Most West Virginia drivers are aware of laws that prohibit the operation of a motor vehicle if the driver is under the influence of alcohol or has Blood Alcohol Content (BAC) in excess of 0.15%. These same drivers usually do not understand the legal power of a police officer to compel a person suspected of drunk driving to submit to a Field Sobriety Test. A field sobriety test usually consists of having the suspect breathe into a machine that can determine BAC from a sample of the driver’s breath. The penalty for refusing to submit to a Field Sobriety Test is suspension and possible revocation of the driver’s license to operate a motor vehicle in West Virginia.
Implied consent
West Virginia law states that every person who obtains a license to operate a motor vehicle on the state’s highways has implicitly agreed to take a field sobriety test whenever asked to do so by a state or local law enforcement officer. A law enforcement officer may request that a field sobriety test be given to the suspect if the officer has reasonable grounds to believe that the suspect has a BAC in excess of the state’s limits.
West Virginia BAC limits are 0.02% for persons under 21. The BAC for persons older than 21 is 0.15%. Law enforcement officers in West Virginia can only use the preliminary field sobriety test to determine whether to arrest the suspect for committing a crime involving the operation of a motor vehicle while intoxicated. If the officer chooses to arrest the suspect, a second BAC shall be taken, but the driver may refuse to take the secondary test.
Penalties for refusing the test
The arresting officer must, if the suspect refuses the secondary request for a BAC test, prepare a written statement to be submitted to the Commissioner of the Division of Motor Vehicles setting forth the facts of the incident. This statement can be used in a hearing before the commission to determine whether the suspect’s license to drive should be suspended.
If the court finds by a preponderance of the evidence, after the suspect is afforded a hearing, that the suspect in fact refused a request to submit to the secondary test, the court shall direct the Commissioner to revoke the suspect’s drivers’ license for a period of 45 days. A second refusal can result in a suspension lasting 10 years. A lifetime revocation could be the result if a person whose license was previously revoked for refusing a secondary test refuses a request for a secondary field sobriety test for a third time.
Obtaining legal support
West Virginia’s implied consent is far more complex than similar laws in other states. Anyone facing a request for a secondary test may wish to seek counsel from an experienced criminal defense attorney.
