West Virginia DUI Laws, Penalties & Defense Strategies

By J. Brandon Shumaker & J. Tyler Slavey  ·  Slavey & Shumaker PLLC  ·  Morgantown, WV Criminal Defense Attorneys  ·  Last updated September 29, 2026

Quick Answer: A West Virginia DUI charge is handled entirely in criminal court. Since the Senate Bill 130 amendments took effect July 1, 2020, there is no separate DMV administrative hearing. The DMV revokes or suspends a license only after the court acts: a conviction, entry into the DUI Deferral Program, or a court order finding that you refused the secondary chemical test (W. Va. Code § 17C-5A-1a). A standard first offense under § 17C-5-2(e) carries up to six months in jail, a fine of $100 to $500, and a six-month license revocation. Qualifying first-time defendants charged under § 17C-5-2(e) may use the Deferral Program under § 17C-5-2b, which can end in dismissal and a later expungement of court records. Two deadlines start right away: 30 days from arrest to notify the court about the Deferral Program, and 30 days from your first court appearance to request a refusal review hearing if you are accused of refusing the test. Contact a Morgantown DUI attorney as soon as possible after an arrest.

Table of Contents

  1. What Counts as DUI in West Virginia
  2. The Single-Track System: One Court
  3. DUI Penalties by Offense Level
  4. Aggravating Factors
  5. The WV DUI Deferral Program
  6. Implied Consent & Refusal
  7. Ignition Interlock Requirement
  8. Collateral Consequences
  9. Defense Strategies
  10. Drug DUI & Drug Recognition Expert
  11. Underage DUI
  12. CDL Holders & Commercial Driver DUI
  13. Felony DUI: Injury & Death
  14. What to Do After a DUI Arrest
  15. Choosing a Morgantown DUI Attorney
  16. Frequently Asked Questions

1. What Counts as DUI in West Virginia

West Virginia’s DUI statute, W. Va. Code § 17C-5-2, is broader than most people assume. You can be charged with DUI without appearing visibly drunk, without failing a field sobriety test, and even without the vehicle moving.

Under § 17C-5-2(a)(1), the statute defines being in an “impaired state” as:

  • Being under the influence of alcohol
  • Being under the influence of any controlled substance
  • Being under the influence of any other drug or inhalant substance
  • Being under the combined influence of alcohol and any controlled substance or other drug
  • Having a blood alcohol concentration (BAC) of 0.08% or more, by weight

The BAC thresholds vary by driver category:

Driver Category BAC Limit Statutory Source
Standard driver (age 21+) 0.08% § 17C-5-2(a)(1)(E)
Any driver: aggravated DUI threshold 0.15% or more § 17C-5-2(f)
Driver under 21: zero tolerance 0.02% to under 0.08% § 17C-5-2(j)
CDL holder operating a CMV 0.04% § 17E-1-14(a)

“Actual Physical Control”

West Virginia courts recognize the “actual physical control” doctrine: a person may be charged with DUI even if the vehicle was stationary. If you are in the driver’s seat with the keys accessible, you may face a DUI charge. The specific facts, such as where the keys were, whether the engine was running, and the vehicle’s location, all matter and are things your attorney will examine carefully.

Drug DUI

For drug-impaired driving, § 17C-5-2(a)(1) does not require proof of a specific concentration. Any evidence of impairment by a controlled substance, including one that was validly prescribed, can support a charge. This distinguishes drug DUI from alcohol DUI, where the per se BAC threshold provides an objective standard.

2. How West Virginia DUI Cases Work: One Court, One Proceeding

This is one of the most important, and most frequently misunderstood, aspects of West Virginia DUI law.

West Virginia eliminated its separate DMV administrative DUI hearing system. Senate Bill 130, effective July 1, 2020, transferred authority over DUI-related license revocation to the criminal courts. It ended the Office of Administrative Hearings’ jurisdiction over DUI license appeals for offenses occurring on or after July 1, 2020, and required the Office to terminate on July 1, 2021, or earlier if it resolved its pending matters first.

Under the current law:

  • Your license cannot be revoked based solely on your arrest. Revocation requires a conviction, entry into the Deferral Program, or a court order finding refusal under § 17C-5-7a (§ 17C-5A-1a).
  • If you are not convicted, your license is not revoked on the DUI charge.
  • Everything happens in one court. Criminal penalties and the orders that lead to license revocation both come from the same criminal court.
  • The DMV acts on court orders. Upon conviction or a Deferral Program order, the clerk of court transmits the order to the DMV Commissioner under § 17C-5-2(t). A conviction is forwarded only after the appeal window passes without an appeal: 20 days after sentencing in magistrate court, 10 days after sentencing in municipal court, and 30 days after judgment in circuit court (§ 17C-5A-1a(b)).

The One Remaining Court-Conducted License Proceeding: Test Refusal

Under § 17C-5-7a, when a driver is accused of refusing the secondary chemical test, the court handling the DUI charge conducts a refusal review hearing on request. If the court finds a refusal occurred, it enters an order that is transmitted to the DMV Commissioner, who then revokes the license. The county prosecutor or municipal attorney appears at the hearing, and the DMV is not a party. This runs through the court, not a separate DMV hearing, and is covered in detail in Section 6.

Why This Matters to Your Defense

Winning the criminal case, or obtaining a non-DUI disposition, protects your license. This makes the criminal defense the central objective of every West Virginia DUI case. For more on the criminal defense process, visit our West Virginia Criminal Trial Process page.

Charged with DUI in Morgantown?

Free, confidential consultation about your charge, your license, and your options.

Request Free Consultation

3. West Virginia DUI Penalties by Offense Level

All penalties below are drawn directly from W. Va. Code § 17C-5-2. For second and subsequent offenses, West Virginia counts prior DUI convictions, and any prior Deferral Program probation, for offenses that occurred within the 10 years before the current arrest (§ 17C-5-2(n)).

1st Offense: Standard
BAC under 0.15%  ·  § 17C-5-2(e)

  • Jail: Up to 6 months (no mandatory minimum)
  • Fine: $100 to $500
  • License revocation: 6 months
  • Safety & Treatment Program required

1st Offense: Aggravated
BAC 0.15%+  ·  § 17C-5-2(f)

  • Jail: Mandatory minimum 2 days (≥24 hrs actual confinement); up to 6 months
  • Fine: $200 to $1,000
  • License revocation: 1 year
  • Safety & Treatment Program required
  • No Deferral Program eligibility

2nd Offense: Misdemeanor
§ 17C-5-2(l)

  • Jail: 6 months to 1 year (mandatory)
  • Fine: $1,000 to $3,000 (court’s discretion)
  • License revocation: 10 years
  • Safety & Treatment Program required

3rd+ Offense: Felony
§ 17C-5-2(m)

  • Prison: 2 to 5 years (state correctional facility)
  • Fine: $3,000 to $5,000 (court’s discretion)
  • License revocation: Lifetime
  • Safety & Treatment Program required
  • Permanent felony record

A revoked license is not always suspended for the full period. After completing the DMV’s safety and treatment program and paying program and court costs, a driver may have the license reissued after at least 90 days of a six-month revocation, after at least half of a revocation of one year or longer, or after at least 10 years of a lifetime revocation (§ 17C-5A-3(g)). A court may also order home detention as an alternative to any jail term required by § 17C-5-2 (§ 17C-5-2(q)).

DUI Causing Bodily Injury: Misdemeanor § 17C-5-2(d)

When DUI proximately causes bodily injury to another person (defined as substantial physical pain, illness, or any impairment of physical condition):

  • Jail: 1 day to 1 year, including actual confinement of not less than 24 hours
  • Fine: $200 to $1,000
  • License revocation: 2 years (lifetime if previously convicted under § 17C-5-2)

4. Aggravating Factors That Increase Penalties

DUI with a Minor Passenger  § 17C-5-2(k)

Driving while impaired with one or more unemancipated minors under age 16 in the vehicle:

  • Jail: 2 days to 12 months, including actual confinement of not less than 48 hours
  • Fine: $200 to $1,000
  • License revocation: 1 year
  • Also disqualifies defendant from the Deferral Program

DUI Causing Serious Bodily Injury: Felony  § 17C-5-2(c)

“Serious bodily injury” is defined at § 17C-5-2(a)(4) as bodily injury creating a substantial risk of death, serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of any bodily organ or function.

  • Prison: 2 to 10 years in a state correctional facility
  • Fine: $1,000 to $3,000
  • License revocation: 5 years (lifetime if previously convicted under § 17C-5-2)

DUI Causing Death: Felony  § 17C-5-2(b)

In 2026, the Legislature divided DUI causing death into two offenses. The amendments, known as Baylea’s Law, took effect June 12, 2026. For either offense, the death must occur within one year of the offense, and the victim may include an embryo or fetus as defined in § 61-2-30.

With Deliberate Disregard for the Safety of Others: § 17C-5-2(b)(1)

“Deliberate disregard for the safety of others” has the meaning given in § 17C-5-1(d): the driver knows of, or intentionally disregards, facts that create a high probability of injury to others, and deliberately proceeds anyway, either in conscious or intentional disregard of that probability or with indifference to it.

  • Prison: 5 to 30 years in a state correctional facility
  • Fine: $2,000 to $10,000
  • License revocation: life
  • The sentence is mandatory. It cannot be suspended under § 25-4-6, and home incarceration is not available.

Impaired Driving Causing Death: § 17C-5-2(b)(2)

  • Prison: 3 to 15 years in a state correctional facility
  • Fine: $1,000 to $3,000
  • License revocation: 10 years, or a period conditioned on Test and Lock Program participation
  • With a prior conviction under § 17C-5-2: life revocation, or a period conditioned on Test and Lock Program participation

Habitual User of Narcotics or Amphetamines  § 17C-5-2(g)

  • Jail: 1 day to 6 months, including actual confinement of not less than 24 hours
  • Fine: $100 to $500
  • License revocation: 6 months

5. The WV DUI Deferral Program: Dismissal for First Offenders

The most consequential option many first-time defendants never learn about: under W. Va. Code § 17C-5-2b, a qualifying first-time offender can have the charge dismissed and may later apply to have the arrest and court records expunged. The court defers proceedings only after the person pleads to, or is found guilty of, the § 17C-5-2(e) offense, and only with the person’s consent, but no judgment of guilt is entered (§ 17C-5-2b(a)). This proceeding runs entirely through the criminal court.

Critical Deadline: You must notify the court of your intention to participate within 30 days of your arrest (§ 17C-5-2b(a)(1)(C)). The statute makes timely notice a condition of eligibility, so treat this deadline as fixed.

Eligibility Requirements  § 17C-5-2b(a)(1) and (f)

The Deferral Program is available only when all of the following are satisfied:

  1. The charge is for the specific offense defined in § 17C-5-2(e), standard first-offense DUI with BAC under 0.15%. It is not available under § 17C-5-2(b), (c), (d), (f), or (k).
  2. The person has not previously been convicted of any offense under Article 5 of Chapter 17C, or under any statute of any state or the United States relating to DUI of alcohol, controlled substances, or drugs.
  3. The person has not previously had their license revoked for any such offense under a municipal ordinance or statute of this or any other state or the United States.
  4. The person does not hold a commercial driver’s license and was not operating a commercial motor vehicle.
  5. No violation of any other provision of Article 5 of Chapter 17C has been charged in the same prosecution.
  6. A court has not entered an order finding the person refused the secondary chemical test pursuant to § 17C-5-7a.
  7. The person notifies the court within 30 days of arrest of their intention to participate.

What the Program Requires  § 17C-5-2b(a)(2)

If eligible and accepted, the court, without entering a judgment of guilt, defers further proceedings and places the defendant on probation requiring:

  • Participation in the Test and Lock Program (ignition interlock) for a period of at least 165 days after an initial 15-day license suspension
  • The program must be completed within one year
  • Compliance with all conditions of probation set by the court

Dismissal and Expungement  § 17C-5-2b(c) and (g)

Upon successful completion, the defendant moves the court for dismissal supported by their affidavit and DMV certification. The prosecution has 30 days to object. If no objection is filed, charges are dismissed. After a waiting period of at least one year from the expiration of probation, the defendant may apply to expunge the official records of the arrest, trial, and conviction, other than DMV records. The prosecutor may object within 30 days after service of the motion. A person previously convicted of a felony may not seek expungement under this section.

Critical Limitations  § 17C-5-2b(d), (e), and (g)

  • There may be only one discharge and dismissal under this section per person.
  • Expungement clears criminal court records. It does not expunge DMV records of the license suspension.
  • A Deferral Program probation counts as a prior offense if you are later charged with DUI for an offense within 10 years (§ 17C-5-2(n)(3)).

Implied Consent  § 17C-5-4

By driving in West Virginia, every driver is considered to have consented to a preliminary breath test (PBT) at the roadside and to a secondary chemical test of blood or breath (§ 17C-5-4(a)). The roadside PBT result is used only to help the officer decide whether to make an arrest (§ 17C-5-5). The secondary test is given after a lawful arrest, and the license revocation for refusal described below applies to the secondary test (§§ 17C-5-7 and 17C-5-7a).

  • Blood tests require consent or a warrant. Without your written consent, a secondary blood test may not be performed unless a magistrate or circuit judge issues a warrant (§ 17C-5-4(c)).
  • Refusing only a blood test does not trigger revocation. A refusal to submit to a blood test only may not result in revocation of your license (§ 17C-5-4(d)).
  • Your right to your own test. If you first submit to the secondary test, you have the right to have a test of your blood performed (§ 17C-5-4(e)(3) and § 17C-5-9).
West Virginia does not provide a right to consult an attorney before deciding whether to submit to the secondary chemical test. That decision must be made at the time the officer requests it, without the opportunity for legal advice.

How a Refusal Case Works  § 17C-5-7

  • A refusal becomes final 15 minutes after you refuse. During those 15 minutes, the officer must allow you to change your mind and take the test (§ 17C-5-7(b)).
  • Within 48 hours of the refusal, the officer must sign and send a sworn statement about the refusal to the DMV and to the court handling your DUI charge (§ 17C-5-7(c)).

The Refusal Review Hearing  § 17C-5-7a(b) and (c)

At the defendant’s first appearance before the court, the court advises that the license will be revoked unless a refusal review hearing is requested within 30 days of that first appearance. If no hearing is requested in time, the court must enter an order finding that the person refused (§ 17C-5-7a(b)(2)).

At the hearing, the county prosecutor or municipal attorney appears, and the DMV is not a party (§ 17C-5-7a(c)(2) and (h)). The court determines by a preponderance of the evidence whether: (1) the officer had reasonable grounds to believe a DUI occurred; (2) the officer requested the secondary test; (3) the required written and verbal warnings were administered; and (4) the defendant refused. If the court finds that any one of those did not occur, it enters an order finding no refusal, and the DMV may not revoke the license based on the alleged refusal (§ 17C-5-7a(c)(4)).

Consequences of Refusal  § 17C-5-7a(e)

Prior Refusal Revocations License Consequence Alternative
No prior revocation under § 17C-5-7a 1-year revocation 45 days + 1 year Test & Lock Program
One prior revocation under § 17C-5-7a 10-year revocation May be reissued after 5 years per § 17C-5A-3
More than one prior revocation under § 17C-5-7a Lifetime revocation None

A first-offense refusal revocation cannot be shortened by completing the safety and treatment program (§ 17C-5A-3(g)(2)).

A court order finding that you refused also makes you ineligible for the Deferral Program under § 17C-5-2b(f)(4).

Two 30-Day Clocks: Refusal and the Deferral Program

If you are accused of refusing the secondary chemical test, two deadlines run at the same time. You must notify the court within 30 days of your arrest that you intend to participate in the Deferral Program (§ 17C-5-2b(a)(1)(C)). Separately, you have 30 days from your first court appearance to request a refusal review hearing; if you do not, the court must enter an order finding that you refused (§ 17C-5-7a(b)(2)). A court order finding refusal makes you ineligible for the Deferral Program (§ 17C-5-2b(f)(4)). Missing the refusal hearing deadline can cost you both your license and your path to dismissal.

For more information, see our page on Morgantown DUI Defense.

7. The Ignition Interlock Device Requirement

The Test and Lock Program is West Virginia’s ignition interlock program. It is established under W. Va. Code § 17C-5A-3a and administered by the WV DMV. The Code refers to it by several names, including the Motor Vehicle Alcohol and Drug Test and Lock Program (§ 17C-5A-3a) and the Motor Vehicle Alcohol Test and Lock Program (§§ 17C-5-2b and 17C-5-7a). A participant receives a license restricted to operating a vehicle equipped with an approved ignition interlock device (IID) (§ 17C-5A-3a(h)). A driver required to participate because of a prior DUI conviction or revocation within the past 10 years must have a device installed on every vehicle he or she owns or operates (§ 17C-5A-3a(d)). The device requires a clean breath sample before the vehicle will start.

Participation in the Test and Lock Program is an alternative to the standard revocation period for eligible defendants, but participation requires the driver’s consent: an alternative sentence involving the program cannot be imposed without the driver’s agreement per § 17C-5-2(s). The specific periods of participation that replace revocation are set out in § 17C-5-2 for each offense level and § 17C-5A-3a for program administration.

SR-22 Insurance

Before the DMV will reinstate driving privileges or accept enrollment in the Test and Lock Program, the driver must demonstrate proof of financial responsibility, typically through an SR-22 certificate filed by an insurance carrier confirming minimum required coverage. The specific requirements are governed by Chapter 17D of the WV Code.

8. Collateral Consequences of a WV DUI Conviction

Beyond the statutory penalties, a DUI conviction in West Virginia can affect employment, professional licensing, housing, military status, and other areas of life. Because these consequences depend on rules outside the DUI statute itself, anyone facing a DUI charge should discuss their specific occupation and circumstances with their attorney.

Employment and Professional Licensing

A DUI conviction appears on criminal background checks. Many employers, particularly in healthcare, education, government, law, and transportation, conduct background checks and may treat a DUI conviction as a disqualifying factor. Professional licensing boards in West Virginia generally require disclosure of criminal convictions and have authority to take disciplinary action; the specific rules vary by board and profession.

CDL Holders

CDL holders face career consequences described in full in Section 12, among the most severe collateral consequences of any DUI offense.

Immigration

Non-citizens should consult both a DUI defense attorney and an immigration attorney promptly after any arrest. Immigration consequences of criminal convictions are governed by federal law and vary significantly by immigration status and the nature of the conviction.

Firearms: Federal Law

A standard misdemeanor DUI conviction does not affect the right to possess firearms under federal law. A felony DUI conviction (third offense, or DUI causing serious bodily injury or death) results in the loss of the right to possess firearms under 18 U.S.C. § 922(g), a federal statute.

9. DUI Defense Strategies

A DUI charge is not a conviction. There are well-recognized legal and factual defenses to DUI charges in West Virginia. Every case is different, and the viability of any particular defense depends entirely on the specific facts. The following are the principal categories of defense that an experienced Morgantown DUI attorney will investigate and evaluate.

1 Challenging the Legality of the Traffic Stop

The Fourth Amendment to the U.S. Constitution and Article III, Section 6 of the West Virginia Constitution protect against unreasonable searches and seizures. A law enforcement officer must have reasonable articulable suspicion of a traffic violation or criminal activity before stopping a vehicle. If the stop was unlawful, evidence obtained as a result, including breath test results and field sobriety observations, may be subject to suppression. A successful suppression motion can result in dismissal.

The specific facts of what the officer observed are critical. Describe in detail to your attorney everything about your driving and road conditions in the moments before the stop.

2 Challenging Field Sobriety Test Administration and Results

The Standardized Field Sobriety Tests (SFSTs), which are Horizontal Gaze Nystagmus (HGN), Walk and Turn (WAT), and One Leg Stand (OLS), were developed by NHTSA and are used to assess potential impairment. Performance can be affected by many factors unrelated to alcohol consumption, including:

  • Medical conditions affecting balance or gaze
  • Surface conditions and lighting at the test location
  • Weather, footwear, and fatigue
  • Failure by the officer to follow prescribed administration protocols

An experienced DUI defense attorney will examine the officer’s certification, the conditions under which the tests were administered, and compliance with required procedures. The governing standard is the NHTSA SFST Participant Manual.

3 Challenging the Breath Test: Intoximeter EC/IR II

West Virginia uses the Intoximeter EC/IR II as its standard evidential breathalyzer. Like any scientific instrument, it requires proper calibration, maintenance, and administration to produce valid results. Areas of investigation include:

  • Calibration records: deficiencies bear on the reliability of the result
  • Maintenance and repair history: a documented pattern of malfunction is relevant to reliability
  • Operator certification: the administering officer must hold valid certification
  • Approved methods: to carry its statutory presumptions, a breath or blood analysis must be performed under methods and standards approved by the West Virginia State Police Forensic Laboratory (§ 17C-5-8(e))
  • Timing: for the result to be admissible, a sample for alcohol must be taken within two hours of arrest (§ 17C-5-8(g))
  • Radio frequency interference protocols: required steps must be followed during testing
  • Mouth alcohol: circumstances that could produce residual oral alcohol can affect results

Certain medical conditions are recognized in DUI defense practice as potentially affecting breath test readings. Whether any such condition applies requires investigation of the specific facts and, where appropriate, expert analysis.

4 Challenging a Blood Test: Chain of Custody

In drug DUI cases and cases where blood is drawn, the sample’s integrity from collection through laboratory analysis must be documented. Areas of challenge include collection procedures, vial composition, chain of custody documentation, and laboratory procedures. A blood sample for drug testing must be taken within four hours of arrest to be admissible (§ 17C-5-8(g)), and the analysis must be done by an accredited laboratory or the West Virginia State Police Forensic Laboratory (§ 17C-5-8(e)(2)). You may also, at your own expense, have a qualified person of your choosing administer an additional test, and on request you are entitled to full information about the test taken at the officer’s direction (§ 17C-5-6).

5 Constitutional and Procedural Violations

Officers must follow established legal procedures throughout the stop, arrest, and testing process. Your attorney will review the complete sequence for constitutional and procedural compliance, including Fifth Amendment rights, lawfulness of any vehicle search, and whether required implied consent warnings were properly administered.

6 Other Applicable Defenses

Depending on the specific facts, additional defenses may apply, including challenging whether the prosecution can prove beyond a reasonable doubt that you were the person operating the vehicle, or affirmative defenses such as necessity in narrowly defined circumstances. Every case requires individual evaluation by a qualified DUI defense attorney.

10. Drug DUI and the Drug Recognition Expert

When officers suspect drug-related impairment, they may summon a Drug Recognition Expert (DRE), an officer trained in a standardized evaluation protocol developed by NHTSA. The DRE ultimately offers an expert opinion that the subject is impaired by a specific category of drug.

The DRE’s opinion is subject to challenge on multiple grounds: adherence to required procedures, independence of observed signs from other causes, and whether toxicological results actually confirm the presence and likely impairment effect of the identified substance.

For cannabis specifically, W. Va. Code § 17C-5-2 sets no per se concentration limit for cannabis or other drugs; the State must prove the driver was under the influence, not merely that a substance was present in the body. The gap between detectability and impairment is a recognized area of challenge in drug DUI cases.

For more information, visit our West Virginia Drug Offenses page.

11. Underage DUI in West Virginia

West Virginia applies a zero-tolerance standard to drivers under 21. Under § 17C-5-2(j), a person under 21 who drives with a BAC of 0.02% or more but less than 0.08% is subject to:

First Offense (BAC 0.02% to under 0.08%)

  • Fine: $25 to $100
  • License suspension: 60 days, or a period conditioned on Test and Lock Program participation
  • A first-offense defendant may move for a continuance to participate in the Test and Lock Program; upon successful completion, the court dismisses the charge and expunges the record

Second or Subsequent Offense (BAC 0.02% to under 0.08%)

  • Jail: 24 hours
  • Fine: $100 to $500
  • License revocation: 1 year or until the person’s 21st birthday, whichever is longer
If an underage driver’s BAC is 0.08% or higher, the full adult DUI penalties under § 17C-5-2(e) or (f) apply, not the reduced underage provisions. A single prosecution cannot charge both the underage and standard DUI offense arising from the same transaction under § 17C-5-2(j)(3).

12. CDL Holders and Commercial Driver DUI

If you hold a commercial driver’s license and are arrested for DUI in West Virginia, the career consequences can be permanently life-altering, regardless of whether the offense occurred in a commercial or personal vehicle.

The Lower BAC Standard  § 17E-1-14(a)

A CDL holder operating a CMV is subject to a BAC limit of 0.04%, half the standard limit. A CDL holder can be charged at a BAC level that would not trigger a standard DUI charge. See also the FMCSA Commercial Driver’s License standards for federal CDL requirements.

CDL Disqualification Penalties  § 17E-1-13(b)(1)

These are in addition to any criminal penalties and standard license revocation:

Offense Vehicle Type CDL Consequence
First conviction or first refusal CMV 1-year disqualification  § 17E-1-13(b)(1)(A)
First conviction or first refusal Non-commercial vehicle 1-year disqualification  § 17E-1-13(b)(1)(B)
First conviction: hazmat placard load CMV 3-year disqualification  § 17E-1-13(b)(1)(C)
Second conviction or second refusal (separate incident) CMV Lifetime disqualification  § 17E-1-13(b)(1)(D)
Second conviction or second refusal (separate incident) Non-commercial vehicle Lifetime disqualification  § 17E-1-13(b)(1)(E)
The off-duty personal vehicle rule: Under § 17E-1-13(b)(1)(1), a conviction resulting from a separate incident includes convictions for offenses committed in a non-commercial motor vehicle. A CDL holder convicted of DUI while driving their personal car, even while completely off-duty, faces the same 1-year CDL disqualification. A second such conviction results in lifetime disqualification.

Lifetime Disqualification: Reinstatement Eligibility  § 17E-1-13(a)(2)

A person disqualified for life for offenses described in § 17E-1-13(b)(1) through (4) and (6) is eligible to apply for reinstatement after 10 years and after completing the Safety and Treatment Program. However, any person whose lifetime disqualification is subsequently reinstated and who is again convicted of a disqualifying offense is not eligible for reinstatement; the second lifetime disqualification is permanent.

CDL holders are expressly excluded from the Deferral Program by § 17C-5-2b(f)(2). For CDL holders, there is no diversion path. The only acceptable outcome is a non-DUI disposition, which requires an aggressive defense from the moment of arrest.

CDL or Commercial Driver Facing DUI Charges?

Your career may depend on the outcome. Contact us immediately for a free consultation.

Call (304) 212-5791

13. DUI Causing Injury or Death: Felony DUI in West Virginia

DUI Causing Serious Bodily Injury: Felony  § 17C-5-2(c)

  • Prison: 2 to 10 years
  • Fine: $1,000 to $3,000
  • License revocation: 5 years (lifetime if previously convicted under § 17C-5-2)

DUI Causing Death: Felony (Baylea’s Law)  § 17C-5-2(b)

Effective June 12, 2026, DUI causing death is two separate felonies. For either one, the death must occur within one year of the offense.

With Deliberate Disregard for the Safety of Others: § 17C-5-2(b)(1)

  • Prison: 5 to 30 years
  • Fine: $2,000 to $10,000
  • License revocation: life
  • Mandatory sentence: not eligible for suspension under § 25-4-6 or for home incarceration

Impaired Driving Causing Death: § 17C-5-2(b)(2)

  • Prison: 3 to 15 years
  • Fine: $1,000 to $3,000
  • License revocation: 10 years, or a period conditioned on Test and Lock Program participation (life, or Test and Lock, if previously convicted under § 17C-5-2)

Felony DUI cases require every available defense plus specialized investigation, including independent accident reconstruction, independent toxicological review, and careful examination of causation. The potential of years in a state correctional facility makes experienced, trial-ready criminal defense counsel indispensable.

14. What to Do Immediately After a WV DUI Arrest

Invoke Your Right to Remain Silent

The Fifth Amendment to the U.S. Constitution and Article III, Section 5 of the West Virginia Constitution protect you against compelled self-incrimination. Tell the officer clearly that you are invoking your right to remain silent. Do not explain where you were, what you drank, or how much. Every statement made at the scene will be recorded in the police report.

Do Not Physically Resist

Whatever your assessment of the stop, do not physically resist. Compliance removes the basis for additional charges. If the stop or arrest was unlawful, the remedy is a motion to suppress in court.

Understand You Have No Right to Counsel Before Chemical Testing

West Virginia does not provide a right to consult an attorney before deciding whether to submit to the secondary chemical test. That decision must be made at the time the officer requests it. Understanding the law before you are in that situation is the only preparation available.

Document Everything You Can Remember

As soon as you have an opportunity, write down: the exact location, time, lighting, and road conditions; the stated reason for the stop; whether the officer demonstrated field sobriety tests before asking you to perform them; the surface and conditions at the test location; any physical condition that could affect test performance; and whether the officer remained in your line of sight before the breath test. These specifics form the foundation of your defense.

Note the Refusal Review Hearing Deadline

If you are accused of refusing the secondary chemical test, the refusal review hearing must be requested within 30 days of your first court appearance under § 17C-5-7a(b)(1). If it is not, the court will enter an order finding refusal, which also ends Deferral Program eligibility. Contact an attorney before that deadline.

Retain an Attorney Promptly

The 30-day Deferral Program notification window runs from the date of arrest. Early retention of counsel ensures that window does not close before the strategic decision about the Deferral Program is made, and gives your attorney the earliest opportunity to investigate evidence. Contact Slavey & Shumaker PLLC today.

15. How to Choose the Right Morgantown DUI Attorney

A DUI charge in West Virginia deserves representation from an attorney with specific DUI defense experience, familiarity with local courts, and the honesty to tell you what the evidence actually shows.

  • WV-specific DUI experience. The Deferral Program, the refusal review hearing process, and the single-track system are specific to West Virginia. General criminal defense experience is not a substitute.
  • Trial readiness. Prosecutors offer better outcomes to attorneys who demonstrably go to trial. Ask about trial experience in WV DUI cases.
  • Familiarity with local courts. An attorney who regularly appears in Monongalia County courts has practical advantages in both negotiation and litigation.
  • Honest evaluation. A credible attorney will tell you the strengths and weaknesses of your case and give realistic expectations.
  • Prompt communication. Hard deadlines (30 days from arrest for the Deferral Program, 30 days from first appearance for the refusal review hearing) require an attorney who is responsive from day one.

Slavey & Shumaker PLLC defends DUI cases throughout Morgantown and Monongalia County with extensive courtroom experience and a 4.8-star client rating across more than 100 Google reviews. As a criminal defense law firm, we offer extensive DUI defense and courtroom experience. Contact us for a free, confidential initial consultation.

16. Frequently Asked Questions

Will I go to jail for a first DUI in West Virginia?
For a standard first offense under § 17C-5-2(e) (BAC under 0.15%), there is no mandatory minimum jail sentence; the maximum is six months. For an aggravated first offense under § 17C-5-2(f) (BAC 0.15% or higher), a mandatory minimum of 2 days applies, including at least 24 hours of actual confinement. The specific outcome depends on the facts of your case and the quality of your representation.
Will my license be revoked just because I was arrested for DUI in West Virginia?
No. Since the SB 130 amendments took effect July 1, 2020, arrest alone does not trigger license revocation. The DMV revokes or suspends a license only after the court acts: a conviction, entry into the Deferral Program, or a court order finding refusal under § 17C-5-7a (§ 17C-5A-1a). If your case is dismissed or you are acquitted, your license is not revoked on the DUI charge. If you are accused of refusing the test, request a refusal review hearing within 30 days of your first court appearance.
What is the WV DUI Deferral Program and who qualifies?
The Deferral Program under § 17C-5-2b is for first-time defendants charged under § 17C-5-2(e) who have no prior DUI conviction or related license revocation, do not hold a CDL, have no other Article 5 offense charged in the same case, and have no court order finding a test refusal. After pleading to, or being found guilty of, the § 17C-5-2(e) offense, the defendant serves a 15-day license suspension followed by at least 165 days in the Test and Lock Program. On successful completion, the charge is dismissed, and the defendant may later apply to expunge the court records. Court notification must be made within 30 days of arrest. A person may receive only one dismissal under this program.
Is there still a separate DMV hearing for DUI in West Virginia?
No. Senate Bill 130 ended the separate DMV administrative hearing process for offenses occurring on or after July 1, 2020, and the Office of Administrative Hearings terminated no later than July 1, 2021. All license consequences now flow from the criminal court. The only license-specific hearing that remains is the refusal review hearing under § 17C-5-7a. It is held in the same court that hears your DUI charge, the prosecutor or municipal attorney appears, and the DMV is not a party.
What are the consequences of refusing a breath test in West Virginia?
The officer reports the refusal to the court handling your DUI charge and to the DMV. At your first court appearance, you will be advised that your license will be revoked unless you request a refusal review hearing within 30 days of that first appearance; if you do not, the court must enter an order finding that you refused (§ 17C-5-7a). A first refusal carries a 1-year license revocation (or 45 days plus 1 year of Test and Lock participation). A court order finding refusal also makes you ineligible for the Deferral Program.
What are the penalties for a third DUI conviction in West Virginia?
A third conviction under § 17C-5-2(m) is a felony. The sentence is 2 to 5 years in a state correctional facility. The court may, in its discretion, impose a fine of $3,000 to $5,000. License revocation is lifetime, with a Test and Lock alternative available under § 17C-5A-3a.
What happens to a CDL if convicted of DUI in West Virginia?
Under § 17E-1-13(b)(1)(B), a first DUI conviction in a non-commercial vehicle disqualifies a CDL holder from operating a commercial motor vehicle for one year. A second such conviction results in lifetime disqualification under § 17E-1-13(b)(1)(E). CDL holders are expressly excluded from the Deferral Program by § 17C-5-2b(f)(2).
Can I refuse field sobriety tests in West Virginia?
Field sobriety tests are not required by the implied consent statute, which applies to the secondary chemical test. You may decline to perform them. Whether declining is advisable in your specific situation is a question for your attorney based on the full circumstances of your case.
Can a WV DUI be expunged from my record?
A DUI conviction cannot be expunged under West Virginia’s conviction-expungement statute, which excludes DUI offenses (§ 61-11-26(c)(7)). There are three narrower paths. Deferral Program: after dismissal under § 17C-5-2b, you may apply once at least one year has passed since probation ended to expunge the arrest and court records, other than DMV records; this is not available to a person previously convicted of a felony. Drivers under 21: a first offense under § 17C-5-2(j) can be continued while the driver completes the Test and Lock Program, after which the court dismisses the charge and expunges the record. Dismissal or acquittal: if you are found not guilty, or the charge is dismissed other than in exchange for a guilty plea to another offense resulting in a conviction, you may petition for expungement no sooner than 60 days after the acquittal or dismissal (§ 61-11-25); this is also not available to a person previously convicted of a felony. See also our West Virginia Criminal Record Expungement page.
Our Attorneys
J. Brandon Shumaker
Managing Attorney, Criminal Defense & Personal Injury
View Profile →
J. Tyler Slavey
Managing Attorney, Personal Injury
View Profile →
Scott B. Harris
Associate Attorney
View Profile →
Kasey Libby
Associate Attorney
View Profile →
Criminal Defense Practice Areas
DUI Defense Drug Offenses Theft Crimes Domestic Offenses Record Expungement Bail & Bond in WV WV Criminal Trial Process
Personal Injury Practice Areas
Personal Injury Overview Car Accidents Truck Accidents Motorcycle Accidents Wrongful Death Drunk Driving Injury

Charged with DUI in Morgantown or North Central WV?

Call us now. The 30-day Deferral Program window begins at arrest. Don’t wait.

Free Consultation

This guide is provided for general informational purposes only and does not constitute legal advice. Reading this guide does not create an attorney-client relationship. West Virginia laws are subject to change; readers should verify current statutory provisions. Every case is different. Contact Slavey & Shumaker PLLC for a free consultation about your specific circumstances. Attorney advertising. Prior results do not guarantee a similar outcome.