Similarly to many other states, West Virginia has an implied consent law when it comes to DUI. During a traffic stop, a police officer may find it suitable to place a driver under arrest for suspicion of driving while intoxicated. Although the results of a breathalyzer test are inadmissible in court, the police officer would likely require the driver to submit to a chemical test at the station. By getting behind the wheel, the driver has implicitly consented to such a test, and refusal can lead to legal consequences.
Drivers are well within their rights to refuse a breathalyzer test. However, chemical tests are much different and much more accurate.
What happens if a driver refuses?
After refusing the chemical test, the driver would face an automatic revocation of his or her driver's license. This suspension lasts for a minimum of 45 days and could potentially last up to life if the driver has a lengthy DUI record. Many drivers feel tempted to refuse because evidence from this chemical test will be admissible in court. Ultimately, there is a lot to lose and little to gain by refusing, so it is in people's best interests to simply take the chemical test and move forward from there.
Are there defenses available for refusing?
After a license suspension, the driver can build a defense to attempt to get her or his license back. West Virginia law states the police officer must inform the driver of the consequences on the table for refusing the chemical test. In the event the officer did not tell the driver he or she would lose driving privileges through refusal, then the state could return the license. This notice should be in writing. Additionally, the officer can only make a driver submit to a chemical test after a valid arrest. That means evidence needs to be present to arrest the driver on suspicion of drunk driving.