Driving Under the Influence
DUI laws in West Virginia have changed considerably over the past several years and more changes are coming. This listing provides basic information regarding the DUI laws in West Virginia, but is not an all-inclusive list. For specific questions, it is important that drivers contact a qualified West Virginia DUI defense lawyer who can answer their specific questions. While this listing is periodically updated, please understand that it may not contain a listing of the most recent changes to the state’s DUI laws.
- DUI with a BAC of 0.08%-0.149%. This is the basic first offense DUI charge in West Virginia. If convicted, there is a possibility of up to 6 months of jail time and a fine of $100-$500. Jail time is not mandatory for a conviction under this offense, but rather is up to the sentencing court and many courts do still impose a jail penalty. There is also a potential administrative license suspension of 90 days, minimum, and ongoing, until the mandatory DUI classes are completed and reinstatement fees have been paid. The administrative license suspension can be further reduced to 15 days if the driver enrolls in the ignition interlock program and participates for 120 days and thereafter until completion of the mandatory DUI classes and payment of the mandatory reinstatement fee.
West Virginia now also provides an alternative resolution of this charge as in several surrounding states. For an arrest on this first offense charge on or after June 11, 2010, drivers are eligible for a conditional probation and dismissal of their DUI. To be eligible for the DUI Deferral Program, the driver must be charged with a true first offense DUI and have a BAC of less than .15%, must not possess a commercial driver’s license (CDL) at the time of arrest, and must not operate a commercial vehicle. The driver must enter a conditional guilty plea to the DUI charge in court and withdraw (or not make in the first place) any challenge to the proposed administrative license suspension. After a mandatory 15 day license suspension, the driver must then participate in the ignition interlock program for 165 days. Once proof of completion is shown to the court after that time period, the DUI is dismissed. Twelve months later, the driver may petition the court for expungement of the DUI arrest records, although the DMV suspension records may not be expunged. One critical point is to know that even though this arrest would be dismissed and expunged, a second DUI arrest within ten years will be treated as a second offense as law enforcement can still see that the driver previously completed the DUI Deferral Program.
- Aggravated DUI (BAC of 0.15% or greater). This also applies to first offense DUI arrests. If convicted, the mandatory sentence is a minimum of 48 hours (of which 24 must actually be served in jail) and up to 6 months in jail and a fine of $200-$1,000. This offense carries a potential license suspension of 45 days with mandatory participation in the ignition interlock program to follow for 270 days.
- DUI under 21 (BAC of 0.02%-0.079%). Since persons under 21 are prohibited from consuming alcohol at all, those under 21 and caught driving with a BAC between 0.02% and 0.079% can still be charged with a DUI. If convicted, there is not a jail penalty but there is a mandatory fine of $25-$100. There is also a mandatory administrative license suspension of 60 days or, in the alternative, 30 days with participation in the ignition interlock program for 5 months. Successfully completing the ignition interlock program after voluntarily entering into it can lead to expungement of both the criminal and DMV records, giving a true clean slate to those who successfully finish this program. Unlike the DUI Deferral Program, this does not count as a prior if the driver is arrested again for DUI.
- DUI resulting in injury. This offense arises when a driver is under the influence and is involved in an accident in which anyone other than the driver suffers an injury. If convicted, the mandatory sentence is not less than 24 hours in jail and not more than one year in jail in addition to fines of $200-$1,000. The potential administrative license suspension is for a period of 2 years. The license suspension can be reduced to 60 days if the driver participates in the ignition interlock program for a period of one year after that 60 day suspension.
- DUI resulting in death. Intoxicated drivers involved in an accident which results in the death of another individual through an act of reckless disregard for the safety of others may be charged with a felony crime. If convicted, the mandatory sentence is not less than two years and not more than ten years in prison along with a fine of $1,000-$3,000. The potential administrative license suspension is ten years or, alternatively, one year followed by two years of mandatory participation in the ignition interlock program.
In the alternative, depending on the circumstances of the accident which led to the death of another, the driver could be charged with a misdemeanor instead of a felony. A conviction under this charge carries a sentence of not less than 90 days and not more than one year in jail and a fine of $500-$1,000. Under this offense, the potential administrative license suspension is five years, or 6 months followed by 2 years mandatory participation in the ignition interlock program.
- DUI with a minor in the vehicle. If a driver is charged with a DUI and has a minor under the age of 16 years in the vehicle at the time, there are potential enhanced penalties. If convicted of this misdemeanor offense, the sentence is not less than 48 hours and not more than one year in jail and fines of $200-$1,000. The administrative license suspension penalty is one year or, alternatively, 2 months followed by 10 months of mandatory participation in the ignition interlock program.
- Second offense DUI. If a driver was convicted of a DUI within the last 10 years from the date of the current arrest, the police may charge a Second Offense DUI. If convicted, the sentence penalty is not less than 6 months and not more than one year in jail and a discretionary fine of $1,000-$3,000 (this means it is up to the court whether or not to impose a fine). The administrative license suspension one year followed by two years of mandatory participation in the ignition interlock program.
- Third or subsequent offense DUI. Drivers who have been convicted of a DUI on more than one occasion within the last 10 years prior to the date of the current arrest can be charged with Third or Subsequent Offense DUI, a felony in West Virginia. If convicted, the sentence is 1 to 3 years in prison and a discretionary fine of $3,000 to $5,000. The administrative license suspension one year followed by three years of mandatory participation in the ignition interlock program.
- Refusal of secondary chemical test. Refusing to take the secondary chemical test (the test back at the police station) is not a criminal offense in West Virginia and there are no jail or monetary fines connected to refusing the test. However, if a driver is proven to have knowingly refused to submit to the test, there is an additional administrative license suspension penalty which is imposed on top of any potential underlying DUI suspension. That additional penalty is a license suspension of one year or, alternatively, 45 days followed by a mandatory 1 year of participation in the ignition interlock program. If the driver is arrested again for DUI and chooses to refuse the secondary chemical test on this occasion as well, the license suspension is for 10 years or. Alternatively, 1 year followed by 2 years of mandatory ignition interlock participation. Penalties for refusal do not apply for refusal of the handheld breath test. These penalties also run concurrently, or at the same time, as any underlying DUI suspension and not back to back with an underlying DUI suspension.
West Virginia Division of Motor Vehicles: www.dmv.wv.gov
WV Office of Administrative Hearings - http://www.transportation.wv.gov/oah/Pages/default.aspx
The Office of Administrative Hearings conducts and judges administrative license suspension hearings in West Virginia.
WV Office of the Attorney General - http://www.wvago.gov/index.cfm
The Office of the Attorney General provides counsel to represent the DMV in administrative license hearings against the driver accused of violating WV’s DUI laws.
WV Judiciary - http://www.courtswv.gov/
This site provides useful resources, information, and links to every court in the State of West Virginia.
WV State Bar - http://www.wvbar.org/
The WV State Bar is the official regulatory authority for the practice of law in West Virginia. The site provides substantial information and resources for both the public and lawyers regarding the practice of law in the state.