Like all other states, West Virginia has an implied consent law. That law, W. Va. Code § 17C-5-4, states that any person who drives a motor vehicle in the State of West Virginia is considered to have given their consent to a preliminary breath test (PBT) and a secondary chemical test of their breath or blood to determine the alcohol concentration and/or controlled substance concentration in their blood. Stated otherwise, if you drive in West Virginia, then, by law, you have legally consented to submit to a test to determine the alcohol and/or controlled substance concentration in your blood.
If you refuse the secondary test, typically referred to as the Intoximeter, then your privilege to drive in West Virginia can automatically be revoked for a period of one year or for a period of 45 days with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program.
The West Virginia DUI refusal law changed on July 1, 2020. Now, persons who refuse the secondary test can request a refusal review hearing. The request must be made in writing within 30 days following the first appearance before the court. If the request is not made within 30 days following the first appearance, then the court will enter an order, send it to the DMV, and your privilege to drive will be revoked for a period of one year or for a period of 45 days with an additional one year of participation in the Motor Vehicle Alcohol Test and Lock Program.
At the refusal review hearing, the court must determine by a preponderance of the evidence whether:
- The arresting law-enforcement officer had reasonable grounds to believe the arrested person had committed a violation of §17C-5-2 of this code;
- The law-enforcement officer requested the arrested person to submit to the chemical test or tests designated pursuant to §17C-5-4 of this code;
- At the time the test was requested, the law-enforcement officer administered the required written and verbal warnings required by §17C-5-4 and §17C-5-7 of this code; and
- The arrested person refused to submit to the chemical test or tests requested by the law-enforcement officer.
There are numerous legal defenses for a DUI refusal. That is why it is very important to contact an experienced DUI defense attorney immediately after being charged with DUI. We have had success in the past in challenging DUI refusals.