West Virginia law gives drivers pulled over by the police a pretty significant incentive to submit to breath and possibly other tests. If you don’t, you could lose your license. There may be certain circumstances in which a driver can legitimately decline to take a test. A recent ruling out of the state Supreme Court, however, is a good example of how restrictive the law is.
A South Charleston police officer stopped Mr. Hall’s car one evening in February 2011 after observing it traveling in the wrong direction in the northbound lanes of Montrose Avenue. The officer later said that Hall appeared disoriented and confused and had some trouble finding his driver’s license. When asked to get out of the car, the officer said Hall appeared unsteady on his feet. Hall reportedly told another officer who arrived on the scene that he’d been drinking with his boss. The officers arrested Hall after he performed poorly on one field sobriety test and refused to perform two other tests.
Hall later declined to take breath tests once he arrived at the police station. After declining twice, he said he’d like to give a blood test. He was transferred to a local hospital to have his blood taken. But when the arresting officer tried to submit the sample to the state police laboratory, he was told that the lab wasn’t currently accepting samples. Hall’s blood sample wasn’t submitted for analysis and instead remained at the police department. The DMV revoked Hall’s driver’s license and commercial license for six months for driving under the influence and for one year for refusing the breath test.
The Office of Administrative Hearings later rescinded the decision, however, finding that the cops had allowed Hall to believe that his license wouldn’t be revoked if he asked for the blood test in lieu of the breath test. The OAH said Hall was denied a blood test because his sample was never analyzed. This, the OAH concluded, effectively denied Hall his due process rights and was grounds for overturning the revocation of his license. A circuit court later affirmed the decision.
The Supreme Court reversed the decision in part on further appeal. As the Court explained, West Virginia law states that “any person who drives a motor vehicle in this state is considered to have given his or her consent by the operation of the motor vehicle to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood.” The Court has previously held that the DMV can revoke the license of any person who refuses to take such a test.
In this case, the evidence showed that Hall twice declined to take a breath test once he arrived at the police station and after being read his rights under the implied consent law. Hall signed a document stating that he was aware that his refusal to take the test would result in the revocation of his license. “At that point, Mr. Hall’s refusal of the breath test was complete, and he had been made aware that the penalty for refusing the breath test was license revocation,” the Court said. It was only well after this conversation occurred that an officer asked Hall one final time whether he wanted to take the breath test and Hall responded that he would prefer to do the blood test. As a result, the Court said the DMV properly revoked the license for one year.
Nevertheless, the Court said the DMV couldn’t revoke Hall’s license for an additional six months for DUI. It ruled that Hall was denied his due process rights by not having the blood sample tested.
If you or a loved one has been charged with driving under the influence, the West Virginia DUI lawyers at the Wolfe Law Firm can help. Our firm has been serving clients throughout the state for more than 25 years. Call us at 1-877-637-5756 or contact us online for a free consultation.
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