WV DUI Implied Consent Law

By: Harley O. Wagner, WV DUI Lawyer

What Is the DUI Implied Consent Law in West Virginia?

The term “implied consent” in relation to West Virginia laws only applies to drunk driving cases. The West Virginia implied consent law is similar to the implied consent laws in all other states.

Implied consent laws are little-known state laws which were enacted to force an arrested driver in West Virginia who is suspected of DUI and arrested by police, to submit to blood, breath, or urine testing to reveal how much alcohol or drugs are in the WV DUI suspect’s system. It was originally based on the concept that by USING the roads of WV, you had given your consent to be tested if you were lawfully arrested and suspected of driving under the influence.

Today, the existence of WV 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.

Because WV has a special law for those drivers who have a first DUI offense, West Virginia DUI deferral program eligibility hinges upon whether the DUI first offense driver submitted to the requested WV implied consent test or not.

So, an implied consent law in WV says that simply by operating a car or truck on our West Virginia highways, you have already agreed to submit to blood testing, breath alcohol testing, or urine testing if reasonably suspected by a law enforcement officer of being too intoxicated to drive due to alcohol, drugs, or any other impairing substance (e.g., smoking weed).

New laws that were enacted in 2016 have significantly increased potential DUI penalties, as it relates to being able to obtain favorable DUI first offense sentencing alternatives that protect your criminal history. Most significant is the loss of the ability to take advantage of the deferral program.

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

The answer to this question is, “It depends.” Under WV 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 DUI driver is a repeat offender under WV DUI laws, such as being punished and suspended as a second DUI in WV.

These risks and loss of favorable sentencing alternatives are explained further, as the different scenarios for 1st DUI offense, 2nd DUI or 3rd DUI are explained below.

Approximately 30 to 40 days after your WV first DUI date of arrest, a registered mail “Order of Revocation Notice” will be sent to you at the address on your license, as taken down by the arresting officer as part of your WV DUI arrest.  This letter is mailed by the West Virginia Division of Motor Vehicles (WV DMV), as part of the two-part DUI consequences required by WV DUI law. This is all initiated by the arresting officer as part of your WV DUI arrest.

You or your DUI lawyer must ensure the address on your license is correct or you will not receive this important order of license revocation notice. If your current mailing address is different than the one on your plastic driver’s license, call a WV DUI attorney immediately to have him or her handle this important aspect of your WV DUI.

Don’t lose the right to drive due to simple laziness or ignorance of the law, because the WV DMV simply does NOT alter its strict rules for such oversight.

The Full Text of the West Virginia Implied Consent Law

The statute containing the WV implied consent law is very long, and highly complicated. The statute is W. Va. Code, § 17C-5A-1, and outlines the various DUI penalties and DUI consequences (e.g., loss of your WV driver’s license) that this law addresses, especially for a DUI refusal.

(a) Any person who is licensed to operate a motor vehicle in this state and who drives a motor vehicle in this state shall be deemed to have given his or her consent by the operation thereof, subject to the provisions of this article, to the procedure set forth in this article for the determination of whether his or her license to operate a motor vehicle in this state should be revoked because he or she did drive a motor vehicle while under the influence of alcohol, controlled substances or drugs, or combined influence of alcohol or controlled substances or drugs, or did drive a motor vehicle while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight, or did refuse to submit to any secondary chemical test required under the provisions of article five of this chapter or did drive a motor vehicle while under the age of twenty-one years with an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight.

(b) Any law-enforcement officer investigating a person for an offense described in section two, article five of this chapter or for an offense described in a municipal ordinance which has the same elements as an offense described in said section shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours of the conclusion of the investigation the name and address of the person believed to have committed the offense. The report shall include the specific offense with which the person is charged and, if applicable, a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection constitutes an oath or affirmation by the person signing the statement that the statements contained in the statement are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.

(c) If, upon examination of the written statement of the officer and the tests results described in subsection (b) of this section, the commissioner determines that a person committed an offense described in section two, article five of this chapter or an offense described in a municipal ordinance which has the same elements as an offense described in said section and that the results of any secondary test or tests indicate that at the time the test or tests were administered the person had, in his or her blood, an alcohol concentration of eight hundredths of one percent or more, by weight, or at the time the person committed the offense he or she was under the influence of alcohol, controlled substances or drugs, the commissioner shall make and enter an order revoking or suspending the person’s license to operate a motor vehicle in this state. If the results of the tests indicate that at the time the test or tests were administered the person was under the age of twenty-one years and had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, the commissioner shall make and enter an order suspending the person’s license to operate a motor vehicle in this state. A copy of the order shall be forwarded to the person by registered or certified mail, return receipt requested, and shall contain the reasons for the revocation or suspension and describe the applicable revocation or suspension periods provided in section two of this article. A revocation or suspension shall not become effective until ten days after receipt of a copy of the order.

(d) Any law-enforcement officer taking a child into custody under the provisions of section six-a, article five of this chapter who has reasonable cause to believe that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, or that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of section two of said article if the child were an adult, shall report to the Commissioner of the Division of Motor Vehicles by written statement within forty-eight hours the name and address of the child.

(e) If applicable, the report shall include a description of the specific offense with which the child could have been charged if the child were an adult and a copy of the results of any secondary tests of blood, breath or urine. The signing of the statement required to be signed by this subsection constitutes an oath or affirmation by the person signing the statement that the statements contained in the statement are true and that any copy filed is a true copy. The statement shall contain upon its face a warning to the officer signing that to willfully sign a statement containing false information concerning any matter or thing, material or not material, is false swearing and is a misdemeanor.

(f) Upon examination of the written statement of the officer and any test results described in subsection (d) of this section, if the commissioner determines that the results of the test indicate that at the time the test or tests were administered the child had, in his or her blood, an alcohol concentration of two hundredths of one percent or more, by weight, but also determines that the act of the child in driving the motor vehicle was not such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (h), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order suspending the child’s license to operate a motor vehicle in this state. If the commissioner determines that the act of the child in driving the motor vehicle was such that it would provide grounds for arrest for an offense defined under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (h), section two, article five of this chapter if the child were an adult, the commissioner shall make and enter an order revoking the child’s license to operate a motor vehicle in this state. A copy of the order shall be forwarded to the child by registered or certified mail, return receipt requested, and shall contain the reasons for the suspension or revocation and describe the applicable suspension or revocation periods provided for in section two of this article. A suspension or revocation shall not become effective until ten days after receipt of a copy of the order.

Contact WV DUI Lawyer Harley O. Wagner on Implied Consent Laws in WV

If you need a West Virginia attorney to help you save your license and obtain the best outcome in a WV DUI case, that will be Harley O. Wagner, a DUI specialist and top-rated among criminal attorneys Martinsburg WV. Obtain your FREE lawyer consultation with The Wagner Law Firm, to let him guide your path through fighting this drunk driving case.

Call now by dialing 304-901-7400. The professional DUI WV case assessment is FREE and you can shift this burden off your shoulders and onto the shoulders of highly-acclaimed drunk driving attorney Martinsburg WV – Harley Wagner.