The DUI Stop
W. Va. Code § 17C-5-2 and W. Va. Code § 17C-5-4 — an impaired state, a roadside breath test, and a secondary test after arrest
Driving in an impaired state means driving under the influence of alcohol, a controlled substance or another drug, or with an alcohol concentration in the blood of eight hundredths of one percent or more, by weight.
Consent by driving. Anyone who drives in West Virginia is considered to have consented to a preliminary breath analysis and a secondary chemical test of blood or breath. Absent written consent, a blood test may not be performed without a warrant.
- A person under arrest who refuses the secondary test is not given it.
- The person is first given written and verbal warnings, then the chance to submit or refuse.
- A refusal becomes final after 15 minutes, during which the person may take it back and submit.
| Offense | The penalty |
|---|---|
| OffenseFirst, under fifteen hundredths | The penaltyA misdemeanor, up to six months, a fine of not less than $100 nor more than $500, and revocation |
| OffenseFirst, at fifteen hundredths or more | The penaltyA misdemeanor, not less than two days nor more than six months, and a fine of not less than $200 nor more than $1,000 |
| OffenseSecond | The penaltyA misdemeanor, not less than six months nor more than one year |
| OffenseThird and later | The penaltyA felony, not less than two nor more than five years |
Testing is also limited by the Fourth Amendment. The Supreme Court of the United States has held that a breath test may be taken without a warrant as part of a lawful arrest for drunk driving and a blood test may not; that a driver may not be criminally punished for refusing a blood test where no warrant was obtained; and that the natural fall of alcohol in the blood does not by itself create an emergency excusing a warrant in every case, which is decided case by case on all the circumstances. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Injury, death, or a child under 16 in the car raises the offense. A particular case is a question for a licensed West Virginia attorney.
Sources for this section (5)
- W. Va. Code § 17C-5-2 — Driving under influence of alcohol, controlled substances, or drugs; penalties
- W. Va. Code § 17C-5-4 — Implied consent to test
- W. Va. Code § 17C-5-7 — Refusal to submit to tests
- Birchfield v. North Dakota, 579 U.S. 438 (2016) — A breath test may be taken incident to arrest, a blood draw needs a warrant
- Missouri v. McNeely, 569 U.S. 141 (2013) — The natural fall of blood alcohol is not by itself an emergency justifying a warrantless draw
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed West Virginia attorney.