Should I Take the WV DUI Breath Test? | Implied Consent Law

DUI Refusal in West Virginia NO LONGER Equals Reward! (*More so with WV licensed drivers than out-of-state licensed drivers – read below for further info.)

Should I Take the WV DUI Breath Test? | Implied Consent LawIn the Spring of 2016, I wrote the article below, “Refuse No More,”’ where I advised citizens that effective June 1, 2016, “refusing” the official breath test at a police station after you were handcuffed and arrested for a West Virginia DUI was no longer as favorable a choice as it once was. I also outlined the reasons why.

This doesn’t mean you shouldn’t refuse both breath tests. It just means that doing so is no longer going to afford a first-time offender the opportunity to get his or her dui charge dismissed by law. Read on for further details.

As the CEO of The Wagner Law Firm, West Virginia’s only exclusive DUI Defense Law Firm, coupled with the fact that I continually get asked by citizens everywhere, “Should I blow or not blow?”, I believe it is wise to once again remind the public of what to do in this scenario.

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What’s the Difference Between the Roadside Portable Breath Test and the Official DUI Breath Test?

First, let me clarify the difference between the portable roadside breath tester (breathalyzer) and the official breath machine test given at the police station after you have arrived at the station. Typically when a police officer pulls you over or stops you at a DUI checkpoint, and you show signs of having been drinking, the officer will pull out a portable handheld breath tester, or breathalyzer, and ask you to blow into it.

This small portable device is used to determine your blood alcohol content level, or BAC level. (This handheld device is strictly voluntary, and a citizen is under NO lawful obligation to agree to take it. You should politely decline to blow into this handheld device.)

If your BAC is 0.08 or higher, or even around the legal limit number (say, .06/.07), the officer will begin a DUI investigation at the roadside. A DUI investigation means that the officer has been trained to ask you certain incriminating questions such as, “Have you been drinking?” and “How much have you had to drink?”

The next part of the investigation usually involves the officer asking you to perform field sobriety tests like the DUI eye test, the walk and turn, and the one leg stand. (Answering questions AND performing field sobriety exercises, just like the portable roadside breath test device above, are strictly voluntary AND the citizen should politely decline to answer any questions or take any tests without talking to an attorney first.)

If after the investigation is complete the officer concludes that you are impaired, he or she will handcuff you and place you under arrest for driving under the influence of alcohol. Then the officer will place you in the back seat of the police car and drive you to the police station.

At the precinct station you will be asked if you are willing to take a second breath test to measure your blood alcohol content. This test is known as the official breath test, and the results of this test are admissible as evidence in court, provided all statutory guidelines on proper administration have been followed – which a well-trained, experienced DUI defense attorney like Harley Wagner will know.

Why Do I Have to Take a Second Breath Test After My DUI Arrest?

So you may ask, “Why do I have to take another breath test if the first test I took at the roadside showed that my BAC was 0.08 or higher, or possible impairment?” (Again noting you should not agree to take this roadside test and by law do not have to take.)

The reason you are asked to blow into an official breath machine at the police station is because the results from the portable breath tester are not admissible as evidence in court, or at least not the actual BAC number. BUT the officer can, under oath, tell the judge or the jury if you “failed” or “passed” the roadside breath test, with the value of this offering result being probable cause to arrest only.

Are the Penalties for WV DUI Refusal the Same for Out-Of-State Drivers?

A caveat to the below article I wrote is that if you hold an out-of-state driver’s license (a license issued in one of the other 49 states), and refuse the official breath machine post-arrest for a DUI in West Virginia, you are looking at the possible suspension of your West Virginia driving privileges for one year. This means you would not be able to legally drive in WV for a full 12 months.

However, this 12-month no driving penalty only applies within the borders of West Virginia. You can still drive legally in your home state and in every other state except WV. Only your home state has the authority to actually suspend your driver’s license. The West Virginia Division of Motor Vehicles does not have the authority to suspend driving privileges in your home state, regardless of what they may have told you.

So, an out-of-state driver charged with a WV first offense DUI refusal would not suffer the same consequence to their home state driver’s license as a citizen licensed in West Virginia for refusal to take the breath machine test at the police station (a.k.a. the official secondary chemical test).

Drivers who are licensed in West Virginia are only looking at three more months of the interlock device if they refuse to blow into the official breath test machine at the police station post-arrest, compared to drivers who comply and provide a breath sample, which if greater than .149 (i.e. .150 or higher) subjects these drivers to a WV license suspension for 45 days, followed by 9 months of mandatory blow and go interlock installation on their vehicle.

This seeming inconsistency also applies to out-of-state licensees who submit to official breath testing with a result alleged to be .150 or higher, versus that of the above refusal scenario where the out-of-state citizen can simply elect to endure a one-year loss of their West Virginia driving privileges.

So Should I Take the Roadside Breath Test AND the Official Second Breath Test?

Should you agree to blow into the portable breath tester at the roadside? NO. Should you agree to blow into the official breath test machine at the police station? NO if you are an out-of-state licensee and/or think there’s a chance the machine could spit out a high BAC number, regardless of whether licensed in WV or another state. (*Regardless of what a law enforcement officer says or threatens, the breath machine at the station is strictly voluntary and the citizen is under no lawful obligation to submit to it. AND NO, you do not get your license automatically taken if you refuse the breath machine at the police station post-arrest.)

If I Refuse Both Breath Tests, What Penalties Do I Face?

A citizen who holds a West Virginia driver’s license, and who refuses to take the official breath test after being handcuffed and arrested for DUI, must choose one of two options: a possible 45-day hard no driving suspension of his or her West Virginia driver’s license, followed by twelve (12) months of interlock (blow and go) installation in their vehicle, or they can choose going a whole year without a driver’s license if they decline to install an interlock.

THIRD OPTION: Any citizen who refuses the official breath test can also elect to go directly onto the interlock for thirteen and one-half months.

In short, unless you have consumed a very modest amount of alcohol, you should NEVER SUBMIT to a West VA official breath test post-arrest on a first offense DUI.

Important Reminder:

Keep in mind that “refusing” any form of testing is an absolute guaranteed constitutional right that all American citizens have, just like we have when being questioned by law enforcement, regardless of what a law enforcement officer may tell you.

Should I Take Any DUI Field Sobriety Tests or Answer an Officer’s Questions?

In a DUI case, roadside field sobriety tests are strictly voluntary, and so is taking the roadside portable breath test. Both the field sobriety exercises and the roadside breath test should always be politely declined.

You should also politely refuse to answer any of the police officer’s questions beyond providing your full legal name and home address. And don’t forget to ask to call your DUI attorney, Harley Wagner, when allowed to do so.

The following WV DUI refusal article was initially published in the Spring of 2016:

“Refuse No More West Virginia!”

As of 12:01a.m. on June 10, 2016 a citizen arrested for a DUI 1st offense in West Virginia, and who “refuses” secondary breath testing (i.e. refuses to blow into the official breath machine) or blood testing at the police station post-arrest, will no longer be rewarded with the option of entering into the West Virginia DUI Deferral Program. Completion of the deferral program requirements can result in the citizen’s drunk driving case being fully dismissed, and the record of arrest fully expunged (removed permanently).

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 can enter into a deferral program, and upon the program’s completion can eventually get his or her drunk driving charge fully dismissed, and their record of arrest subsequently expunged (removed).

To be eligible for the WV deferral program, a citizen must meet the following requirements:

  • The citizen submits to the official breath test at the police station post-arrest.
  • The official breath test result shows an alleged blood alcohol concentration (BAC) result of .149 or less.
  • The citizen has no prior DUI convictions or suspensions anywhere in the United States.

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, and also must complete the mandated eighteen (18) hours of DUI education (DUI Class) at a WV DMV-approved location.

Upon successful completion of both requirements, 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 your case is fully dismissed. One year from the dismissal date, the citizen is eligible to have his or her arrest record expunged, and fingerprint card ordered destroyed.

In essence these actions restore the citizen to the status he or she held prior to being arrested for DUI 1st offense as if never having never been charged – period! If the citizen fails to successfully complete both programs, a conditional guilty plea is entered by the court and the citizen becomes convicted of the offense. This conviction then stays on his or her permanent record for life just 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 an official breath sample post-arrest, which is the case with a significant number of DUI arrests annually, both in WV and nationwide.

So, when this refusal scenario presented itself, 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.

This meant that if a citizen with no prior DUI history in his or her lifetime was arrested for DUI in West Virginia and refused to provide an official breath sample post-arrest, he or she would be 100% guaranteed to be eligible for the WV Deferral Program no matter their level of intoxication (severe, moderate or otherwise), and thus 100% guaranteed to have their DUI charge fully dismissed, and their record of arrest fully expunged.

If the citizen cooperated with law enforcement and agreed to blow into the official breath machine post-arrest, and the alleged blood alcohol content result was a .150 BAC or higher, then the citizen would not be eligible for the WV Deferral Program. Thus, they would not get their case fully dismissed, nor their record of arrest fully cleared.

The only difference between a driver who refuses secondary testing and a driver who agrees to blow into the official breath test machine and registers a BAC result of .149 or less, is that the citizen who agrees to blow would have to have the interlock/blow and go device in their car for twelve (12) months instead of 165 days. However, case dismissal and complete eradication of the record of arrest would be exactly the same for both drivers.

So you may ask yourself, “Why in the world would a citizen who gets arrested for DUI in West Virginia ever agree to provide an official breath sample post-arrest if he or she is 100% guaranteed to have their case dismissed and record of arrest expunged if they refuse the second breath testing?” Exactly!

Thus, for the 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 no arrest ever occurred in the eyes of society.

As of June 10, 2016 this is no longer 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 official 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 media, and radio etc. that “refusal equals reward” on a first offense DUI in West Virginia.

Before the new 2016 legislation eliminated this legal loophole, WV DUI lawyer Harley Wagner pointed out the utter foolishness of a citizen agreeing to provide law enforcement with an official breath sample post-arrest when the citizen is 100% guaranteed to have his or her DUI case fully dismissed, and their arrest record expunged if they refuse to provide a second breath sample to law enforcement.

Accordingly, and going forward, any citizen who is arrested for DUI in West Virginia NOW needs to know that they will NOT be rewarded for refusing official breath testing in West Virginia any longer. Furthermore, the charged citizen’s license suspension period will be harsher and longer if the DUI refusal is upheld during the administrative court process.