Second and Third Offense DUI in West Virginia

By J. Brandon Shumaker and J. Tyler Slavey  ·  Slavey & Shumaker PLLC  ·  Morgantown, WV  ·  Last updated November 11, 2026

A second or third DUI charge raises the stakes on everything: mandatory jail or prison, a license revocation measured in years or for life, and a conviction that cannot be expunged. The prosecution has to prove more than the current arrest, though. It also has to prove that the prior offense qualifies, and that is often where a repeat DUI case is won or narrowed.

This page focuses on what makes a DUI a second or third offense. For the full range of DUI penalties, the Deferral Program and test refusal, see our DUI defense guide. Slavey & Shumaker PLLC defends DUI charges in Monongalia, Preston, Marion and Harrison Counties.

1. What Counts as a Prior Offense

For second and third offense purposes, the following count as prior offenses and convictions (W. Va. Code § 17C-5-2(n)):

• A conviction under the West Virginia DUI statute, or a prior version of it, for an offense within the 10-year period immediately preceding the date of arrest in the current case (§ 17C-5-2(n)(1))
• A conviction under a municipal ordinance of this or any other state, or a statute of the United States or any other state, for an offense with the same elements as a West Virginia DUI offense, within the same 10-year period (§ 17C-5-2(n)(2))
• A DUI Deferral Program probation under § 17C-5-2b for a first offense within the same 10-year period, even though the case was dismissed (§ 17C-5-2(n)(3))
• A conviction for fleeing an officer in a vehicle while under the influence under § 61-5-17(j), within the 15-year period immediately preceding the current arrest (§ 17C-5-2(n)(4))

The Deferral Program point surprises many people. A first offense that was dismissed after the program still counts as a prior if you are charged with DUI again within 10 years.

2. The 10-Year Look-Back

The look-back is measured from the date the prior offense occurred to the date of arrest in the current case (§ 17C-5-2(n)). It is not measured from the date of the prior conviction or sentence. A prior offense that occurred more than 10 years before the new arrest does not count toward a second or third offense under these subsections.

Because the dates matter so much, we confirm every claimed prior and check the offense date, the court, the statute and the outcome.

3. How a Repeat Offense Is Charged

A person may be charged with a second or subsequent offense even if the earlier charge has not been finally decided. When that happens, the warrant, indictment or information must set forth the date, location and particulars of the previous offense. But no one may be convicted of a second or subsequent offense unless the conviction for the previous offense has become final, or the person previously had a Deferral Program probation (W. Va. Code § 17C-5-2(o)).

A second offense is a misdemeanor and is usually handled in magistrate court; see our magistrate court guide. A third offense is a felony prosecuted in circuit court, usually after a preliminary hearing or grand jury indictment; see our criminal trial process guide.

4. Second Offense Penalties

If the second offense also involved bodily injury, serious bodily injury or death, and that offense carries a greater jail term, revocation or fine, the greater penalty applies (§ 17C-5-2(l)).

DUI sentences are mandatory and are not subject to suspension or probation, but a court may order home detention as an alternative to jail. For a second offense, home detention must include electronic monitoring for at least five days, during which the person may not leave home (§ 17C-5-2(q)).

5. Third Offense: A Felony

As with a second offense, a greater penalty applies if the offense involved injury or death and that offense carries a greater sentence (§ 17C-5-2(m)). If the court orders home detention as an alternative to incarceration, electronic monitoring is required for at least 10 days, during which the person may not leave home (§ 17C-5-2(q)).

A lifetime revocation is not always permanent. The license may not be reissued until at least 10 years of the revocation have actually been in effect, the person has completed the safety and treatment program, and all program and court costs have been paid (§ 17C-5A-3(g)(3)). A felony conviction also carries other consequences, including firearm restrictions.

6. Mandatory Test and Lock

The Test and Lock Program is West Virginia’s ignition interlock program. For a repeat offender, it is mandatory. A person convicted of DUI, or whose license is revoked for refusing a secondary chemical test, who was previously convicted or revoked within the past 10 years, must participate. The minimum revocation period is one year and the minimum period with the interlock device is two years (W. Va. Code § 17C-5A-3a(d)).

The required device period grows with the circumstances. The Division of Motor Vehicles adds one year for each additional previous conviction or revocation within the past 10 years, two months if the offense was committed while a minor was in the vehicle, six months if a person other than the driver was injured, and two years if those injuries resulted in a death. A person required to participate must have an ignition interlock device installed on every vehicle he or she owns or operates (§ 17C-5A-3a(d)).

Driving a vehicle without an approved device while in the program is a misdemeanor punishable by one to six months in jail and a fine of $100 to $500, and attempting to bypass the device is a separate misdemeanor (§ 17C-5A-3a(k)). See our DUI license revocation page for how revocation and reinstatement work.

7. Driving on a DUI Revocation

Driving while your license is revoked for DUI or for refusing a secondary chemical test is its own offense, with penalties that also climb with each conviction (W. Va. Code § 17B-4-3(b)):

Each conviction also extends the revocation by six months (§ 17B-4-3(c)), and a court may order home detention as an alternative to incarceration (§ 17B-4-3(e)). Driving while suspended or revoked under § 17B-4-3 is also one of the offenses excluded from conviction expungement (§ 61-11-26(c)(8)).

8. Your Record

DUI convictions cannot be expunged under West Virginia’s conviction expungement statute (W. Va. Code § 61-11-26(c)(7)). A second or third DUI conviction will stay on your record. A person who already had a prior DUI conviction or a prior revocation for a similar offense is also not eligible for the DUI Deferral Program; see our DUI defense guide.

9. Defending a Repeat DUI Charge

A repeat DUI case has two parts: the current arrest and the claimed prior. We examine both.

• Is the prior within the look-back? We compare the date the prior offense occurred with the date of the current arrest.
• Does an out-of-state or municipal prior have the same elements? A conviction from another jurisdiction counts only if the offense has the same elements as a West Virginia DUI offense (§ 17C-5-2(n)(2)).
• Is the prior final? No one may be convicted of a second or subsequent offense unless the prior conviction is final or the person had a Deferral Program probation (§ 17C-5-2(o)).
• Does the charging document set out the prior? The warrant, indictment or information must set forth the date, location and particulars of the previous offense (§ 17C-5-2(o)).
• Can the current arrest be challenged? The traffic stop, field sobriety tests, breath or blood testing and the implied consent process all matter. See our DUI defense guide.

Our attorneys, J. Tyler Slavey, J. Brandon Shumaker, Scott B. Harris and Kasey Libby, defend DUI charges in Monongalia, Preston, Marion and Harrison Counties. No lawyer can guarantee a result.

10. Frequently Asked Questions About Repeat DUI Charges

This page is provided for general informational purposes about West Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee a similar outcome.