West Virginia DUI: Refusal to Take a Blood, Breath, or Urine Test

In West Virginia, if you get pulled over for a DUI (driving under the influence) and the officer asks you to take a blood, breath, or urine test, do you have to take one? What happens if you refuse?

Implied Consent

West Virginia law requires you to take a blood, breath, or urine test if you are arrested for a DUI. West Virginia’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC).   The officer gets to choose which test you take, but if he or she chooses a blood test and you refuse, then the officer will offer you a breath or urine test. If you submit to the breath or urine test, then you will not be punished for refusing the blood test.

You could be asked to take a preliminary breath test even before you have been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. If you take this test and your results are at or above the legal limit, then the officer will arrest you and ask you to take a second chemical test. The officer must also give you written notice that if you refuse the second test, then your license will be suspended. You could refuse to take the preliminary test, but if you do and the officer has some other reason to think you have been drinking, then he or she can still arrest you based on that other reason and request a chemical test, which you cannot refuse without penalty.  

Also, you could be arrested for a DUI even if you are not driving. If you let another person drive your car when you know that person has been drinking or taking drugs, then the state punishes you the same as the drunk driver. You will have to pay a fine from $100 to $500 and a judge could send you to jail for up to six months.

You can read West Virginia’s implied consent law in the West Virginia Code 17C-5-4, and about the punishment for knowingly permitting a drunk driver to drive your car in the West Virginia Code 17C-5-2.

Refusing to Take the Test


1st  Offense

2d Offense

3rd  Offense

Refusal to take test

1 year license revocation (or 45 days, with an additional 1 year of ignition interlock device)

5 or 10 year license revocation

Lifetime license revocation

Once you are arrested, the officer should tell you and give you written notice that if you refuse a chemical test you will lose your license for at least 45 days and potentially for life. You have 15 minutes to decide whether to take a test. When that time is up, if you have not decided then the officer will consider it a refusal and will not give you a test.

The penalties for refusal begin with a one-year suspension of your license or a 45-day suspension plus one year with an ignition interlock device on your car. If you choose the second option, then you cannot request a hearing to challenge your suspension.  For your second refusal, the suspension period jumps to ten years and there is no option for a shorter suspension with an ignition interlock device. You could, however, apply to have your license reinstated after five years.   For your third or any subsequent refusal, you will lose your license for life.

The consequences of refusal are found in the West Virginia Code 17C-5-7.

Should You Refuse to Take a Mandatory DUI Test in West Virginia?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in West Virginia, you face jail time up to six months and you must pay a fine from $100 to $500. This is more severe than a year-long suspension for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over.08%, the legal limit for those over 21.  In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in West Virginia or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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