If you have been arrested for DUI in West Virginia, you have the right to demand that a blood, breath, or urine test be taken within the first two hours of the arrest. If the test happens, you also have the right to inspect the specimen independently of any tests performed by the police. As the state’s Supreme Court recently explained, the cops’ failure to make the sample available is a violation of your right to due process under the law.
Ms. Divita was charged with driving under the influence of controlled substances, and her license was revoked, after an incident in which she was pulled over while driving on I-64 in Kanawha County. Sgt. O’Bryan, the officer who initiated the traffic stop, later said that he observed Divita’s car swerving and saw her almost hit a guardrail. Divita, however, said she dropped her cell phone while steering the car, which caused her to swerve. O’Bryan ordered Divita to get out of the car after he noticed a plastic baggie with pills in it as Divita was searching her purse for her driver’s license. He said that her speech was slurred and that she seemed confused. O’Bryan placed Divita under arrest after searching her purse and finding 13 alprazolam pills and 15 oxycodone pills.
Divita later failed two field sobriety tests, according to O’Bryan. She also agreed to give a blood sample, which was sent to the West Virginia State Police Lab and tested for alcohol only. O’Bryan said he eventually destroyed the sample, which tested negative, after the conclusion of the criminal case against Divita, but before the administrative proceedings related to the license revocation. A hearing officer later found that the evidence was sufficient to show that Divita was driving while impaired.