Refuse No More West Virginia!
At 12:01a.m., June 10, 2016 a citizen arrested for DUI 1st offense in West Virginia, who “refuses” secondary chemical testing at the police station post arrest (i.e. refuses to blow into the breath machine) will no longer be rewarded with the option of entering into the West Virginia Deferral Program that can result in the citizen’s case being fully dismissed and the record of arrest fully expunged.
In 2010, the West Virginia legislature enacted WV Code 17C-5-2b, commonly referred to as “the deferral program.” The essence of this DUI legislation was to create a law whereby a citizen arrested in West Virginia for driving under the influence first offense, who submits to breath testing at the police station post arrest, with an alleged blood alcohol concentration (BAC) result of .149 or less, who has no prior DUI convictions or suspensions anywhere in the United States, can enter into the deferral program and eventually get his or her charge fully dismissed and their record of arrest subsequently expunged.
The procedure for achieving this result is that the citizen enters a conditional guilty plea to the first offense charge that the court holds and does not enter. From there, the citizen must successfully complete 165 days of interlock / ‘blow and go’ installation in the citizen’s vehicle and that of the mandated eighteen (18) hours of DUI education at a WV DMV approved location. Upon successful completion, the WV DMV issues a correspondence of full license reinstatement and successful program completion. The citizen then returns to the governing court whereupon the conditional guilty plea is vacated and the case fully dismissed. One year from the dismissal date, the citizen is eligible to have his or her arrested record expunged and fingerprint card ordered destroyed, and in essence restore the citizen to the status he or she held prior to being arrested for DUI 1st offense having never been charged period. If the citizen fails to successfully complete the program then the conditional guilty plea is entered by the court and the citizen becomes convicted of the offense which then stays on his or her permanent record for life like all other types of criminal convictions.
However, the 2010 West Virginia legislature failed to recognize when enacting this legislation into law the scenario of when a citizen “refuses” to provide a breath sample post arrest, which is the case on a significant amount of DUI arrests annually state and nationwide. So, when this scenario presented, the refusing citizen’s case got looped back into the part of the deferral program statute of “non-aggravated first offense,” which is a BAC of .149 or less, and thus would be “approved” for deferral program eligibility. Meaning, if a citizen with no prior DUI history in his or her lifetime, was arrested for DUI in West Virginia and refused to provide a breath sample post arrest, he or she would be 100% guaranteed to be eligible for the WV Deferral Program, no matter the level of intoxication, severe, moderate or otherwise, and thus 100% guaranteed to have his or her DUI charge fully dismissed and their record of arrest fully expunged.
If the citizen cooperated with law enforcement and agreed to blow into the breath machine post arrest and the alleged result was a .150 BAC or higher allegation than the citizen would not be eligible for the WV Deferral Program in which to get their case fully dismissed and their record of arrest fully cleared. The only difference on the refusal case versus blowing into the breath machine with an offered BAC result of .149 or less is that the citizen would have to have the interlock / blow and go device in their car for twelve (12) months instead of 165 days. However, the result of dismissal and complete eradication of the record of arrest would be the exact same.
So, you ask yourself, “Why in the world would a citizen who gets arrested for DUI in West Virginia ever agree to provide a breath sample post arrest if he/she is 100% guaranteed of having their case dismissed and record of arrest expunged if he/she refuses breath testing?” Exactly! Thus, for almost six (6) years now that this law has been in effect in the state of West Virginia, hundreds upon hundreds of citizens who refused breath testing have been rewarded with a dismissal of their DUI cases and expunction of their DUI arrest records as if never occurred in the eyes of society.
As of June 10, 2016 this will no longer be the case.
The 2016 West Virginia legislature, with House Bill 2665, closed this loophole in the 17C-5-2b deferral program statute by barring a citizen from eligibility into the program who refuses secondary chemical testing (i.e. refuses to blow into the breath machine post arrest at the police station).
For five (5) plus years now, The Wagner Law Firm, West Virginia’s only exclusive DUI defense firm, has made clear to citizens nationwide through the firm’s website, blogs, social and print medias, radio, etc., that “refusal =’s reward” on a first offense DUI in West Virginia. Pointing out the utter foolishness of a citizen agreeing to provide law enforcement a breath sample post arrest for DUI when he/she is 100% guaranteed eligibility to have his/her DUI case fully dismissed and their arrest record expunged if he/she refuses to provide a breath sample to law enforcement.
Accordingly, going forward, any citizen who is arrested for DUI in West Virginia needs to know you will NOT be rewarded for refusing breath testing in West Virginia any longer; and further, that your license suspension period will be harsher and longer if the refusal is upheld in the administrative court process.