Time once again for West Virginia’s Premier DUI Defense Firm, The Wagner Law Firm, owned and operated by West Virginia DUI Attorney, Harley Wagner, to remind citizens nationwide of the “reward” your DUI case will present when you “refuse” any form of chemical testing request by law enforcement or medical personnel. You see friends, during the 2010 legislative term of the West Virginia legislature, they voted into law West Virginia Code 17C-5-2b, The Deferral Program. In theory, this new DUI law was to afford a citizen charged with DUI 1st offense, who has no prior DUI convictions or DUI license related suspensions in his or her past, and to whom does not maintain a commercial driver’s license or that of the alleged DUI being due to drug ingestion, who provides a breath sample for chemical testing with a blood alcohol concentration result less than .15%, to enter a conditional guilty plea to the DUI charge. From there, upon completion of a 15 day license suspension, followed by 165 days of Interlock installation in the citizen’s vehicle, he/she can return to court and get the DUI charge dismissed. One year from said dismissal date, the citizen can move said court to expunge the citizen’s arrest record. In the infinite wisdom of our West Virginia legislature they forgot to address “refusals” of the secondary chemical test / breath machine at the police station post arrest. Meaning, it is not just citizen who submits to the breath machine with a BAC result less than .15 that can be afforded a get out of jail free card / dismissal of their case and arrest record expunction opportunity, but also, citizens who “refuse” to submit to breath testing. Keeping in mind it has been four years since the statute was enacted and the West Virginia legislature has made zero effort to address this glaring loophole in this public policy abomination, deferral statute. Now, when you refuse breath testing, in order to also receive a get out of jail free card / complete dismissal of your DUI case and expunction of your arrest record, you will need to agree to a 45 day suspension of your West Virginia driver’s license, or your West Virginia driving privileges if licensed elsewhere, and from there further agree to 12 months of interlock installation in your vehicle, but the result when all is said and done will be the exact same: dismissal of your case and expunction of your arrest record. Soooo, I ask: Why in the world would ANY citizen charged with DUI in the State of West Virginia EVER agree to blowing into a breath machine post arrest for DUI and risk the number the toaster shoots out to be .15 or higher??? Exactly! Under current West Virginia DUI laws, it would be utterly foolish for ANY citizen anywhere in America, who gets arrested for DUI in the state of West Virginia, to provide a breath sample for chemical testing. Don’t risk it. Refuse! Let me say it again, REFUSAL =’s REWARD on a DUI charge in the state of West Virginia my friends. Know it. Preach it. Spread the word to any and all you can. It’s NOT drink, drive and go to jail on a DUI charge in the state of West Virginia. It’s drink, drive, refuse breath testing and get rewarded with a one-time hall pass, complete dismissal of your case and expunction of your arrest record as if it never even happened. Make no mistake, the statute is indeed a public policy train wreck, piece of legislation and offensive to any citizen that remotely cares about sound laws, sound public policy and even application of our laws. But seeing as how the West Virginia legislature has clearly zero intent of re-drafting this statute, or better yet, abolishing it completely, I must, as a defender of citizen rights tell any and all: Refuse breath testing on a DUI charge in the state of West Virginia and you will get rewarded with an opportunity to have your case dismissed and your arrest record expunged. Never, ever, submit to breath testing in the state of West Virginia on a DUI charge.
AttorneyThomas M. Cooley School of Law, National College for DUI Defense, West Virginia State Bar
Harley has represented over 3,000 citizens throughout West Virginia. He is the author of West Virginia DUI Defense, The Law and Practice, which is the go to handbook for many magistrates, judges, defense attorneys, prosecutors, and law enforcement throughout West Virginia. has been selected for inclusion in West Virginia Super Lawyers® eight times.
He maintains an AV Preeminent® Rating by with Martindale-Hubbell®, an Avvo Rating of 10.0, and an excellent annual rating from the Better Business Bureau.
Harley is also the past president of the national DUI Defense Lawyers Association (2020-2021) which he was Charter Member and founder of in 2014
Areas of Expertise: DUI Defense, Aggravated DUI, Alternative Sentencing, Boating Under the Influence, Commercial License DUI, DMV Hearings, DUI Drugs, DUI with Injury, DUI Causing Death, Out-of-State Resident DUI, DUI Immigration Consequences, DUI with Minor in Vehicle, DUI Child Endangerment, Fleeing a DUI, Felony DUI, Permitting DUI, Underage DUI, Multiple DUI, First-Offense DUI, Second-Offense DUI, Third-Offense DUI, DUI Testing, Field Sobriety Tests, Breathalyzer, Blood Testing, DUI Info Center, College Student DUI, DUI Checkpoints, DUI Court Dates, DUI Deferral Program, Implied Consent, Test & Lock Program, FAQ, DUI Penalties, Administrative License Revocation, Ignition Interlock Device, License Suspension
You see friends, during the 2010 legislative term of the West Virginia legislature, they voted into law West Virginia Code 17C-5-2b, The Deferral Program. In theory, this new DUI law was to afford a citizen charged with DUI 1st offense, who has no prior DUI convictions or DUI license related suspensions in his or her past, and to whom does not maintain a commercial driver’s license or that of the alleged DUI being due to drug ingestion, who provides a breath sample for chemical testing with a blood alcohol concentration result less than .15%, to enter a conditional guilty plea to the DUI charge. From there, upon completion of a 15 day license suspension, followed by 165 days of Interlock installation in the citizen’s vehicle, he/she can return to court and get the DUI charge dismissed. One year from said dismissal date, the citizen can move said court to expunge the citizen’s arrest record. In the infinite wisdom of our West Virginia legislature they forgot to address “refusals” of the secondary chemical test / breath machine at the police station post arrest. Meaning, it is not just citizen who submits to the breath machine with a BAC result less than .15 that can be afforded a get out of jail free card / dismissal of their case and arrest record expunction opportunity, but also, citizens who “refuse” to submit to breath testing. Keeping in mind it has been four years since the statute was enacted and the West Virginia legislature has made zero effort to address this glaring loophole in this public policy abomination, deferral statute. Now, when you refuse breath testing, in order to also receive a get out of jail free card / complete dismissal of your DUI case and expunction of your arrest record, you will need to agree to a 45 day suspension of your West Virginia driver’s license, or your West Virginia driving privileges if licensed elsewhere, and from there further agree to 12 months of interlock installation in your vehicle, but the result when all is said and done will be the exact same: dismissal of your case and expunction of your arrest record. Soooo, I ask: Why in the world would ANY citizen charged with DUI in the State of West Virginia EVER agree to blowing into a breath machine post arrest for DUI and risk the number the toaster shoots out to be .15 or higher??? Exactly! Under current West Virginia DUI laws, it would be utterly foolish for ANY citizen anywhere in America, who gets arrested for DUI in the state of West Virginia, to provide a breath sample for chemical testing. Don’t risk it. Refuse! Let me say it again, REFUSAL =’s REWARD on a DUI charge in the state of West Virginia my friends. Know it. Preach it. Spread the word to any and all you can. It’s NOT drink, drive and go to jail on a DUI charge in the state of West Virginia. It’s drink, drive, refuse breath testing and get rewarded with a one-time hall pass, complete dismissal of your case and expunction of your arrest record as if it never even happened. Make no mistake, the statute is indeed a public policy train wreck, piece of legislation and offensive to any citizen that remotely cares about sound laws, sound public policy and even application of our laws. But seeing as how the West Virginia legislature has clearly zero intent of re-drafting this statute, or better yet, abolishing it completely, I must, as a defender of citizen rights tell any and all: Refuse breath testing on a DUI charge in the state of West Virginia and you will get rewarded with an opportunity to have your case dismissed and your arrest record expunged. Never, ever, submit to breath testing in the state of West Virginia on a DUI charge. 
