West Virginia’s DUI implied consent laws are found in W. Va. Code § 17C-5-4, 7, & 7a. The laws apply to both the preliminary breath test (PBT) and the secondary chemical test.
Preliminary Breath Test
Whenever a law enforcement officer has reasonable cause to believe that a person who committed a DUI related offense, that officer can administer a preliminary breath test. By law, any person who drives in WV has impliedly given his or her consent to submit to a preliminary breath test. Remember, the results of the preliminary breath test or PBT can only be used for purpose of guiding the officer in deciding whether an arrest should be made. The results of the PBT are not admissible in court.
Secondary Chemical Test
After a person is officially arrested or charged with a DUI related offense, then a law-enforcement officer can administer a secondary test of a person’s blood or breath. The secondary test is the most important test for purposes of criminal liability. This test is most commonly done on the Intox EC/IR II or Intoximeter machine. The secondary test can also be in the form of a blood test, which may require a warrant, depending on the circumstances.
If a person refuses to submit to the secondary chemical test, the test shall not be given. No one can make a person submit to a secondary test, and a person has the right to refuse. However, there are consequences to the refusal.
For a refusal to be legally valid, a person must be given the following warnings both verbally and in writing:
(1) That the person’s refusal to submit to the secondary chemical test, designated pursuant to subsection (d) of this section, will result in the revocation of his or her license to operate a motor vehicle for a period of at least 45 days and up to life;
(2) That, if a designated secondary chemical test is taken, the results of the test may be used against him or her in court as evidence of violating §17C-5-2 of this code or an ordinance of a municipality of this state which has the same elements as an offense described in said section; and
(3) That, if the person first submits to the requested secondary chemical test, the person has the right to have a test or tests of his or her blood performed as provided in §17C-5-9 of this code.
After a person is advised of the above warnings, he or she will have an opportunity to submit to or refuse to submit to, the secondary test. If a person refuses, the person is given 15 minutes after the refusal in which to change his or her mind. After that 15-minute period, the refusal is considered final, and the law-enforcement officer has no further duty to provide the person with an opportunity to take the secondary test.