law is to deter impaired driving and promote road safety.
When law enforcement has reasonable grounds to believe that a driver is under the influence of alcohol or drugs, they have the authority to request a breathalyzer test. Refusing to comply with this request can result in serious consequences, as outlined by West Virginia’s implied consent law.
Consequences of Refusing a Breathalyzer Test
Refusing a breathalyzer test in West Virginia triggers both administrative and criminal consequences. It’s important for drivers to be aware of these repercussions to make informed decisions in the heat of the moment.
Administrative Consequences
One of the immediate consequences of refusing a breathalyzer test is the suspension of your driver’s license. The West Virginia Department of Motor Vehicles (DMV) has the authority to administratively suspend your license for a specified period, even if you are later found not guilty of DUI in criminal court. The duration of the suspension may vary based on prior offenses and the specific circumstances of the case.
Criminal Consequences
In addition to administrative penalties, refusing a breathalyzer test can have criminal implications. While the prosecution might not have direct evidence of your blood alcohol content (BAC), the act of refusal can be used against you in court. Prosecutors may argue that your refusal implies guilt and may present it as evidence during DUI proceedings.
The Right to Refuse: Is it Absolute?
Despite the implied consent law, individuals do have the right to refuse a breathalyzer test in West Virginia. However, it’s crucial to understand that exercising this right comes with consequences. The choice to refuse should be made carefully, considering the potential impact on your driving privileges and legal standing.
It’s important to note that law enforcement officers are required to inform individuals of the consequences of refusal. Failing to provide this information can result in certain legal defenses that may be explored with the assistance of a knowledgeable attorney.
Challenging the Basis for the Stop
In some cases, challenging the basis for the traffic stop can be a viable defense strategy. If law enforcement lacked reasonable suspicion or probable cause to pull you over in the first place, it may weaken the prosecution’s case. An experienced attorney can thoroughly review the circumstances leading to the stop and determine if any violations of your rights occurred.
Navigating the Legal Process
Once you’ve made the decision to refuse a breathalyzer test and find yourself facing DUI charges in West Virginia, it’s essential to understand the subsequent legal process. Navigating the complexities of the legal system can be overwhelming, but having a basic understanding of what to expect can help you make informed decisions moving forward.
Arrest and Booking
Following your arrest for suspicion of DUI and refusal to take a breathalyzer test, you will likely be taken into custody. The arresting officers will complete the booking process, which involves recording personal information, taking fingerprints, and documenting the charges against you.
Arraignment
The next step in the legal process is the arraignment, where you will be formally informed of the charges against you. It’s crucial to have legal representation at this stage to ensure that your rights are protected. During the arraignment, you will be asked to enter a plea, and the court will set bail if applicable.
Pre-Trial Proceedings
Before the trial, there may be pre-trial proceedings where your attorney can file motions to challenge evidence or request certain legal actions. This is a critical phase where your legal team can work to build a strong defense strategy based on the specific details of your case.
Discovery and Evidence
The discovery process allows your attorney to obtain and review the evidence that the prosecution plans to present during the trial. This includes police reports, witness statements, and any other relevant documents. Identifying weaknesses in the prosecution’s case becomes essential at this stage.
Possible Defenses
Your attorney will explore potential defenses based on the circumstances of your case. Challenging the validity of the traffic stop, questioning the reliability of the breathalyzer test, or disputing the conduct of law enforcement are common defense strategies. Each case is unique, and an experienced attorney can tailor a defense to fit the specific details of your situation.
Trial
If no plea agreement is reached, your case will proceed to trial. During the trial, the prosecution will present its evidence, and your defense team will have the opportunity to cross-examine witnesses and present counterarguments. The burden of proof rests on the prosecution, and the outcome will be determined by the judge or jury.
Sentencing
If you are found guilty, the sentencing phase will follow. Penalties for DUI convictions in West Virginia can include fines, license suspension, mandatory alcohol education programs, and even jail time, depending on the severity of the offense and any prior convictions.
In West Virginia, the decision to refuse a breathalyzer test is not one to be taken lightly. While individuals have the right to refuse, they should be aware of the significant consequences, both administratively and criminally. Understanding your rights and seeking legal representation when facing DUI charges can make a substantial difference in the outcome of your case.
How Breathalyzer Tests Work
Before diving into the challenges, it’s essential to understand how a breathalyzer test works. When you drink alcohol, it gets absorbed into your bloodstream. A breathalyzer measures the amount of alcohol in the air you exhale and estimates the concentration of alcohol in your blood. This measurement is your BAC, which is what law enforcement officers use to determine if you are legally impaired.
In West Virginia, if your BAC is 0.08 percent or higher, you are considered legally drunk. For commercial drivers, the limit is 0.04 percent, and for drivers under 21, any measurable amount of alcohol can lead to a DUI charge. While these tests are used to prove intoxication, they can sometimes give incorrect readings, which is why challenging them can be so important.
Improper Calibration and Maintenance
One of the first ways to challenge a breathalyzer test is by questioning whether the device was properly calibrated and maintained. Breathalyzer devices need to be regularly serviced and calibrated to ensure that they provide accurate results. If the machine is not properly maintained, it could give an inaccurate reading, which could lead to false evidence being used against you.
West Virginia law enforcement must follow strict procedures for maintaining and calibrating these devices. If there is any proof that the breathalyzer used in your case was not properly maintained, it could be grounds for dismissing the results as evidence. Your attorney can request maintenance records of the device to check whether it was in proper working condition at the time of your test.
Officer Error in Administering the Test
Even if the machine is in perfect working condition, the person administering the breathalyzer test must follow specific protocols to ensure accurate results. If the officer makes any mistakes during the process, the results can be questioned. For example, the officer should wait a certain amount of time between the moment you were stopped and when the test is administered. They should also observe you during this period to ensure that you don’t eat, drink, vomit, or do anything else that could affect the test.
Challenging the Accuracy of the Breathalyzer
Breathalyzer devices are known to have certain limitations. They may not always accurately measure a person’s BAC, especially if other factors are in play. For example, if you used mouthwash or breath fresheners containing alcohol shortly before taking the test, this could cause a false positive result. Additionally, certain foods or beverages may also interfere with the accuracy of the test.
Weather conditions and environmental factors can also impact the results. For instance, exposure to fumes from gasoline, paint thinners, or other chemicals might affect the breathalyzer reading. Your attorney can explore whether any such factors might have played a role in your test and use this information to challenge the validity of the results.
Medical Conditions and Medications
Another way to challenge a breathalyzer test is by arguing that a medical condition or medication caused a false positive. Certain conditions, like acid reflux or GERD, can cause alcohol to move from the stomach into the mouth, which may result in a higher BAC reading than you actually have. Diabetes is another condition that can affect a breathalyzer reading. When a diabetic’s blood sugar is too low, the body produces ketones, which can be mistaken for alcohol by a breathalyzer.
Similarly, certain medications, such as asthma inhalers or cough syrups, contain alcohol or other substances that could affect the accuracy of the test. If you were using any of these medications or have a medical condition that could have skewed the results, this could serve as a defense in your case.
Rising Blood Alcohol Defense
One of the most effective defenses in a DUI case is the rising blood alcohol defense. This defense argues that your BAC was below the legal limit while you were driving, but it increased by the time you took the breathalyzer test. Alcohol takes time to be absorbed into your bloodstream, and your BAC can continue to rise for some time after you stop drinking.
If there was a significant delay between the time you were stopped and when the breathalyzer test was administered, this could lead to a higher BAC reading than what it actually was when you were driving. This argument could weaken the prosecution’s case, as it shows that the breathalyzer results may not reflect your BAC at the time you were behind the wheel.
Chain of Custody Issues
In any legal case, maintaining the chain of custody for evidence is critical. This means that the evidence must be properly handled and documented from the moment it is collected to ensure that it has not been tampered with or contaminated. If the prosecution cannot prove that the breathalyzer results were properly handled and stored, it could be grounds for dismissing the evidence.
Your attorney can investigate the chain of custody for the breathalyzer test results to see if there were any lapses or irregularities. If the evidence was not properly handled, it could be excluded from the case, significantly weakening the prosecution’s argument.
Legal Grounds for Challenging Breathalyzer Test Results
Challenging the results of a Breathalyzer test involves understanding the legal grounds on which these challenges can be made. One of the most common grounds is the argument that the Breathalyzer device was not properly calibrated or maintained. In West Virginia, law enforcement must adhere to specific guidelines for the maintenance and calibration of Breathalyzer devices. Failure to comply with these guidelines can render the test results inadmissible in court. Another potential ground for challenge is the improper administration of the test. Officers are required to follow a strict protocol when administering a Breathalyzer test, including observing the suspect for a certain period before the test to ensure that nothing is ingested that could affect the results. If this protocol is not followed, the validity of the test can be questioned. Additionally, the defense can argue that the test results are unreliable due to the presence of substances or medical conditions that could have affected the BAC reading. These legal grounds, when effectively argued, can cast doubt on the reliability of the Breathalyzer test results and potentially lead to a dismissal or reduction of charges.
What’s the Difference Between the Roadside Portable Breath Test and the Official DUI Breath Test?
First, let me clarify the difference between the portable roadside breath tester (breathalyzer) and the official breath machine test given at the police station after you have arrived at the station. Typically when a police officer pulls you over or stops you at a DUI checkpoint, and you show signs of having been drinking, the officer will pull out a portable handheld breath tester, or breathalyzer, and ask you to blow into it.
This small portable device is used to determine your blood alcohol content level, or BAC level. (This handheld device is strictly voluntary, and a citizen is under NO lawful obligation to agree to take it. You should politely decline to blow into this handheld device.)
If your BAC is 0.08 or higher, or even around the legal limit number (say, .06/.07), the officer will begin a DUI investigation at the roadside. A DUI investigation means that the officer has been trained to ask you certain incriminating questions such as, “Have you been drinking?” and “How much have you had to drink?”
The next part of the investigation usually involves the officer asking you to perform field sobriety tests like the DUI eye test, the walk and turn, and the one leg stand. (Answering questions AND performing field sobriety exercises, just like the portable roadside breath test device above, are strictly voluntary AND the citizen should politely decline to answer any questions or take any tests without talking to an attorney first.)
If after the investigation is complete the officer concludes that you are impaired, he or she will handcuff you and place you under arrest for driving under the influence of alcohol. Then the officer will place you in the back seat of the police car and drive you to the police station.
At the precinct station you will be asked if you are willing to take a second breath test to measure your blood alcohol content. This test is known as the official breath test, and the results of this test are admissible as evidence in court, provided all statutory guidelines on proper administration have been followed – which a well-trained, experienced DUI defense attorney like Harley Wagner will know.
Why Do I Have to Take a Second Breath Test After My DUI Arrest?
So you may ask, “Why do I have to take another breath test if the first test I took at the roadside showed that my BAC was 0.08 or higher, or possible impairment?” (Again noting you should not agree to take this roadside test and by law do not have to take.)
The reason you are asked to blow into an official breath machine at the police station is because the results from the portable breath tester are not admissible as evidence in court, or at least not the actual BAC number. BUT the officer can, under oath, tell the judge or the jury if you “failed” or “passed” the roadside breath test, with the value of this offering result being probable cause to arrest only.
Are the Penalties for WV DUI Refusal the Same for Out-Of-State Drivers?
A caveat to the below article I wrote is that if you hold an out-of-state driver’s license (a license issued in one of the other 49 states), and refuse the official breath machine post-arrest for a DUI in West Virginia, you are looking at the possible suspension of your West Virginia driving privileges for one year. This means you would not be able to legally drive in WV for a full 12 months.
However, this 12-month no driving penalty only applies within the borders of West Virginia. You can still drive legally in your home state and in every other state except WV. Only your home state has the authority to actually suspend your driver’s license. The West Virginia Division of Motor Vehicles does not have the authority to suspend driving privileges in your home state, regardless of what they may have told you.
So, an out-of-state driver charged with a WV first offense DUI refusal would not suffer the same consequence to their home state driver’s license as a citizen licensed in West Virginia for refusal to take the breath machine test at the police station (a.k.a. the official secondary chemical test).
Drivers who are licensed in West Virginia are only looking at three more months of the interlock device if they refuse to blow into the official breath test machine at the police station post-arrest, compared to drivers who comply and provide a breath sample, which if greater than .149 (i.e. .150 or higher) subjects these drivers to a WV license suspension for 45 days, followed by 9 months of mandatory blow and go interlock installation on their vehicle.
This seeming inconsistency also applies to out-of-state licensees who submit to official breath testing with a result alleged to be .150 or higher, versus that of the above refusal scenario where the out-of-state citizen can simply elect to endure a one-year loss of their West Virginia driving privileges.
So Should I Take the Roadside Breath Test AND the Official Second Breath Test?
Should you agree to blow into the portable breath tester at the roadside? NO. Should you agree to blow into the official breath test machine at the police station? NO if you are an out-of-state licensee and/or think there’s a chance the machine could spit out a high BAC number, regardless of whether licensed in WV or another state. (*Regardless of what a law enforcement officer says or threatens, the breath machine at the station is strictly voluntary and the citizen is under no lawful obligation to submit to it. AND NO, you do not get your license automatically taken if you refuse the breath machine at the police station post-arrest.)
If I Refuse Both Breath Tests, What Penalties Do I Face?
A citizen who holds a West Virginia driver’s license, and who refuses to take the official breath test after being handcuffed and arrested for DUI, must choose one of two options: a possible 45-day hard no driving suspension of his or her West Virginia driver’s license, followed by twelve (12) months of interlock (blow and go) installation in their vehicle, or they can choose going a whole year without a driver’s license if they decline to install an interlock.
THIRD OPTION: Any citizen who refuses the official breath test can also elect to go directly onto the interlock for thirteen and one-half months.
In short, unless you have consumed a very modest amount of alcohol, you should NEVER SUBMIT to a West VA official breath test post-arrest on a first offense DUI.
Important Reminder:
Keep in mind that “refusing” any form of testing is an absolute guaranteed constitutional right that all American citizens have, just like we have when being questioned by law enforcement, regardless of what a law enforcement officer may tell you.
Should I Take Any DUI Field Sobriety Tests or Answer an Officer’s Questions?
In a DUI case, roadside field sobriety tests are strictly voluntary, and so is taking the roadside portable breath test. Both the field sobriety exercises and the roadside breath test should always be politely declined.
You should also politely refuse to answer any of the police officer’s questions beyond providing your full legal name and home address. And don’t forget to ask to call your DUI attorney, Harley Wagner, when allowed to do so.
The following WV DUI refusal article was initially published in the Spring of 2016:
“Refuse No More West Virginia!”
As of 12:01a.m. on June 10, 2016 a citizen arrested for a DUI 1st offense in West Virginia, and who “refuses” secondary breath testing (i.e. refuses to blow into the official breath machine) or blood testing at the police station post-arrest, will no longer be rewarded with the option of entering into the West Virginia DUI Deferral Program. Completion of the deferral program requirements can result in the citizen’s drunk driving case being fully dismissed, and the record of arrest fully expunged (removed permanently).
In 2010 the West Virginia legislature enacted WV Code 17C-5-2b, commonly referred to as “the deferral program.” The essence of this DUI legislation was to create a law whereby a citizen arrested in West Virginia for driving under the influence first offense can enter into a deferral program, and upon the program’s completion can eventually get his or her drunk driving charge fully dismissed, and their record of arrest subsequently expunged (removed).
To be eligible for the WV deferral program, a citizen must meet the following requirements:
- The citizen submits to the official breath test at the police station post-arrest.
- The official breath test result shows an alleged blood alcohol concentration (BAC) result of .149 or less.
- The citizen has no prior DUI convictions or suspensions anywhere in the United States.
The procedure for achieving this result is that the citizen enters a conditional guilty plea to the first offense charge that the court holds and does not enter. From there, the citizen must successfully complete 165 days of interlock (blow and go) installation, and also must complete the mandated eighteen (18) hours of DUI education (DUI Class) at a WV DMV-approved location.
Upon successful completion of both requirements, the WV DMV issues a correspondence of full license reinstatement and successful program completion. The citizen then returns to the governing court, whereupon the conditional guilty plea is vacated and your case is fully dismissed. One year from the dismissal date, the citizen is eligible to have his or her arrest record expunged, and fingerprint card ordered destroyed.
In essence these actions restore the citizen to the status he or she held prior to being arrested for DUI 1st offense as if never having never been charged – period! If the citizen fails to successfully complete both programs, a conditional guilty plea is entered by the court and the citizen becomes convicted of the offense. This conviction then stays on his or her permanent record for life just like all other types of criminal convictions.
However, the 2010 West Virginia legislature failed to recognize when enacting this legislation into law the scenario of when a citizen “refuses” to provide an official breath sample post-arrest, which is the case with a significant number of DUI arrests annually, both in WV and nationwide.
So, when this refusal scenario presented itself, the refusing citizen’s case got looped back into the part of the deferral program statute of “non-aggravated first offense,” which is a BAC of .149 or less, and thus would be “approved” for deferral program eligibility.
This meant that if a citizen with no prior DUI history in his or her lifetime was arrested for DUI in West Virginia and refused to provide an official breath sample post-arrest, he or she would be 100% guaranteed to be eligible for the WV Deferral Program no matter their level of intoxication (severe, moderate or otherwise), and thus 100% guaranteed to have their DUI charge fully dismissed, and their record of arrest fully expunged.
If the citizen cooperated with law enforcement and agreed to blow into the official breath machine post-arrest, and the alleged blood alcohol content result was a .150 BAC or higher, then the citizen would not be eligible for the WV Deferral Program. Thus, they would not get their case fully dismissed, nor their record of arrest fully cleared.
The only difference between a driver who refuses secondary testing and a driver who agrees to blow into the official breath test machine and registers a BAC result of .149 or less, is that the citizen who agrees to blow would have to have the interlock/blow and go device in their car for twelve (12) months instead of 165 days. However, case dismissal and complete eradication of the record of arrest would be exactly the same for both drivers.
So you may ask yourself, “Why in the world would a citizen who gets arrested for DUI in West Virginia ever agree to provide an official breath sample post-arrest if he or she is 100% guaranteed to have their case dismissed and record of arrest expunged if they refuse the second breath testing?” Exactly!
Thus, for the almost six (6) years now that this law has been in effect in the state of West Virginia, hundreds upon hundreds of citizens who refused breath testing have been rewarded with a dismissal of their DUI cases, and expunction of their DUI arrest records as if no arrest ever occurred in the eyes of society.
As of June 10, 2016 this is no longer the case.
The 2016 West Virginia legislature, with House Bill 2665, closed this loophole in the 17C-5-2b deferral program statute by barring a citizen from eligibility into the program who refuses secondary chemical testing (i.e. refuses to blow into the official breath machine post-arrest at the police station).
For five (5) plus years now, The Wagner Law Firm, West Virginia’s only exclusive DUI defense firm, has made clear to citizens nationwide through the firm’s website, blogs, social and print media, and radio etc. that “refusal equals reward” on a first offense DUI in West Virginia.
Before the new 2016 legislation eliminated this legal loophole, WV DUI lawyer Harley Wagner pointed out the utter foolishness of a citizen agreeing to provide law enforcement with an official breath sample post-arrest when the citizen is 100% guaranteed to have his or her DUI case fully dismissed, and their arrest record expunged if they refuse to provide a second breath sample to law enforcement.
If you find yourself in a situation where you have refused a breathalyzer test or are facing DUI charges in West Virginia, The Wagner Law Firm is here to help. Our team of experienced attorneys is dedicated to protecting your rights and providing the best possible defense. Contact us today for a confidential consultation and take the first step toward safeguarding your future.