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Martinsburg DUI Defense Attorney

Defending Berkeley County Residents from DUI Charges

You’ve been arrested and charged with a DUI. Bad luck strikes and now you have to deal with some serious consequences. According to DUI laws and drunk driving code, you could lose your driver’s license. You may even pay big fines or have to attend alcohol education classes.

But the worst part is going to jail – and it can happen even for a first-time offender. But DUI cases aren’t a slam dunk for the prosecution, despite the evidence that seems stacked against you. In fact, there are many ways to defend your DUI case if you enlist the help of an experienced attorney. Martinsburg DUI lawyer Harley Wagner can help you build a strong defense.


Arrested for DUI? Contact The Wagner Law Firm online or call (304) 461-6000 for a free case evaluation.


Typical Penalties for a DUI Conviction in WV

The penalties for DUI conviction are extremely harsh and can include a return trip to jail. That’s why it’s imperative that you get help from an experienced Martinsburg DUI lawyer like Harley Wagner. He can defend you against both aspects of the singular court system that handles DUI cases in West Virginia: criminal penalty and license penalty.

Penalties for a DUI in criminal court depend upon your DUI history, but even a first-time offender can spend time in jail. If this is your first DUI, there is a maximum punishment of 6 months in jail and a fine of as much as $1,000, as well as either the temporary loss of your driver's license or interlock installation in your vehicle.

Penalties get more serious for a second offense. You could end up in jail for a year with fines as high as $3000. A third offense means jail time of up to five years and fines of $5000. The three-time offender will also either lose their license permanently or have an ignition interlock system in their vehicle for four years.

Difference Between Non-Aggravated DUI & Aggravated DUI

There are three types of first-offense DUI charges: if your BAC is .15 or lower, that is called non-aggravated, if it is higher than .15, the charge will be aggravated DUI, and if you refuse to have your BAC recorded, it is considered an offense with refusal of breath machine.

A non-aggravated DUI means a punishment of up to six months in jail and a mandatory minimum fine of $100. Additionally, the driver will either lose their driver's license for six months or endure 140 days with an ignition interlock system in their vehicle.

An aggravated DUI carries a minimum 24 hours of mandatory jail time up to a maximum six months and a fine of $200 to $1,000. The driver will again face consequences regarding their future driving privileges by either losing their license for a year or having an ignition interlock system for 315 days.

If the offender refuses to use the breath machine, they’re susceptible to up to six months in jail, a fine up to $500, and their choice of either loss of driver’s license for one year or thirteen and one-half months with interlock installation in their vehicle. To avoid this charge, the driver must request a refusal hearing within 30 days of being arraigned, bonded, and released.

All driver’s license suspensions require completion of the DUI Safety and Treatment Program as component for full reinstatement of the driver’s license. Remember, these punishments are for a first offense. If you have more DUIs in your past, penalties become even more severe.

In addition to the criminal case, you also have to deal with driver’s license consequences following your DUI arrest. This is why it is so important to get a skilled Martinsburg DUI attorney on your side immediately. West Virginia DUI laws are among the toughest in the country. You have a limited amount of time to save your driver’s license following a DUI arrest.

Can I Lose My License Even If I Win My Criminal Case?

Refusing the breath machine at the police station post arrest could lead to lengthier consequences for the driver if they fail to request a refusal hearing within 30 days from being released. This recent modification to West Virginia DUI laws requires either citizens to give consent or for the obtainment of a search warrant to draw blood. Without either consent or a warrant, no testing can be done. If you refuse a test, it is imperative that you call Harley immediately to ensure a refusal hearing is completed on time.

According to West Virginia’s DUI laws, the state can prosecute a DUI case in one of two ways. The prosecutor can present evidence that the driver was impaired by drugs or alcohol by using videotaped driving patterns, field sobriety tests, physical appearance, and chemical tests. Remember, the state does have to use evidence of chemical testing to support a conviction.

On the other hand, prosecutors can base their case on the chemical test results alone. That means the only requirement for conviction is whether the driver was above the legal alcohol limit of .08% at the time of driving.

Don’t end up in jail. Don’t get saddled with thousands of dollars in fines. Don’t lose your license. Instead, talk to Harley Wagner about how you can fight these harsh DUI penalties.

Factors that Affect BAC Levels

Police officers use either a breath or blood test to measure a DUI suspect’s blood alcohol content (BAC) to determine the amount of alcohol in the person’s bloodstream. BAC is generally based on how much alcohol an individual consumes over a specific period.

Here is a list of several factors that affect BAC levels:

  1. Gender – Since women have lower water content—and fewer enzymes that metabolize alcohol—compared to men, their BAC levels are generally higher after consuming alcohol at the same rate as their male counterparts.
  2. Age – The intoxicating effects of alcohol become more pronounced when you grow older.
  3. Weight – More weight often means more water in the body, which dilutes the effects of alcohol.
  4. Consumption rate – The faster you drink, the faster your BAC will increase.
  5. Strength of alcoholic beverage – The higher the alcohol percentage, the more alcohol will enter your bloodstream after consumption.
  6. Food – Since food slows how much alcohol is absorbed in your bloodstream by keeping it in your stomach, drinking on an empty stomach will result in a higher BAC compared to someone who has eaten prior to drinking.
  7. Mixed beverages – The absorption process slows down when water or fruit juice is mixed with alcohol, while carbonated drinks will create a more rapid rise in BAC.
  8. Medications – From cough medicines to prescription drugs, medication combined with alcohol can have an adverse effect on the body by making the intoxicating effects of alcohol more pronounced.
  9. Fatigue and stress – A person’s emotional state can affect how the body processes alcohol. For example, stress can slow the absorption rate of alcohol by diverting it the stomach and small intestines, rather than the bloodstream. When a stressed individual eventually relaxes, he/she will experience a surge in BAC levels.

How the Police Detect Intoxicated Motorists

The National Highway Traffic Safety Administration (NHTSA) created a list of various “cues” that help police officers determine where a driver might be under the influence of alcohol or drugs. These cues can be visually observed from a distance, specifically when law enforcement is following a suspected drunk driver.

The following are common types of visual cues police look out for to make a traffic stop:

  • Difficulty maintaining proper lane position – Drivers who have trouble staying within their own driving lane or moving between lanes is an indication of intoxication. Common examples of this driving behavior include swerving, weaving across different lanes, drifting towards one side of the road, or making an extremely wide turn.
  • Judgment issues – Since driving a vehicle involves making countless decisions, motorists must always be alert and properly judge speed and distance. When a person is under the influence, they are more than likely to take risks. Common examples of judgment issues include making erratic or unsafe lane changes, making illegal turns, driving off-road, or tailgating.
  • Awareness problems – Being alert also involves noticing current road and traffic conditions, such as traffic signals and signs, as well as the flow of traffic itself. Intoxicated drivers lack the awareness to recognize these conditions. Common examples of awareness problems include delayed responses to traffic signals and signs, using the wrong turn signal to change lanes to make a turn, driving in the dark without turning on the headlights, or driving in the wrong direction.
  • Acceleration and braking trouble – Difficulties judging distance and speed can lead to speeding and braking issues. Common examples of acceleration problems include speeding at least 10 mph more than the posted speed limit, sudden acceleration for no reason, and failure to maintain a consistent speed. Common stopping problems include stopping well before the intersection or crosswalk, making jerky or short stops, or stopping at an odd angle.

Making any of these movements or committing a traffic stop is considered reasonable suspicion, which is enough for law enforcement to make a traffic stop.

Do Not Make These Mistakes After a WV DUI Arrest

Just because you have been arrested for a DUI in West Virginia doesn’t mean that you are guilty. You need to take immediate action to obtain the most favorable results in your case. However, there are also certain things you should avoid to not cause further legal trouble.

The following are the most common mistakes people make after a WV DUI arrest:

  • Not hire a lawyer – A first-time DUI in Virginia is punishable by a maximum jail term of six months, a fine of up to $1,000, and driver's license suspension or ignition interlock installation. Since you are not familiar with the criminal justice system, you could be vulnerable to serving the highest penalties allowed by law. Your attorney can protect your rights and best interests throughout the legal process and help you get your charges dismissed or reduced.
  • Talk to law enforcement – As soon as you are arrested, the police officer should read you your Miranda rights, informing you of your right to remain silent. While you may believe you can talk your way out of the situation, anything you say can be used as evidence in court. Do not speak to law enforcement until you discuss your case with your attorney.
  • Plead guilty – Even if you blew over the legal limit of .08 percent, pleading guilty means that your lawyer loses the opportunity to take more time to investigate your case and determine if law enforcement make procedural mistakes during error or if there are any weaknesses in the prosecution’s case.
  • Drive while your license is suspended – Whether you failed the chemical test or refused to take it, your driver’s license will be automatically suspended. However, since many people rely on their vehicles to commute to work, make important appointments, and perform household tasks, they often continue driving despite the suspension. If you are caught driving with a suspended license, you could face separate charges on top of your pending DUI case.

If you have any more questions about DUI issues, visit our FAQ page.


Facing charges for driving under the influence in West Virginia? Contact us at (304) 461-6000 today.


The Wagner Law Firm serves clients in Berkeley, Jefferson, and Monongalia counties and throughout West Virginia.

Case Results

With decades of legal experience and over 800 hours of DUI defense training, Harley Wagner knows how to fight DUI charges effectively. Read The Wagner Law Firm's recent case results to learn more about Harley's past successes.
  • Dismissed .08 DUI Causing Death case (Clarksburg, WV)
  • Reduced to Misdemeanor .14 Felony DUI Causing Death Case (Martinsburg, WV)
  • Charge Reduced Aggravated DUI 1st (Morgantown, WV)
  • Dismissed DUI 1st (Martinsburg, WV)
  • Dismissed DUI 1st (Morgantown, WV)
  • Dismissed DUI 1st (Morgantown, WV)
  • Dismissed DUI 1st (Morgantown, WV)
  • Dismissed DUI 1st (St. Mary’s, WV)
  • Dismissed DUI 1st (West Virginia)
  • Not Guilty DUI 1st. (Martinsburg, WV)
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Why Trust Harley Wagner?

  • Over 20 Years of Experience
  • More Than 2,500 DUI Cases Handled
  • Performed 800 Hours of DUI Defense Training
  • Award Winning Representation
  • Faculty Member at DUI Defense Lawyers Association
  • Author of West Virginia's Preeminent DUI Book: West Virginia DUI Defense: The Law and Practice
Looking Forward to Helping You

Call 304-461-6000 To Get Started