West Virginia DUI Deferral Program

What is the WV DUI Deferral Program?

In 2010, the West Virginia DUI law enacted Senate Bill 186, “The West Virginia DUI Deferral Program” which grants a citizen charged with first-offense DUI – with an alleged BAC of less than .15% – the opportunity to have their charges dismissed in the criminal court and their record of arrest eventually expunged.

Keep in mind that for a subsequent DUI arrest 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.

If you have been arrested for DUI for the first time and your BAC was below 0.15%, consult with The Wagner Law Firm. West Virginia DUI attorney Harley Wagner can advise you accordingly and determine if you may be eligible for the deferral program.

Contact him online or call (304) 461-6000 to learn more. Harley serves clients in Berkeley, Jefferson, and Monongalia counties and throughout West Virginia.

WV DUI 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.

To be eligible for the deferral program:

• The citizen must have been charged with driving under the influence for the first time
• 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 With a Minor in the Car, DUI with Injury, etc.

How to Request the WV DUI Deferral Program

There is a very specific process to follow if you wish to be admitted to the DUI deferral program.

You must:

1. Notify the court in writing within 30 days of your arrest of your intention to participate in the Deferral Program
2. Enter a conditional guilty plea to the court without the court signing and entering as a conviction
3. Complete a period of conditional dismissal/informal probation while the requirements for successful deferral program completion unfold
4. Agree to a 15-day suspension of driving privileges (no work permit allowed during the period of revocation)
5. Agree to a period of 165 days of ignition interlock installation in your vehicle immediately following the 15-day revocation
6. Become reinstated upon successful completion of the 15-day suspension and 165-day interlock installation, coupled with completion of the required DUI safety and treatment program – from here, you may motion the court for a dismissal of the first-offense DUI charge
7. Support your motion with an affidavit certifying that you successfully completed the Motor Vehicle Alcohol Test and Lock Program (i.e. the interlock/blow tube installation period)
8. Serve the prosecuting authority with a copy of the motion

From here, the prosecuting authority has 30 days to object in writing to the court with a copy served on you or your counsel. The court will hold a hearing in open court to determine the merit of any objection to dismissal.

After one year from the date of dismissal by the Court, you must present motion to the same trial court for an Order Expunging your arrest from all official records related to your arrest. The prosecuting authority has 30 days from receipt of the expunction motion to object in writing. The court will hold another hearing in open court to determine the merit of any objection to the order of expunction.

A successful order for expunction will 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.

There are a few conditions for successful deferral:

• 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 individual’s 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.

Contact West Virginia DUI attorney Harley Wagner anytime to learn about the DUI deferral program and if it is right for you. Call (304) 461-6000.