West Virginia’s DUI Laws and Conviction Penalties

West Virginia, like all states, prohibits driving while under the influence of drugs or alcohol. But what does it mean to be "under the influence" and what will happen if you are convicted of a DUI offense?

This article explains how West Virginia's DUI laws define the elements of impaired driving and outlines the possible penalties for DUI convictions.

West Virginia's DUI Laws

In order to prove a DUI charge in court, prosecutors generally must show the defendant was:

• driving a motor vehicle, and
• under the influence of drugs or alcohol.

However, these two "elements" require a bit more explanation.

How West Virginia's DUI Laws Define "Driving" of a Vehicle

To support a DUI conviction in West Virginia, the prosecutor must prove that the accused was driving a motor vehicle on a public highway or street. This definition requires proof of manipulation of the controls as well as the actual movement of the vehicle.

However, the officer does not have to actually witness the offender driving. For instance, an impaired person found crashed into a ditch could be convicted of a DUI. In this scenario, it's pretty obvious that he or she must have been driving prior to the officer showing up.

How West Virginia's DUI Laws Define "Under the Influence"

Under West Virginia's DUI laws, a person is considered to be under the influence if:

• impaired by any substance to a degree that renders him or her incapable of safely driving, or
• he or she had a blood alcohol concentration (BAC) of .08% or more.

In other words, a DUI can be based on actual impairment or the driver's BAC level.

Penalties for a 1st, 2nd, and 3rd DUI Conviction in West Virginia

The minimum and maximum penalties for a DUI are set by statute and vary based primarily on how many prior DUI convictions the driver has within the last ten years.

Jail Time and Fine for West Virginia DUI Convictions

Below are the possible and mandatory penalties for a first, second, and third-offense DUI.

House Arrest for West Virginia DUI Convictions

The minimum jail period for a repeat DUI offense can't be waived or suspended, but the court can permit the offender to serve the jail sentence under house arrest. The offender must be electronically monitored for at least five days for a second-offense DUI and for at least ten days for a third offense.

During house arrest, the offender is permitted to leave for work and other essential activities. The court can impose other restrictions such as abstaining from drugs or alcohol and submitting to random testing.

Aggravating Factors for West Virginia DUI Sentencing

Certain aggravating factors can lead to penalty enhancements for a DUI conviction.

West Virginia's Habitual User Enhancement

Certain prior offenses can result in a person being considered a habitual user of narcotic drugs. Impaired driving by such a person will result in a minimum of one day in jail, $100 to $500 in fines, and a six-month license revocation.

West Virginia's DUI Enhancement for Child Passengers

An impaired driver who is transporting a passenger under the age of 16 will face increased penalties. A conviction carries two days to 12 months in jail, $200 to $1,000 in fines, and a one-year license revocation.

West Virginia's Substance Abuse Treatment Requirement for DUI Offenders

Offenders are also required to complete a state-approved comprehensive safety and treatment program. The program must be completed prior to license reinstatement.

West Virginia's Felony DUI Penalties

In West Virginia, a third or subsequent DUI conviction in a ten-year period will be a felony and carry the same penalties. However, there are other ways a DUI can be charged as a felony.

Felony DUI Charges in West Virginia for Serious Injuries

An impaired driver who causes serious injury to another person can be charged with felony DUI. A conviction carries two to ten years in prison, $1,000 to $3,000 in fines, and at least five years of license revocation.

Felony DUI Charges in West Virginia for Fatalities

An impaired driver who causes the death of another person can be charged with felony DUI. A conviction carries three to 15 years in prison, $1,000 to $3,000 in fines, and a ten-year license revocation.

License-Related Penalties for 1st, 2nd, and 3rd DUI Offense in West Virginia

A DUI arrest will often lead to license-related penalties, even if the driver isn't convicted of a DUI in court. These penalties vary based on the driver's cooperation with testing and level of impairment, as well as the number of prior DUI-related revocations within the last ten years.

License-related penalties can result from a DUI arrest and/or conviction.

West Virginia's Implied Consent Law

West Virginia's implied consent laws require all persons arrested for a DUI to submit to a breath or blood test. These tests are used to determine the presence and amount of any consumed drugs or alcohol and failure to comply with testing can result in license-related penalties.

License Revocation for Refusing Testing in West Virginia

When a person arrested for DUI unlawfully refuses a breath or blood test request, the officer will seize the driver's license and submit a report to the Division of Motor Vehicles (DMV). The driver's license will be revoked for one year for a first offense and ten years for a second offense. An unlawful refusal with two prior refusal offenses will result in lifetime driver's license revocation.

License Revocation for Failed Alcohol Tests and DUI Conviction in West Virginia

Drivers who submit to testing and produce an unlawful BAC or are convicted of DUI will also face license revocation by the DMV. A test failure or a DUI conviction will result in a six-month license revocation (one year if the driver's BAC was .15% or more). A second offense results in a five-year revocation and any subsequent offense results in permanent revocation.

West Virginia's Underage DUI Law

West Virginia has a "zero tolerance" policy for the consumption of alcohol by drivers who are under the age of 21. A driver under the age of 21 who has a BAC of at least .02% but less than .08% can be convicted of an underage DUI.

An underage DUI conviction will result in the following penalties.

• First offense. A first-offense underage DUI will result in $25 to $100 in fines and a 60-day license suspension.
• Repeat offense. A second or subsequent underage DUI carries $100 to $500 in fines and 24 hours in jail. The driver's license will be suspended for one year or until the driver turns 21 (whichever is longer).

An underage driver with a BAC of at least .08% or who is "under the influence" (as defined above) can instead be charged with a standard DUI.

Motor Vehicle Alcohol Test and Lock Program (MVATL)

West Virginia has a monitored sobriety program that can reduce or eliminate many of the penalties associated with a DUI. The program requires the use of an ignition interlock device (IID) for a set period of time. However, participation in the program allows drivers revoked for DUI to operate during at least part of the suspension period.

Drivers who have been permanently revoked due to a third or subsequent DUI conviction can apply for the MVATL program after one year of revocation. If the driver successfully completes three years with an IID as well as any required treatment, he or she can apply for reinstatement.

Drivers with no prior DUIs can actually be eligible for dismissal of the DUI offense if they successfully complete the MVATL program without any violations.

Talk to an Attorney

If you've been arrested for driving under the influence in West Virginia, it's a good idea to talk to a DUI lawyer. DUI law is complicated, and the facts of each case are different. A qualified DUI attorney can analyze your case and advise the best course of action.