One question that clients often ask us is whether they have the right to refuse a breath or other DUI test if they get pulled over by police. The short answer is yes, but it could cost you. A person who refuses a breath test may be subject to arrest if the officer believes that he or she has been illegally drinking and driving. Once the arrest occurs, a person who declines a secondary test is likely to have his or her license revoked for at least 45 days. The West Virginia Supreme Court recently explained how the state’s “implied consent” law works.
Ms. Riner was arrested and charged with DUI following an incident in which a Berkeley County Sheriff’s Department officer observed her car cross the center line twice. After pulling Riner’s car over, the officer said he noticed that she smelled of alcohol. An investigating officer who arrived on the scene shortly thereafter said he also smelled alcohol and noticed that Riner’s eyes were bloodshot and that she was speaking quickly. Riner told the officer that she had had one beer before getting behind the wheel, but the cops said she failed a series of field sobriety tests and a preliminary breath test.
Riner declined to submit to a secondary breath, blood, or urine test after being transported to a local jail. She was presented with an implied consent form, according to the Court, which stated that her driver’s license would be revoked for at least 45 days –and up to life – if she declined the test. Riner refused to sign the document, and an officer instead signed his name. The Department of Motor Vehicles eventually revoked Riner’s license for six months for the DUI and for another year for refusing to submit to the blood test.
The DMV’s Office of Administrative Hearings later reversed the license revocation for refusal to submit to the test. It found that the officer hadn’t given Riner an adequate verbal warning of the consequences of refusing the test. Riner testified that the officer told her three times that she didn’t have to take the test. The officer, meanwhile, said he regularly told people the secondary test was their choice, and they didn’t have to take it if they didn’t want to. He added that he wouldn’t physically force Riner or anyone else to take the test. A circuit court later affirmed that decision.
The Supreme Court took a different position. Reversing the circuit court’s decision, the Court said the officer adequately warned Riner about her rights related to the secondary test. The high court added that it was outside the lower court’s purview to consider how Riner may have interpreted the information that the officer gave her about refusing the test. “The statute simply required that [the officer] read the implied consent statement to Ms. Riner and provide her with a copy of the same,” the Court explained. “As evidenced by both his testimony and his signature on the implied consent statement, [the officer] complied with those statutory duties.”
If you or a loved one has been charged with driving under the influence, the West Virginia criminal defense 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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