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Implied Consent in West Virginia

What is Implied Consent?

Implied consent laws are little-known state laws that were enacted to force drivers in West Virginia who are arrested for DUI to submit to a preliminary breath test to reveal how much alcohol or drugs are in their system. It was originally based on the concept that by using the roads of West Virginia, you had given your consent to be tested if you were lawfully arrested and suspected of driving under the influence.

Today, the state’s implied consent is written into your driver’s license application and it tells you about this “obligation” to submit to testing or potentially lose the right to drive in West Virginia. It is important for all drivers to understand implied consent.

If you have questions about implied consent in West Virginia, contact The Wagner Law Firm at (304) 461-6000.

What Happens If I Refuse Testing?

If you refuse blood, breath, or urine testing after your arrest, you could face license revocation. Secondary BAC tests may only be conducted with either your consent or a warrant. If you've refused, you must request a refusal hearing within 30 days of being arraigned, bonded, and released. Failure to do so results in up to six months in jail, a fine of $100 to $500, and either the suspension of your license for one year or thirteen and one-half months of driving with an ignition interlock system installed in your vehicle.

I Refused to Take a Chemical Test. What Does that Mean for Me?

After being arrested for a DUI, a secondary chemical test to determine your BAC level may only be administered with your consent or a warrant. These tests include a breath test, blood test, or urine test. If you refused any one of these tests, you will face harsher penalties.

Within 48 hours of your refusal, the officer will present a written and signed statement to the court and the Commissioner of the Division of Motor Vehicles declaring that:

  • They had probable cause to believe you were operating a vehicle while intoxicated
  • They lawfully arrested you
  • You refused the test
  • You received a verbal and oral warning about the consequences of refusing the test

After being released, you need to request a refusal hearing, and you need to do so quickly. Contact The Wagner Law Firm for assistance doing so.

Can I Consult with a DUI Attorney Before Deciding to Take a Chemical Test?

In West Virginia, you do not have the right to speak with an attorney before deciding whether or not to submit to a chemical test. The police officer is not legally required to let you call an attorney during or after your arrest for impaired driving. Once at the jail, you will be able to call your lawyer. If you call Harley Wagner, he can help you get released from jail faster.

If My Attorney Files the Implied Consent Appeal, Can I Keep Driving?

It depends. Under DUI laws enacted in 2016, a “DUI refusal” to submit to testing under West Virginia implied consent laws is at special risk. This is even more critical if the arrested driver is a repeat offender.

Discuss Implied Consent Laws with Harley Wagner

If you need help you save your license and obtain a favorable outcome in your DUI case, Harley Wagner is a DUI specialist and highly rated criminal defense attorney who can help. The Wagner Law Firm – serving Berkeley, Jefferson, and Monongalia counties and all of West Virginia – can guide you down the path to a positive resolution.

Questions about your case? Contact us by dialing (304) 461-6000. Your case assessment is free of charge.

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.
  • DUI Felony 3rd Offense (Berkeley Springs, WV) Not Guilty
  • DUI Felony Fleeing / Attempted Murder by Vehicle (Romney, WV) Dismissed
  • .08 DUI Causing Death case (Clarksburg, WV) Dismissed
  • .14 Felony DUI Causing Death Case (Martinsburg, WV) Reduced to Misdemeanor
  • DUI 1st (Morgantown, WV) Dismissed
  • DUI 1st (Morgantown, WV) Dismissed
  • DUI 1st (Martinsburg, WV) Dismissed
  • DUI 1st (Morgantown, WV) Dismissed
  • DUID 1st (West Virginia) Dismissed
  • DUI 1st (St. Mary’s, WV) Dismissed

Why Trust Harley Wagner?

  • Over 21 Years of Experience
  • More Than 3,000 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
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