Any driver—regardless of age—can be convicted of driving under the influence (DUI) for operating a motor vehicle in West Virginia with a blood alcohol concentration (BAC) of .08% or more or while under the influence of drugs or alcohol.
But West Virginia also has a "zero tolerance" policy for drivers under the age of 21 that penalizes underage drivers who have even a small amount of alcohol in their system. This article explains the details of an "underage DUI" violation along with the possible penalties.
A driver who's younger than 21 years old who operates a vehicle with a BAC of .02% to .08% can be convicted of an underage DUI. (The nomenclature "driving under the influence" is somewhat misleading because the driver's actual level of impairment is irrelevant.) Any underage driver who police have a reasonable basis to believe has consumed alcohol can be required to submit to a chemical test. In most cases, the chemical test is a blood or breath test. If the driver refuses an officer's lawful request to take a chemical test or produces a BAC of more than .02%, a myriad of penalties can follow.
Of course, underage drivers aren't immune from prosecution if their conduct qualifies as a standard DUI (sufficient impairment or a BAC of .08% or more).
The penalties associated with an underage DUI are typically less severe than those resulting from a standard DUI conviction. A first-offense underage DUI is a misdemeanor and carries a $25 to $100 fine as well as a 60-day license suspension. A second underage offense is also a misdemeanor but carries $100 to $500 in fines and 24 hours in jail. For a second offense, the driver's license will also be suspended for one year or until the driver is 21 (whichever is longer).
West Virginia is certainly not lenient on impaired driving but does offer certain programs that focus on rehabilitation and can help eligible offenders avoid some of the normal consequences of a conviction.
First-offense program. An underage offender with no prior convictions can enroll in the "Motor Vehicle Alcohol Test and Lock" program. This program requires the completion of a Safety and Treatment Program and the installation of an ignition interlock device (IID). But if the offender completes the program and avoids any IID or criminal violations for six months, the DUI charges will be completely dismissed and expunged.
Second-offense program. While repeat offenders can't get their charges dismissed via the Test and Lock program, participation in the program can reduce some of the conviction penalties. For example, drivers who participate in the program can often avoid the suspension entirely by installing an IID in their vehicle.
Aside from the criminal charges, an underage driver's BAC test results will also be sent to the DMV. If the driver failed the test, the penalties will be the same as for a conviction and will not overlap. However, if the driver refused to submit to a test, the driver's license will be revoked for 45 days and the driver must thereafter have an IID for at least one year.
Drivers are entitled to an administrative hearing prior to license suspension or revocation.