West Virginia DUI Deferral Program
The most significant change the 2010 West Virginia legislature brought to West Virginia DUI laws was the enactment of Senate Bill 186, a.k.a. “The DUI Deferral Program.” This section of the WV DUI statute affords a citizen charged with a DUI 1st offense, with an alleged blood alcohol concentration (BAC) of less than .15, the opportunity for their charge to be dismissed in the criminal court and their record of arrest eventually expunged from his or her criminal record. This program also is known as the WV deferral program. (*For a subsequent arrest for DUI anywhere in America the deferral program guilty plea can and will be used to charge you with an enhanced second offense charge both criminally and administratively. It does not “go away” as judges, prosecutors and law enforcement often misleadingly advise.)
WV Deferral Program Eligibility Requirements
The eligibility requirements, procedures and conditions for which this can occur are set forth in 17C-5-2(b) of the WV DUI code, Deferral of further proceedings for certain first offenses upon condition of participation in motor vehicle alcohol test and lock program; procedure on charge of violation of conditions. The eligibility requirements, procedures and conditions are as follows:
- The citizen must have been charged with driving under the influence first offense;
- The alleged BAC must be less than .15;
- The citizen may not have a prior conviction for driving under the influence anywhere in the United States in his or her lifetime;
- The citizen may not have incurred a prior license suspension for driving under the influence anywhere in the United States in his or her lifetime;
- The citizen cannot hold a commercial driver’s license (CDL);
- The citizen cannot also be charged with any other section of the WV DUI Code such as DUI Drugs, DUI w/ Minor, DUI w/ Injury, etcetera.
*A citizen who submits to the secondary chemical test and has a BAC alleged to be > .15 is NOT eligible for the WV Deferral Program. Only those that are alleged to have blown < .15 or to have refused the secondary chemical test are eligible.
**In 2016, the WV Legislature amended the deferral program statute to remove from deferral program eligibility any citizen who “refuses” to submit to breath testing at the police station post arrest. This amendment took effect June 17, 2016. Prior to this legislation, a citizen who “refused” breath testing post arrest and had no prior DUI history of any kind was also eligible for the deferral program. This is NO longer the case. DO NOT REFUSE BREATH TESTING UNDER THE ASSUMPTION YOU WILL BE ELIGIBLE FOR THE DEFERRAL PROGRAM.
How to Request the WV Deferral Program
- The citizen must notify the court in writing within thirty (30) days of his or her arrest of their intention to participate in the “Deferral Program”;
- The citizen enters a conditional guilty plea to the court without the court signing and entering as a conviction (i.e. holds entry of plea);
- The citizen is then placed by the court on a period of conditional dismissal / informal probation while the requirements for successful deferral program completion unfold;
- The citizen waives his or her right to a license administrative hearing;
- The citizen agrees to a fifteen (15) day suspension of driving privileges (no work permit allowed during the period of revocation);
- The citizen agrees to a period of one hundred and sixty-five (165) days of interlock installation in his or her vehicle immediately following the 15 day revocation;
- Upon successful completion of the 15 day suspension and 165 day interlock installation, coupled with completion of the required DUI safety and treatment program, the citizen then becomes reinstated by the WV DMV and may motion the court for a dismissal of the DUI 1st offense charge;
- The motion for dismissal must be supported by an affidavit from the citizen themselves and by certification from the WV DMV that the citizen successfully completed the Motor Vehicle Alcohol Test and Lock Program (i.e. the interlock / blow tube installation period);
- A copy of the motion must be served on the prosecuting authority;
- The prosecuting authority has thirty (30) days to object in writing to the court with a copy served on the citizen or citizen’s noticed counsel;
- The court shall hold a hearing in open court to determine the merit of any objection to dismissal of the DUI 1st criminal charge;
- Upon the passing of one (1) year from the date of dismissal by the Court of the DUI 1stoffense charge, the citizen shall present motion to the same trial court for an Order Expunging his or her arrest from all official records related to their arrest;
- The prosecuting authority has thirty (30) days from receipt of the expunction motion to object in writing with the court with a copy served on the citizen or citizen’s noticed counsel;
- The court shall hold a hearing in open court to determine the merit of any objection to the order of expunction;
- The order for expunction shall be forwarded to the clerk of the county of jurisdiction where the record of arrest and fingerprint card destruction gets formally expunged from the database.
- The citizen must not violate any terms and conditions of the Interlock Installation agreement during the 165 day period of vehicle installation;
- If a violation is alleged by motion of the prosecuting authority, via notice from the WV DMV, the court shall bring the citizen before them for a hearing on the allegation(s);
- If the court finds that a violation has occurred, the court may terminate the deferral program and enter the original conditional plea as an actual permanent conviction (i.e. proceed to adjudication);
- The citizen may not incur a subsequent violation of this article while the deferral program is pending;
- A citizen is only eligible for the deferral program one time;
- The expunging of the citizen’s record only applies to one’s criminal record;
- The expunction does not apply to the licensee’s driving record (so that if the citizen ever gets another DUI arrest, there will be notice to all parties of that individuals lack of eligibility for the deferral program);
- If the citizen has a prior felony conviction he or she is eligible for the deferral program up to the point of dismissal of the criminal charge by the court but not expunction from record entirely;
- The citizen may not be prosecuted or held liable for perjury, false swearing or otherwise giving a false statement as to the arrest itself once the expunction motion has been granted, so ordered and entered.
Other key aspects of the 2010 DUI statute amendments are as follows:
- A No Contest plea to a DUI offense in the criminal court is not a bar to the citizen still having a right to challenge the suspension of his or her driving privileges at the separate license administrative hearing (*the old law took away the citizen’s right to still have their DMV hearing upon entry in the criminal court of a no contest plea);
- A guilty plea is the only form of plea that will take away the citizen’s right to a license administrative hearing, with the underlying license suspension penalty then being enforced without right to a license hearing;
- The State must establish that the arrest of the citizen was lawful at the license administrative hearing in order for a license suspension to be upheld (*the old law removed the lawful arrest requirement);
- Any determination by the Department of Health and Human Resources (DHHR) that the citizen is indigent for purposes of subsidized participation in the safety treatment program (i.e. the license classes) shall also apply to the motor vehicle alcohol test and lock program (i.e. the blow tube installation costs);
- The creation of a special revenue account known as the Department of Health and Human Resources Safety and Treatment Fund with a one-time transfer of monies into the fund, the granting of rule making authority, control and use of the fund by the DHHR;
- The creation of the Office of Administrative Hearings within the Department of Transportation to take over from the DMV control of WV license administrative hearings;
- The appointment of a Chief Hearing Examiner;
- The providing for the organization and jurisdiction of the Office of Administrative Hearings;
- The setting out of hearing procedures (i.e. the State must prove their case beyond a preponderance of the evidence with the rules of evidence being applied and that of a lawful arrest foundation needing be established); and,
- The providing for the transition of the license administrative hearing process from the Division of Motor Vehicles to the Office of Administrative Hearings (*The DMV no longer controls the license administrative hearing process or the decision making authority on the outcome of any license administrative hearing).