West Virginia implied consent laws require drivers to submit to a blood, breath or urine test if they are arrested for a West Virginia DUI. Under most conditions the officer can decide which test they will , but if they offer a blood test you may have the option to request a urine or breath test. Refusal to take the test will result in having your license suspended.
Do I have to take the preliminary breath test after a West Virginia DUI?
Do not confuse the preliminary breathalyzer test with the chemical test. The breathalyzer may be offered before you are arrested for a West Virginia DUI and is similar to the field sobriety test. Breathalyzers are used primarily to establish probable cause for the DUI arrest. Generally, if the breathalyzer test indicates that your blood alcohol concentration is above the legal limit of 0.08% then the officer will request that you take a chemical test.
What If you refuse to take the preliminary test? It most likely will not matter. If they have additional evidence you are intoxicated they will most likely arrest you and ask you to submit to a chemical test. Under West Virginia law, however, they are supposed to give you notification that your license will be suspended if you refuse to take the test. More information about West Virginia's implied consent laws can be found in West Virginia statutes West Virginia Code 17C-5-4.
What penalties will I face for a chemical test refusal after a West Virginia DUI arrest?
If you refuse to take the test after the West Virginia DUI the police officer should give you a letter detailing the penalties for a test refusal. You will have 15 minutes to make a decision if you will take the test.
If this is your first test refusal, according to the West Virginia Code 17C-5-7, you can choose either a one year license suspension of your drivers license or a 45 day suspension with a one year installation of an ignition interlock device. Keep in mind, you have a set number of days to challenge an administrative license suspension by requesting a hearing but if you choose the 45 day suspension with interlock device you do not have the right to challenge the suspension.
Penalties for a test refusal become more severe if this is your second refusal. Second test refusals can result in a 10 year license suspension with a possible reinstatement after 5 years. If this is your third time to refuse a chemical test you will have your license permanently revoked.
Should I refuse the chemical test if arrested for a West Virginia DUI?
Most lawyers will tell you it is better to submit to the chemical test if arrested for a West Virginia DUI. The penalties can be severe including a 6 month jail sentence and up to a $500 fine but refusing could result in a year-long license suspension with no guarantees that you will not be convicted of drunk driving anyway. In fact, the state could use your refusal as evidence that you knew you were drunk.