West Virginia’s DUI Implied Consent Law and Refusing a Breathalyzer or Blood Test

West Virginia law requires drivers lawfully arrested for a DUI to agree to a blood or breath test.

By , Attorney (University of San Francisco School of Law)

While investigating during a driving under the influence (DUI) stop, it's common for the officer to ask the driver to take a breath or blood test. The purpose of these tests is to determine the amount of alcohol or drugs in the driver's system. The driver's blood alcohol concentration (BAC) or the concentration of drugs in the driver's blood is often used by prosecutors to prove a DUI in court.

This article gives an overview of West Virginia's implied consent law and the consequences of an unlawful refusal.

West Virginia's DUI Implied Consent Requirements

West Virginia's implied consent law specifies that any person who holds a West Virginia driver's license or operates a vehicle within the state is deemed to have consented to a blood or breath test.

For a DUI arrest to be lawful, the officer must have probable cause to believe that the driver was driving or in actual physical control of a vehicle while under the influence of alcohol or drugs or that an underage driver was operating a vehicle after consuming alcohol.

License Suspension for Refusing a Breathalyzer or Blood Test in West Virginia

An unlawful refusal in violation of the state's implied consent law will result in license suspension. The length of the suspension generally depends on how many prior refusal offenses the driver has.

The suspension period is:

  • one year for a first offense
  • ten years for a second offense, and
  • life for a third or subsequent offense.

However, after a second implied consent suspension, it's possible to get your license reinstated after five years.

Contesting an Implied Consent Suspension in West Virginia

Drivers who wish to contest their refusal-related suspension can request an administrative hearing. If you're thinking of contesting a suspension, it's a good idea to contact an attorney who can explain how it works, including the deadlines for requesting a hearing.

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