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17C-5-2 of the W.Va. Code

DUI 1^st (misdemeanor) – Mandatory minimum 24 hours up to six months and a $100 to $500 fine. (*5 ways to be charged: under the influence of alcohol; under the influence of any controlled substance; under the influence of any other drug; under the combined influence of alcohol/controlled substances &/or any other drug; or, has an alcohol concentration of eight hundredths of one percent or more by weight –i.e. “.08”.) Note: Although rebuttable, a ‘presumption’ of under the influence is present if breath sample is within two hours of arrest.

Sub DUI 1^st charges (all misdemeanors):

• DUI w/ Minor – Mandatory 48 hours up to one (1) year and $200 to $1000 fine;
• DUI w/ Injury – Mandatory 24 hours up to one (1) year and $200 to $1,000 fine;
• Habitual User of Narcotic Drugs or Amphetamine (or any derivative thereof) – 24 hours up to six months and $100 to $500 fine.
• Permitting DUI – Up to six (6) months –no mandatory minimum- and $100 to $500 fine.
• Permitting Habitual User of Narcotics, Amphetamine, or derivative is up to six (6) months and $100 to $500 fine.
• (*”knowingly” is permitting standard)

DUI 2^nd (misdemeanor) – (mandatory minimum) Six (6) months up to one (1) year and discretionary Court imposed fine of $1,000 to $3,000.

DUI 3^rd/Subsequent (felony) – (mandatory minimum) 1 to 3 in State Penitentiary and discretionary Court imposed fine of $3,000 to $5,000.

**In order to enhance up to 2^nd offense or 3^rd offense/subsequent, prior conviction(s) must be within ten (10) years of instant arrest.

**Out of State conviction admissibility is governed by whether or not the offered prior(s) would have been a conviction(s) in our DUI Code and subsections therein.

**Can be charged with 2^nd offense, 3^rd offense/subsequent even though the offered/admissible prior(s) is still pending in any nationwide criminal court so long as result obtain is a valid and admissible dui conviction per our State Code by time instant case goes to trial.

D.W.M.A. (driving w/ a measurable amount - “baby dui”) – If between the ages of 18 and 21 and alleged b.a.c. is between .02 & .079 then can have charge automatically dismissed by motion to the Court in exchange for documented completion of a six week alcohol safety treatment course.

DUI with Death (felony) – If proximate cause of death within one (1) year following incident, coupled with reckless disregard of safety of others being present, not less than one (1) year nor more than ten (10) years in the State Penitentiary and shall be fined not less than $1,000 up to $3,000. Note: Misdemeanor dui w/ death version in same Code sub-section is 90 days up to one (1) year and a $500 to $1,000 fine, with the distinguishing factor being a negligence type standard versus that of reckless disregard standard for felony enhancement.

A few further points of note:

-Per State Supreme Court (Blankenship), one can be charged with multiple dui sub-sections from one incident such as dui; dui > .08; dui w/ minor; dui w/ injury, etcetera.

-Per statute, one can petition the Court for the alternative sentence of home incarceration provided sentence is minimum 30 days.

-Per statute, one can petition the Court for the alternative sentence of work release.

-Per statute, community service (at 8 hours c/s per day of jail), above mandatory minimums, can also be petitioned to Court.

DMV/License Penalties

17C-5A-1a of W.Va. Code

1^st offense w/ breath sample – six (6) months w/ eligibility of reinstatement in 90 days provided six week alcohol safety treatment course and reinstatement fee are both in place prior.

1^st offense w/ upheld “refusal”/Implied Consent offense – flat one (1) year suspension;

2^nd offense – ten years (mandatory “blow tube” participation – see below).

3^rd offense – life (mandatory “blow tube” participation – see below).

*Basically, although listed in statute as above, 2^nd’s or greater come with one (1) year flat suspension –no reduction- and mandatory blow tube thereafter for one year for each offense (i.e. 2^nd offense is one year no driving and two years of blow tube, 3^rd offense is one year with no driving and three years of blow tube, etc.)

DUI w/ Death (felony reckless disregard) – ten (10) year suspension, no reduction, and is for life if ever had license dui related suspension in previous 10 years of instant arrest.

DUI w/ Death (misdemeanor negligent standard) – five (5) year suspension, no reduction, and if for ten (10) years if ever had license dui related suspension in previous ten years of instant arrest.

DUI w/ Injury – Two year suspension. *If prior dui related suspension in prior ten years from instant arrest, period is ten years. If two prior suspensions in said period suspension period is for life.

Baby DUI (age 18 to 21 w/ b.a.c. .02 - .079) – Suspension is 60 days.

DUI w/ Minor in Vehicle – One year suspension. If prior dui suspension within 10 years it is a ten (10) year suspension. If two prior dui suspensions of any kind it is a life suspension.

Note: potential reduction in mandatory suspension periods comes via our Alcohol Test and Lock Program – i.e. “blow tube” participation (safety treatment course enrollment mandatory requirement). They are as follows:

Voluntary Participation:

DUI 1^st offense w/ breath sample – 30 days no driving and 5 months “blow tube.”

DUI 1^st offense w/ refusal – 30 days no driving and 9 months “blow tube.”

Permitting 1^st offense – 30 days no driving and 5 months “blow tube.”

DUI w/ Minor in Vehicle 1^st offense – 60 days no driving and 10 months “blow tube.”

DUI w/ Bodily Injury 1^st offense – 60 days no driving and 1 year “blow tube.”

DUI w/ Misdemeanor Death 1^st offense – 6 months no driving and 2 years “blow tube.”

DUI w/ Felony Death 1^st – One year no driving and two years “blow tube.”

Under 21 1^st offense – 30 days no driving and six (6) months “blow tube.”

Under 21 2^nd offense or greater – 60 days no driving and 1 year “blow tube.”

Mandatory Participation:

Any 2^nd or subsequent alcohol-related offense – One (1) year no driving and One (1) year mandatory “blow tube” for each offense/revocation that occurred within ten (10) years proceeding instant arrest.

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