Is a DUI a Criminal Offense in West Virginia?

If you see those reds and blues in your rear view, it’s bound to cross your mind: is a DUI a criminal offense in West Virginia?

In this blog post, we aim to provide clarity on this crucial issue by delving into the legal intricacies surrounding DUI charges in our state. While the consequences of a DUI conviction can be severe, understanding the nature of the offense is the first step towards navigating the legal process effectively.

Despite the danger, drunk driving happens across the Mountain State. According to the West Virginia Division of Motor Vehicles, there were 5,003 DUI cases across the state in 2023 — and a 60% conviction/deferral rate.

We’ll explore the definition of a DUI under West Virginia law, examine the distinctions between criminal and traffic offenses, and shed light on the potential penalties one may face if convicted of driving under the influence. Additionally, we’ll discuss the strategies that can be employed to safeguard your rights and mitigate the consequences.

Whether you’re grappling with a DUI charge firsthand or seeking to expand your knowledge on this subject, we invite you to join us as we unravel the complexities of DUI law in West Virginia. With our drive and dedication to advocating for our clients, we’re here to provide the guidance and support you need to navigate this challenging legal terrain with confidence.

What is a DUI?

In West Virginia, a DUI — driving under the influence — occurs when an individual operates a motor vehicle while under the influence of alcohol, drugs, or a combination of both to the extent that their normal faculties are impaired. This impairment can manifest in diminished reaction time, impaired judgment, and compromised motor skills, posing significant risks to both the driver and others on the road.

Types of DUI Charges

In West Virginia, DUI charges are categorized based on the frequency and severity of the offense. A first-time DUI is generally treated as a misdemeanor, with potential penalties including fines, a suspended driver’s license, mandatory alcohol education programs, and potentially jail time, depending on the specific details of the case.

A second DUI offense, particularly if it occurs within a decade of the first, is met with more severe consequences. These can include higher fines, extended periods of license suspension, the compulsory installation of an ignition interlock device on the offender’s vehicle, and possibly longer jail terms.

Aggravated DUI charges are levied when there are aggravating circumstances, such as an exceptionally high blood alcohol concentration (BAC), operating a vehicle with a suspended or revoked license, or causing injury or death while driving under the influence. These cases are treated as more severe crimes and can lead to enhanced penalties, including felony charges.

Felony DUI Charges

In West Virginia, a DUI offense can escalate to a felony under certain conditions. A third or subsequent DUI within a typical period of ten years, for instance, is classified as a felony, bringing much harsher penalties including significant fines, long-term imprisonment, and extended revocation of driving privileges. Additionally, if a DUI results in serious bodily injury, defined as an injury posing a substantial risk of death or causing permanent disfigurement or impairment, the charge is elevated to a felony. The most grave of these offenses is DUI causing death, which carries severe punishments including lengthy prison sentences, reflecting the serious nature of the offense.

It’s important to note that felony DUI charges carry long-term consequences beyond the immediate penalties, including a permanent criminal record, difficulty securing employment, and challenges in obtaining certain professional licenses.

Now that you know the various DUI charges, it’s time to find out: is a DUI a criminal offense, or a traffic offense?


Harley and Heather gave me peace of mind as they walked me through the process of my DUI. Heather was so quick to answer even the smallest and probably irrelevant questions I had. I was extremely nervous to walk in the courtroom, but Harley made sure I was in and out of there in no time with the best deal I could think of. My DUI charge was reduced to a speeding ticket and some online DUI classes. Would absolutely recommend Harley and Heather if you’re ever in need of a lawyer.”

- Antea Jarazi


The Wagner Law Firm was amazing from beginning to end dealing with my case. This was my first time ever dealing with anything like this and they helped me tremendously and answered all my questions super fast. We got the best outcome possible for my case and I will be recommending Harley and Heather to anyone that’s ever in my situation."

- Savanna Cummings


Harley and Heather do not stop and are excellent at always keeping their clients up to date on the status of their case and never left wondering. They do all the work and are very well connected throughout the state. I will forever be grateful to both Harley and Heather for what they did for me,,,, they aren’t just another law firm, they are great people who truly care. Thank you."

- Clint Anderson

Traffic Offenses vs. Criminal Charges

Traffic offenses encompass a broad range of violations related to operating a motor vehicle on public roadways. These offenses are typically regulatory in nature and are enforced through traffic citations issued by law enforcement officers. Common examples of traffic offenses include speeding, running a red light, failure to yield, and improper lane changes.

While traffic offenses may result in fines, points on a driver’s license, and potentially increased insurance premiums, they are generally considered less serious than criminal charges. Traffic offenses are adjudicated in traffic court, where the burden of proof is lower, and the penalties are typically less severe compared to criminal proceedings.

Criminal charges, on the other hand, involve violations of state or federal laws that are deemed to be more serious in nature and carry potential criminal penalties, including fines, imprisonment, and probation. Unlike traffic offenses, criminal charges are prosecuted in criminal court, where the accused enjoys certain constitutional rights, such as the right to legal representation, the right to a trial by jury, and the presumption of innocence until proven guilty beyond a reasonable doubt.

Criminal charges encompass a wide spectrum of offenses, ranging from misdemeanors, which are less serious crimes punishable by up to one year in jail, to felonies, which are more serious crimes punishable by imprisonment for more than one year.

Is a DUI a Criminal Offense or a Traffic Offense in WV?

In West Virginia, driving under the influence (DUI) is considered both a traffic offense and a criminal charge, depending on the circumstances of the case. When an individual is arrested for DUI, they may face administrative penalties imposed by the Department of Motor Vehicles, such as license suspension or revocation, in addition to criminal charges brought by the state prosecutor.

A first offense DUI is typically charged as a misdemeanor, while subsequent offenses or DUI incidents involving aggravating factors, such as high blood alcohol concentration (BAC) or accidents causing injury or death, may be charged as felonies.

Regardless of whether a DUI offense is categorized as a traffic offense or a criminal charge, the consequences can be significant and may include fines, license suspension, mandatory alcohol education programs, and even incarceration.

Case Results

DUI Felony 3rd Offense

Not Guilty

DUI 1st

Not Guilty

Aggravated DUI 1st

Charge Reduced

.08 DUI Causing Death

Case Dismissed

DUI Felony Fleeing / Attempted Murder by Vehicle

All Charges Dismissed

.14 Felony DUI Causing Death Case

Reduced to Misdemeanor

DUI Penalties

In West Virginia, the penalties for driving under the influence (DUI) vary based on the specifics of each case. For a basic first offense DUI, where the driver’s blood alcohol concentration (BAC) is between 0.08% and 0.149%, the consequences can include up to six months in jail and fines from $100 to $500. If the BAC rises to 0.15% or higher, the situation intensifies, even for a first offense. Here, the law mandates at least 48 hours in jail, which can extend up to six months, and fines increase to between $200 and $1,000.

For drivers under the age of 21, the threshold for a DUI is much lower. Those caught with a BAC between 0.02% and 0.079% face fines ranging from $25 to $100, although they do not face jail time for this offense. However, if a DUI leads to an injury, the driver could be jailed for a period ranging from 24 hours to a year, in addition to fines of $200 to $1,000.

The gravest penalties apply when a DUI results in a fatality. Such incidents see the driver facing felony charges, with prison sentences ranging from two to ten years and fines from $1,000 to $3,000, reflecting the serious consequences of their actions.

What is a Deferred DUI?

Deferred DUI — also known as deferred adjudication or deferred prosecution — is a legal arrangement that allows individuals charged with DUI to avoid a formal conviction by completing certain requirements outlined by the court. Essentially, it offers defendants an opportunity to undergo rehabilitation, education, or other court-mandated programs in exchange for having the DUI charge dismissed upon successful completion.

Upon successful completion of the court-mandated requirements, the DUI charge will be dismissed, and you will avoid a formal conviction on your record. However, it’s important to note that the DUI arrest may still remain on your driving record.

Is Deferred DUI the Right Choice for You?

Deciding whether to pursue deferred DUI requires careful consideration of your individual circumstances, legal options, and long-term consequences. While deferred adjudication offers the potential for avoiding the immediate penalties of a DUI conviction, it may still entail significant obligations, expenses, and restrictions.

Consulting with an experienced DUI attorney is essential to assess your eligibility for deferred DUI, evaluate the potential benefits and drawbacks, and navigate the legal process effectively. At Wagner Law Firm, we’re dedicated to providing personalized guidance and advocacy for individuals facing DUI charges, helping them explore all available options and make informed decisions tailored to their needs and objectives.

Harley Wagner

Defending West Virginia Residents for over 24 Years

DUI Defense Strategies

There are numerous defense strategies and experienced DUI attorney may deploy if you end up in court. Some methods include:

Challenging the Stop

One common defense strategy in DUI cases involves challenging the legality of the traffic stop that led to the DUI arrest. Law enforcement officers must have reasonable suspicion or probable cause to initiate a traffic stop. If the stop was conducted without proper justification or violated your constitutional rights, any evidence obtained as a result of the stop may be suppressed, weakening the prosecution’s case.

Contesting Field Sobriety Tests

Field sobriety tests, such as the walk-and-turn, one-leg stand, and horizontal gaze nystagmus, are often used by law enforcement to assess a driver’s level of impairment. However, these tests are subjective and prone to errors. Factors such as weather conditions, uneven terrain, and physical or medical conditions can affect performance. Challenging the reliability and accuracy of field sobriety tests can cast doubt on the prosecution’s evidence of impairment.

Disputing Breathalyzer Results

Breathalyzer tests are commonly used to measure blood alcohol concentration (BAC) levels in DUI cases. However, breathalyzer machines are not infallible and can produce inaccurate results due to various factors, including calibration errors, improper administration, or medical conditions such as acid reflux. Challenging the reliability and validity of breathalyzer results through expert testimony or evidence can undermine the prosecution’s case.

Questioning Blood Test Procedures

In cases where blood tests are conducted to measure BAC levels, it’s essential to scrutinize the procedures followed in collecting, handling, and analyzing the blood samples. Errors or deviations from established protocols can compromise the integrity of the test results. By challenging the chain of custody, storage conditions, or laboratory procedures, it may be possible to exclude blood test evidence or raise doubts about its accuracy.

The Rising BAC Defense

This defense argues that at the time of driving, the defendant’s BAC was below the legal limit, but it rose to an illegal level by the time the breathalyzer or blood test was administered. Factors such as the absorption rate of alcohol, recent consumption, or the presence of food in the stomach can contribute to a rising BAC defense.

Mounting a successful defense in a DUI case requires a thorough understanding of the legal complexities and strategic utilization of available defense strategies. Whether challenging the validity of evidence, disputing testing procedures, or raising doubts about impairment, it’s essential to work with experienced legal counsel who can tailor defense strategies to the unique circumstances of your case.

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Advocating For You

Is a DUI a criminal offense in West Virginia? Now you know the answer: yes.

While the severity of the charge and its potential consequences may vary depending on factors such as BAC level, prior offenses, and the presence of aggravating circumstances, the legal ramifications of a DUI conviction — being a criminal offense — can be significant and far-reaching.

Whether you’re grappling with a first-time DUI charge or facing more serious allegations, it’s essential to seek experienced legal representation to protect your rights and navigate the complexities of the legal system. At The Wagner Law Firm, our team of dedicated DUI attorneys possesses the knowledge, and commitment to provide comprehensive guidance and advocacy tailored to your individual needs.

If you or a loved one is facing DUI charges in West Virginia, don’t face the legal process alone. Contact us today to schedule a consultation and learn how we can help you mount a robust defense and pursue the best possible outcome in your case. Your future and freedom are too important to leave to chance.