West Virginia DUI Laws, Fines & Penalties

Drunk driving or drugging and driving is illegal in all states, including the state of West Virginia. A driver convicted of driving under the influence (DUI) in West Virginia incurs significant fines and penalties, including jail time and a loss of driving privileges. Even a driver with some familiarity with the West Virginia DUI laws will do well to review the current status. Sections of the DUI statutes were redesigned in 2020, eliminating the administrative tier of punishment, among other significant changes.

For a first offense, a driver's license is revoked for between 15 and 45 days on a first offense with the installation of an IID. The "hard" revocation period is six months. For a second offense, the court can revoke the license for up to 10 years with an IID required for two years after the license is reinstated. A third offense can result in a lifetime revocation.

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West Virginia Code Section 17C-5-2 makes it illegal for anyone to drive under the influence of alcohol, drugs or controlled substances. This law defines several ways in which a person can violate the statute:

• Drive while under the influence of alcohol.
• Drive while under the influence of drugs.
• Drive while under the influence of controlled substances, as defined in Section 60A-1-101 of this code.
  
• Drive with a blood alcohol concentration (BAC) over the legal limit.
  

The first three come under the general category of impairment DUIs, based on the effect of the substance on the person's driving abilities. The latter is termed a "per se" DUI, which is based solely on the results of chemical testing.

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Impairment DUIs are the original types of drunk/drugged driving charges. It is only a DUI if the driver's use of a substance has impaired their faculties to such an extent that they cannot drive with ordinary safety. For some drinkers, this could be a few beers; for others, it might be a six-pack or even two. There is no safe guide to how much alcohol or drugs will bring a driver into the "under the influence" category, since it depends on factors like gender, weight, age, level of fatigue, physical health and amount of food consumed that day.

A police officer determines if a person is under the influence by observing their conduct both behind the wheel and once they get out of the car. Roadside sobriety tests are designed to identify impaired drivers, with exercises like walking in a straight line and balancing on one leg. But erratic driving, slurred speech and a red face also catch law enforcement's attention. A West Virginia prosecutor bringing impairment DUI charges against a driver must establish use of alcohol, drugs or controlled substances beyond a reasonable doubt, as well as the driver's resulting impairment.

Most of the DUI convictions in West Virginia are "per se" DUIs. These are based on chemical testing to determine the amount of alcohol in a person's system, usually with a breath sample, but sometimes with a blood test. The state sets legal limits for regular drivers, commercial drivers and also young drivers under the age of 21.

Per se means "in and of itself." These DUIs are called per se DUIs because evidence of the driver's test results show a BAC above the legal limit, which is sufficient evidence, in and of itself, for a conviction. The legal BAC limit for regular drivers is under 0.08 percent, and a driver testing 0.08 percent or above is violating the statute. For commercial drivers, the legal BAC limit is 0.04 percent, while, for drivers under the age of 21 years, the legal BAC limit is a low 0.02 percent.

Note that, unlike impairment testing, neither drunken behavior nor erratic driving is required to establish this violation; the test results are sufficient proof.

It is much easier for a prosecutor to convict someone of a per se DUI in West Virginia than to convict them of an impairment DUI. All the prosecutor need show the jury is that the driver's breathalyzer test result came back over the legal limit. This fact could easily make drivers think twice before agreeing to blow into the breathalyzer device.

To head this off at the pass, West Virginia enacted an implied consent law, like most other states. This is based on the idea that driving on public streets or highways in the state is a privilege, not a right. The state conditions that privilege for all drivers on consent to take chemical tests if they are arrested for a DUI.

Express consent is not the ticket here; the consent is implied from a driver's decision to operate a vehicle on public roads in West Virginia. The driver's refusal to take the test is itself an offense and subject to penalties.

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For many years, West Virginia had a two-tier program for DUI sanctions. Violations of the implied consent law were referred to the West Virginia Department of Motor Vehicles, Office of Administrative Hearings. There, a person’s driver’s license could be suspended, revoked or restricted, depending on the violation.

A refusal to take a chemical test resulted in an immediate suspension of driving privileges. These were separate proceedings from the DUI criminal trial that occurred in the courts.

However, in a sweeping reform of the DUI laws in 2020, West Virginia combined the two-tier system into one, completely eliminating the administrative process and placing the entire DUI enforcement process in the criminal courts. The new law went into effect in June 2020. It only imposes a license suspension or revocation if and when a driver is convicted of a DUI in court or who pleads guilty or no contest to the charge. A driver who is acquitted or not charged cannot have their license suspended or revoked.

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So, now what happens if a driver refuses to blow into a breathalyzer after a DUI arrest? The driver has a period of 30 days from their arraignment to ask for a refusal hearing before a criminal court magistrate. To prevail, the driver must show that they did not refuse to take the chemical test.

If the magistrate finds that a preponderance of the evidence establishes that the driver did, in fact, refuse the test, the person's driver's license is suspended for a period of 45 days. When that period is over, the driver must install an ignition interlock device (IID) on their vehicle and keep it on for one year. Alternatively, the magistrate can order a one-year "hard" suspension of driving privileges, precluding any driving during that period. If a driver does not seek a hearing, one of these sanctions is imposed. Second and subsequent refusals result in longer revocation periods.

The recent statutory revisions did not alter the basic criminal penalties for DUI convictions in West Virginia. They remain the same and depend on several factors, including the person's driving record, BAC level and the circumstances of the DUI.

In terms of the person's prior driving record, a look-back period of 10 years applies in West Virginia. That means that the court looks at DUI convictions that occurred only in the 10-year period immediately preceding the current arrest. If there are no DUIs in that period, the current arrest is treated as a first offense DUI, eligible for the least serious penalties. If there is one DUI in that period, the current DUI is a second offense with more severe penalties. Penalties increase for each additional prior DUI.

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First offenders in West Virginia are given the least severe punishments. While it is possible for a first-time DUI offender to be sent to jail, there is no mandatory minimum jail time. The maximum possible jail sentence is six months. In addition, the driver will be fined between $100 to $500 and will have to pay court costs.

Jail time and the amount of fines go up if the driver's BAC was elevated, that is, 0.15 percent or higher. If that is the case for a first offender, there is a mandatory minimum jail sentence of two days, and fines range from $200 to $1,000, plus court costs.

Jail time for a second offender ranges from six months to one year. While the court cannot suspend or defer the jail sentence, it is possible to permit the driver to serve time on work release or house arrest. Fines can range from $1,000 to $3,000. Third offenses bring one to three years in jail and fines up to $5,000.

Note that certain circumstances dramatically increase penalties. For example, if the DUI driver causes severe bodily harm to another or kills another individual, it is a felony, punishable by years in prison.

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Anyone convicted of a DUI in West Virginia will also have their license revoked. A first offender can opt for a shorter revocation period followed by a period of driving with an IID installed, or they can opt for a "hard" revocation without any right to drive. A driver getting a second or subsequent DUI will be ordered to use an IID.

For a first offense, a driver's license is revoked for between 15 and 45 days on a first offense with the installation of an IID. The "hard" revocation period is six months. For a second offense, the court can revoke the license for up to 10 years with an IID required for two years after the license is reinstated. A third offense can result in a lifetime revocation.

West Virginia applies different, stricter laws to drivers of commercial motor vehicles. Like other drivers, they will be arrested for an impairment DUI if found to be driving under the influence of alcohol, drugs or controlled substances. The per se DUI, however, is triggered if the driver has a blood alcohol concentration of 0.04 percent or higher.

The commercial driver penalties depend on whether the driver was carrying hazardous materials at the time of the DUI. If they were not, the driver faces the same jail time and fines that apply to regular DUI convictions. However, the driver will lose their license for a second DUI offense. If the driver was carrying hazardous materials, the revocation period for a first offense is three years, while the second-offense revocation is permanent.

Nobody under the age of 21 is permitted to buy or consume alcohol in West Virginia. Given that, the state enacted a zero tolerance law that restricts all underage drinking and driving for those under 21. Any measurable amount of alcohol in the person's system will cause them to be arrested for violating this law.

A first offense results in a fine of between $25 and $100 and a two-month license revocation. A second offense sends the young driver to jail for 24 hours, in addition to a fine of up to $500 and a one-year license revocation. Note that anyone under 21 caught driving with a BAC level of 0.08 percent or greater will be sentenced like an adult.

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