Updated by Linda Garrett


Written by W.B. Richardson
Updated and Edited by Christopher S. Moorehead



1. Overview of the West Virginia Statutory Scheme

2. Criminal Charge

3. Administrative Proceeding

4. Conclusion

The driving under the influence (hereinafter “DUI”) case involves issues that run the gamut from
probable cause to arrest and testing through constitutional matters such as search and seizure.
There is also a concurrent administrative proceeding which involves possible revocation of driving

1. Overview of the West Virginia Statutmy Scheme

West Virginia Code 17C-5-2 sets forth the statutory framework for the offense of Dill. The
seriousness of the punishment increases with injury or death to persons other than the driver [W.Va
Code 17C-5-2(a)-(c)]. Punishment is also increased for second and third offenses [W.Va. Code
17C-5-2(i) and G)], with the third offense being a felony. The same code section also addresses
Dill in the context of a person who is under twenty-one years old [W.Va. Code 17C-5-2(h)] and the separate offense of”Pennitting DUI” [W.Va. Code 17C-5-2(g)]. It is also worth noting that in West Virginia Code 17C-5-2(l), that convictions in a municipal court which meet certain requirements may be used as enhancements.

Succeeding sections of the same chapter of the code address other areas which are inherent in the
Dill case. West Virginia Code 17C-S-2a addresses the definition of”in this State,” as said term is
set forth in West Virginia Code 17C-5-2. The term is defined as meaning “Anywhere within the
physical boundaries of the State,” not just upon the highways. West Virginia Code 17C-5-4 addresses
implied consent, or the failure to submit to a designated test. West Virginia Code 17C-5-6,7,9 and
I0 all relate to the testing procedures and the consequences of refusing or failing the tests. This
list is an abbreviated review and any practitioner defending
a DUI case should certainly review the code themself in detail.

As stated previously, West Virginia Code 17C-5-2 does set forth the penalties for each offense
ofDU1. West Virginia Code 17-5-2(d) states that for first offense any person may be sentenced to
not less than one-day nor more than six·months in jail and fined not less than
$100.00 nor more than $500.00. Court costs will be in addition to the fine which is imposed. A
person convicted of DUI must serve a minimum of twenty-four hours in jail.
A second offense DUI charge carries a penalty of not less than six months nor more than one year in
jail and a fine, at the discretion of the court, of not less than $1,000.00 nor more than
$3,000.00 [W.Va. Code 17C-5-2G). Third offense is a felony which is punishable by a prison sentence
of not less than one year nor more than three years and a discretionary fine of not less than
$3,000.00 nor more than $5,000.00 [W.Va. Code 17C-5-2(k)].
Independent of the criminal charge which has been outlined in the preceding paragraphs, the
Department of Motor Vehicles conducts an administrative proceeding which focuses on the suspension
of driving privileges. A guilty plea or verdict of guilty which is not appealed will

result in the revocation of driving privileges without a hearing, as will the failure to timely
request the same after receiving notice from the Department of Motor Vehicles. The suspension for a
person convicted of first offense (and they submitted to the test) is currently six months with the
opportunity to lessen that by three months if a safety class is taken promptly. There are often
waiting lists for these classes and early attention to them is advised. Refusal of the designated
test (or also known as an implied consent violation) results in a one year suspension which cannot
be lessened Similar to the criminal proceedings, suspension of privileges is for longer periods
based of time if the charge is a second or third offense.
It must be emphasized.that the administrative·proceeding at the Department of Motor Vehicles is
completely.independent of the criminal.proceeding,.with the exception of the impact of a plea of
guilty prior to the administrative:proceeding. A person may be found “not guilty”criminally and
still have their driving privileges revoked. Likewise, a person may retain their driving privileges
and subsequently be convicted of the criminal charge. An out of state conviction forms the basis
for suspension on·a separate ground [W.Va. Code 17B-3-5(6)].
See Shingleton v. City ofRomney; 382 S.E. 2d64 (W.Va. 1989).

2. Criminal Charge

Effective representation of a person charged with DUI requires a working knowledge of· criminal
procedure in magistrate courts. West Virginia Code Chapter 50, articles one through 5 concern
magistrate court. There are also specific rules of criminal procedure for magistrate coUrts. Some
of the more important code sections relate to continuances [W.Va. Code 50-5-2], transfer to another
magistrate [W.Va. Code 50-4-7], time limitations for requesting a jury trial
(If the jury is not requested within a period of time, a jury trial is waived)[W.Va. Code 50-5-8]

and appeal of convictions in magistrate court to circuit court [W.Va. Code 50-5-13]. Sentences

may not be increased in circuit court in the event of an unsuccessful appeal of a bench trial.
State v. Bonham.317 S.E. 2d 50I(W. Va. 1984). Discovery is permitted in magistrate court and should
be sought by defense counsel in all cases.
Once representation is undertaken, investigation of the facts must begin. The defendant should be
questioned thoroughly concerning all activities, including meals or eating, both leading up to and
after the arrest. Persons who had contact with your client should be interviewed to ascertain their
knowledge of your client’s condition and anything else which might be helpful. Any medical
condition, including past surgeries, should be garnered as it may
relate to he ability to perform a sobriety:test. Alldocumentary’evidence should also be collected,
including: Intoxilyzer slips, testdesignation, accuracy·inspectiontests, the officer’s DUI
Information Sheet, jail records,. hospital records, and calibration.logs, just to name a few.
Next, a review of the proper procedures must be undertaken. By consulting the code as well as
applicable State· regulations; a determination may.be· made that proper procedures were not
followed. For instance, West Virginia Code 17C-5-8 mandates that a designated test be administered
within two hours· of the arrest. Regulations require that a twenty minute observation period take
place prior to having a subject undertake the designated test. If the
proper procedures were not undertaken, a motion in limine to prevent mention or introduction of the
test result may be appropriate. The result may be the ability to force the State to prove actual
intoxication rather than a presumption arising due to a test result of .10 or greater.
If the designated test was refused, counsel should file a motion in limine to prevent any mention
of the refusal at trial. State v. Cozart. 352 S.E. 2d 152 (W. Va. 1986).
In preparing for trial, counsel should consider attempting to gain a working knowledge of the Intoxilyzer or other designated testing device. These machines measure alcohol in the breath

and then extrapolate the amount of alcohol in the blood from that. As a result, there are grounds
to challenge the accuracy of the test in that the underlying chemical assumptions do not apply
equally to all persons. There are several treatises listed at the end of this chapter which should
aid in this preparation.
At trial, voir dire should be utilized to the fullest extent. Probe into people’s feelings as they
relate to alcohol use. It is a good time to constantly emphasize that the law does not forbid
drinking alcohol and driving, but does forbid driving while legally under the influence.
The designated breath testing equipment should be referred to as simply a machine. Jurors
understand that.machines do·not always perform as expected. That point.needs to be emphasized
The testimony of the· arresting officer may be attacked on.many grounds. Among those are that he or
she has already fonned an opinion and·are not objective. Tainted objectivity can then be argued to
the jury.·Field sobriety tests are·not·infallible. They must be.administered properly to provide
credible results: a proper foundation includes each step in the administration of field sobriety
tests. Other.areas-to attack include.the documentary evidence and any .. inconsistencies that may
arise there. The experience of the officer is directly relevant. So is the limited exposure to your
client and the basis for the stop.
A tactic for the defense is to have the officer describe in graphic detail all of the events
leading up to the arrest. By going through these steps in great detail, it can often be shown that
the defendant drove for several miles without error; or as stated previously, may have only been followed for a short distance. There are many other fertile grounds for challenge. Why was the defendant stopped? A sobriety checkpoint, or roadblock, may not be constitutionally set up. Cline v. Carte, 460 S.E. 2d 48 (W.Va. 1995). Reasonable suspicion is required for all stops. Did the officer actually

observe the defendant driving so that the offense occurred while he or she was present or did the
officer arrive after an accident? If so, was the defendant Mirandized? See Berkemer v. McCarty,
104 U.S. 3138 (1984). If a prior conviction is alleged, is it valid? See State v. Armstrong, 332

S.E. 2d 837 (W.Va. 1985), Sniffin v. Cline, 456 S.E. 2d 451 (W.Va. 1995). Did the accused request
an attorney before any sobriety tests were performed? Were chemical samples preserved for testing
by the defendant? Contra State v. SMdler, 336 S.E. 2d 535 (W.Va. 1985). Was the defendant denied an
independent chemical test? See State v. York, 338 S.E. 2d 219 (W.Va.
1985). Did the officer haveprobable·cause to.arrestthe defendant? See State v. Davis, 464 S.E.

2d 598 (W.Va. 1995) andDonahuev. Cline,437 S.E.. 2d.262 (W.Va. 1993).

3. Administrative Proceeding ..

When a person is arrested for DUI, his or her driving privileges are put in jeopardy. An affidavit
must be sent to the Department ofMotor Vehicles within a forty-eight hour period of the arrest.This
affidavit actually begins the suspension proceeding. A suspension notice is then
sentto the concerned operator by certified mail atthe· address listed in the Department’s records.
It is for this reason that the Department should be notified of all address changes. Lack of notice
is no defense if the Department has not received the new address. See State ex rei. Mason v.
Roberts.318 S.E. 2d 450 (W.Va. 1984). Upon receipt of the notice, the driver has ten days to
request a hearing on the suspension by certified mail. If the tenth day is a Saturday, Sunday or a
holiday, the next judicial day will be permitted West Virginia Code 2-2-2. By requesting the
hearing the suspension order is stayed and the defendant may continue to drive while awaiting
the hearing and decision therefrom.

The hearings are conducted in a somewhat informal manner under the auspices of the

West Virginia Administrative Procedure Act. See West Virginia Code 29A-1-l. There is almost always
a delay of at least one month prior to the hearing date; West Virginia Code 17C-5A-2 provides that
the hearing shall be within 180 days. Hearings are held in the county of arrest; for good cause,
the hearing site may be changed to a new location.
It is essential that the Department of Motor Vehicles be informed of the intent to challenge the
designated sobriety test result. If not, the test result will be admissible without further need
for foundation. The hearing will be tape recorded before an examiner appointed by the Department.
The hearing examiner does not make the decision. Thus; the procedure may be subject to
challengeThe·ultimate decision ,maker·:hasJittle’ with·which -to assess· the credibility
of witnesses.

The issue.to be decided, by. a preponderance of the evidence, involves·either (1) did the operator
drive a motor vehicle while under the influence of alcohol, or (2) did the operator refuse the
designated secondary chemical test. See Hinerman vWest Virginia Department of
Motor Vehicles.431 S.E. 2d 692 (W.Va; 1993). An unfavorable decision may be appealed to the circuit
court within thirty days under the grounds enumerated.in theAdministrative Procedures Act. The
circuit court may enjoin the suspension for only thirty days.
Work permits are nogiven under any circumstances. A new auto.lock device which requires the
defendant to place a monitor on his or her ignition may be utilized to reduce suspensions.
If the action to stay the suspension is unsuccessful, the concerned driver must begin his license
suspension. Driving while your privilege to drive is suspended for DUI results in additional
criminal and administrative sanctions which can be more severe than the DUI
consequences. See West Virginia Code 17B-4-3.
··– –
A safety and treatment program must be completed before the driving privileges will be

estored. The programs are administered on a regional basis. All administrative hearing costs

nd the cost of the treatment program must be borne by the defendant. They must be paid befor he
privileges will be restored.
If the concerned driver lives out of state, the Department will suspend driving privileges n West
Virginia. The Department will usually permit the driver to enroll in a treatment progra n their
home state. Counsel should ascertain what impact the conviction/suspension will have
on their client in their home state.

4. Conclusion

his brief overview should assist in preparation and the defense· of a driver in bot
dministrative and·criminal proceedings.

“Drinking and Driving Law Letter,” Chandler Publishing, Minneapolis, MN.

Richard Erwin, Defense of Drunk Driving Cases, Matthew Bender Publishing Company.

Dr. Walter J. Frajola, Ph.D., Defending Drinking Drivers,James Publishing, Corona del Mar,

Reese I. Joye, Jr. and Jim Lovett, Drunk Driving, Kluwer Publishers, New York, NY. Stephen M Brent
and Sharon P. Stiller, “Handling Drunk Driving Cases,”Lawyers Co­
tephen M Brent and Sharon P. Stiller, “Handli
perative Publishing Company, Rochester, NY.