West Virginia Drunk Driving Defense Attorneys
- Barboursville
- Jarrell, Stephen:
When you've been arrested for driving while under the influence of alcohol you really do need help. In West Virginia DUI charges have serious consequences. If you are found guility, you can lose your license, be fined, your insurance can go up or be cancelled, and it carries jail time.
Most people arrested for DUI have never been in any other type of criminal trouble and are confused, frustrated, and anxious about the entire process.
- Beckley-Kyle Lusk: Criminal
charges will often vary, depending on the type of crime. Certain
offenses will fall within the jurisdiction of the Federal courts, while
other charges may be filed in state courts. The two classifications for
criminal prosecution are misdemeanor and felony. If convicted of a
felony, the sentence can range from months to years in state prison or,
in some cases, even the death penalty. In misdemeanor cases, the
sentence is often monetary fines, community service and/or
incarceration in county jail for up to one year. Violent crimes such as
murder, rape, robbery or kidnapping may result in severe sentences.
Lesser criminal charges such as assault and battery, domestic violence
or theft may be brought as either felonies or misdemeanors, depending
on several factors. If you have been arrested for any criminal offense,
contact an attorney competent in the area of criminal defense
immediately to protect your rights.
- Charleston
- Carrico Law Office:
* Personal Injury
* Car & Truck Accidents
* Serious Bodily Injury
* Work-Related Injury
* Mining Injury
* Logging Accidents
* Medical Malpractice
* Divorce & Family Law
* State and Federal Criminal Defense
- Claude Smith:
Being charged with driving under the influence of alcohol (DUI)
(sometimes referred to as driving while intoxicated - DWI) is a serious
criminal offense in West Virginia. If you are charged with a DUI, you
have two things to worry about, the criminal DUI charges and the
administrative hearing before the West Virginia Department of Motor
Vehicles (DMV) on taking away your driving privileges (losing your
driverÕs license).
- Wolfingbarger: The law surrounding these offenses
is very specialized and, if you have been charged with DUI or driving
on a suspended or revoked license, it is imperative that you act
promptly to protect your rights, as your failure to comply with certain
time deadlines can preclude you from raising important defenses at your
criminal trial or your Division of Motor Vehicles (DMV) administrative
hearing.
- Carter Zerbe:
Appearances can be deceiving. People can do poorly on field sobriety tests,
and even fail the breath test, and not be intoxicated.
- Brickley & Jacobs: In today's society, a vehicle is a
necessity. Our goal is to protect your right to own and operate a
vehicle. There are many things that you need to do before appearing in
front of a judge. Some of which require immediate action in order to
preserve your rights.
- Giatras, Troy:
DUI Laws in Every State and the Consequences of DUI Conviction
Every state makes it a crime for a driver to operate a vehicle (car, motorcycle or commercial vehicle) while under the influence of alcohol or drugs. Commonly called driving under the influence (DUI), this offense may also be called driving while intoxicated (DWI), operating under the influence (OUI) or operating a motor vehicle intoxicated (OMVI).
There are two situations when a driver can be arrested and convicted for DUI:
1. When the driver is unable to operate a vehicle safely as a result of being impaired by alcohol, illegal drugs, prescription medications (e.g., painkillers) or over-the-counter medications (e.g., antihistamines); or
2. When the driver is operating a vehicle above the state's set blood-alcohol concentration (BAC) standards.
A driver's first DUI conviction is normally charged as a misdemeanor, but may increase to a felony in some states if someone was injured or if it is a repeat offense. For example, DUI may be charged as a felony in California if the accused has three or more prior DUI convictions.
Field Sobriety Tests
Police officers conduct "field sobriety" tests on drivers when they make vehicle stops and suspect that a driver may be intoxicated. Designed to help officers determine whether a driver is intoxicated based on the officer's assessment of the driver's physical or cognitive ability, these on-site tests typically include the following physical agility exercises:
* Horizontal Gaze Nystagmus (HGN) Ð driver must follow officer's penlight with his eyes
* Walk and Turn Ð requires driver to walk a certain distance and turn around heel-to-toe
* Standing on One Leg Ð requires driver to raise one leg while counting aloud
* Finger to Nose Ð driver must bring the index finger to the nose with eyes closed
* Rhomberg Balance Test Ð driver must stand still with his head tilted back
Chemical Tests and Implied Consent Laws
All states have "implied consent" laws that require drivers suspected of DUI to submit to some form of chemical test (breath, blood or urine) to measure BAC. Implied consent laws are based on the logic that all drivers give consent to DUI testing by driving on state roads and highways.
In fact, the U.S. Supreme Court has held that an officer may force a driver to submit to a blood test (without the driver's consent or a warrant) as long as the officer has probable cause to believe the driver is under the influence. While some states allow drivers to choose the form of chemical test, refusing to submit to a chemical test can carry serious penalties (e.g., mandatory license suspension). In fact, refusal to take a chemical test in California will result in a one-year license suspension for the first offense. Further, if a driver is ultimately convicted for DUI, his refusal to submit to a chemical test may enhance the penalties.
"Per Se Intoxication"
If a driver's BAC is at or above a set limit in a state, he will be deemed "per se intoxicated" and no additional proof of impairment is needed to convict him of DUI. "Per se" BAC levels range from .08% in most states to .10% in others. However, a driver can still be arrested and convicted for DUI without a determination of "per se intoxication," if the driver shows other evidence of impaired driving. The National Highway Traffic Safety Administration (NHTSA) has published 20 signs to assist officers in detecting drunk drivers, including wide turning radius, weaving, speed more than 10 miles below the legal limit, following too closely and braking erratically.
Enhanced Penalty BAC Level and Zero Tolerance Laws
Many states have "enhanced penalty BAC level" laws that impose harsher penalties for drivers with BAC levels at or above the state's enhanced penalty standards. These laws typically apply to drivers with a particularly high BAC, ranging from .15% to .20%. In addition, all states have "zero tolerance" laws that penalize drivers under age 21 for driving with any trace of alcohol in their systems.
Criminal and Driving Privilege Penalties
The criminal penalties for a DUI conviction are discretionary, but may include fines, jail time, probation and community service. The severity of the penalty depends on many aggravating factors, such as:
* The driver's history of DUI violations
* Whether there was a child in the vehicle
* Whether the DUI violation involved a car accident that resulted in property damage or injury/death to another person
DUI arrest or conviction also affects driving privileges, including suspension of one's driver's license (usually by DMV), confiscation or impoundment of the driver's car, administrative costs and mandatory alcohol education and treatment programs. Many states require offending drivers to pay a reissue fee to get a suspended license back. In addition, some states require drivers convicted of DUI to install an "ignition interlock" device on their vehicles, which measures the driver's BAC (based on breath) and prevents operation of the car if more than a minimum amount of alcohol is detected.
- Clarksburg-Todd LaNeve:
If you just decide to plead out, you are probably doing yourself a serious
disservice.
Frequently Asked Questions in West Virginia DUI Cases
These questions are designed to answer some typical questions that arise following a DUI arrest. The answers are not intended to serve as full and complete legal advice, nor should they be used as a substitute for a legal analysis of your particular situation. You can contact La Neve Law Offices to arrange a free consultation by calling, toll free, (866)MY-WV-DUI.
Q. Can I still drive after being arrested for a DUI?
A. You are lawfully permitted to drive for a limited period of time after a DUI arrest. If you file the appropriate paperwork with the Division of Motor Vehicles in a timely manner, you may continue to drive until the Commissioner of the DMV issues a Final Order in which your driving privilege is suspended. The law does provide for an administrative suspension which can take place at the time of arrest if you refuse to submit to the secondary breath test which will be offered at the police station, court house, or other booking facility.
Q. What is the legal blood alcohol limit (BAC) in West Virginia?
A. As of December 15, 2003, West Virginia has a BAC threshold of ten hundredths of one percent (0.1) by weight, meaning it is unlawful to drive a motor vehicle if your BAC is 0.1 or greater. Most states have now adopted a BAC threshold of .08. It is anticipated that West Virginia's lawmakers will join the rest of the nation within the next couple of years and reduce the lawful BAC to .08.
It is very important to note that the law in West Virginia also makes it a crime to drive a motor vehicle in this state if you are under the influence of alcohol or drugs. A police officer may find that you are under the influence of alcohol or drugs if you fail his or her field sobriety tests even if your BAC is less than 0.1.
Q. Do I have to go to jail if I am convicted of a DUI?
A. West Virginia's laws generally require that anyone convicted of a DUI offense spend some amount of time in jail. See this website's pages regarding the various offenses and their punishments.
Q. Would I be better off to just plead guilty and get it over with?
A. Every case must be evaluated individually to determine the best way to handle the charge. However, there are very few cases that are open and shut in favor of the state. Very often, an experienced DUI lawyer can find mistakes made by the police or prosecution which invalidate the arrest. Criminal charges can end up being dismissed as a result of some of these mistakes, or the charges or punishments can be reduced. The only guarantee is that if you choose to plead guilty without the advice of an experienced DUI lawyer, you will go to jail and you will lose your driving privileges. Another important reason to fight your DUI is that the punishment gets more severe if you are ever charged and convicted of DUI again. Generally, in every state, the punishment gets worse with subsequent convictions, so it is important to give yourself every opportunity to keep the charge off your record.
Q. How can I avoid a DUI charge?
A. The only guaranteed way to avoid being charged or convicted of DUI is to NEVER get behind the wheel of a motor vehicle after drinking. Even one or two "harmless" drinks while out to dinner or at a party can lead to a DUI arrest. DUI is an area of law that is highly subjective and an officer may believe you are at least under the influence even if you only had one or two drinks regardless of whether or not you truly are. If an officer smells the odor of an alcoholic beverage, or if you admit to drinking even one drink, you will be subjected to field tests which are very easily failed. The number one "trick" for avoiding a DUI is to not drink and drive.
Q. Do I have to take the police officer's tests?
A. The tests that an officer may try to give you at the scene of the traffic stop are 100% voluntary. This includes the physical agility tests (standing on one leg, walking heel to toe on a straight line), a test of your eyes, and a handheld breath test. You do not have to take any of these tests and you cannot be punished for refusing them. However, even if you exercise your right to refuse these tests, you may still be arrested based on other factors such as your driving, the odor of an alcoholic beverage, or your physical appearance or speech patterns.
Q. What about the breath test at the police station or other booking facility?
A. West Virginia, like most states, allows the police to request that you submit to what is called a secondary chemical test of your breath, blood, or urine to determine the concentration of alcohol in your blood. Most police agencies, though not necessarily all, choose to make this secondary test a breath test. Even if you chose to blow into the handheld breath machine at the scene of the traffic stop, you must still take the secondary breath (or blood or urine) test. If you refuse this secondary test, there is a very real risk that your driving privilege will be suspended for at least one year and up to life. Unlike some states, there is no criminal penalty for refusing a secondary test in West Virginia, only an administrative penalty involving suspension of your driving privileges.
Q. Are the secondary breath testing machines accurate?
A. Many factors can affect the results of the secondary breath test. West Virginia uses the Intoxilyzer 5000 CD/FG5 breath test machine produced by CMI, Inc. These machines are actually older technology. CMI and other companies have produced new machines that supposedly use newer, more accurate technology to measure alcohol in a person's blood. However, West Virginia has not employed any of those newer machines yet.
The test results on the Intoxilyzer 5000 series of machines can be affected by things such as temperature, emissions from police two-way radios, and the presence of food or other foreign materials in the test subject's mouth, among numerous other issues. If the machine is not properly maintained, it will also give inaccurate readings. The best way to challenge the results is to hire an experienced DUI attorney.
Q. Are the field tests accurate?
A. The standardized field sobriety tests used by most West Virginia police agencies were developed by the National Highway Traffic Safety Administration (NHTSA) as a way to give officers in the field a method for determining impairment at BACs of 0.1 or greater. Individually, these three standardized tests are not very reliable. The Horizontal Gaze Nystagmus test, used to check a DUI suspect's eyes, has a reliability of 77%. The Walk and Turn test (9 steps on a straight line, turn and come back) only provides an accurate result only 68% of the time, while the One Leg Stand test is only accurate 65% of the time. When these tests are combined, they can provide accuracy as high as 95%, but only if done properly and under the conditions that NHTSA says must be present.
Q. What's this I've heard about there being two separate hearings when someone is arrested for DUI?
A. Following a DUI arrest, you will face both criminal charges and civil administrative proceedings. The criminal court process deals only with jail or prison time and fines. Generally, criminal court does not have any impact on your driving privilege. However, you must also deal with administrative license suspension proceedings before the DMV. This part of your case deals only with whether or not your driving privilege is suspended for any length of time. It does not result in jail or fines being imposed.
Q. Can I get a "work permit" to drive to and from work if my license is suspended?
A. No. West Virginia, unlike some other states, does not currently allow a "work permit" or other type of special license for drivers whose privileges have been suspended. The closest thing to a special permit is the Ignition Interlock Program (commonly called the "blow and go"), which allows a suspended driver to again begin driving, but only after a minimum suspension period is first served.
Q. How can I get out of a DUI charge?
A. Defending against a DUI is an extremely complicated matter and should only be done with the assistance of an experienced DUI lawyer. There are many areas of attack that can be used to fight a DUI, but it takes a trained attorney to identify those areas and use them to your advantage. There are typically no guarantees in the criminal law system. That is why your selection of an attorney to defend you is one of the most important decisions you will face. Beware of attorneys who say they handle DUI defense but who do not have significant experience. Even outstanding general criminal defense lawyers are not necessarily able to fully appreciate and investigate a DUI. It takes experience and special training for your attorney to have the maximum impact in a DUI case.
Q. Can I still work after being arrested?
A. People often wonder if an arrest will affect their employment. The straightforward answer is that some employers will take a very dim view of a DUI arrest, even if the case hasn't yet been argued in court. However, that decision is up to the individual employer. From a legal standpoint, there is usually nothing about a DUI arrest that prevents you from carrying out your normal daily activities except for conditions of any bond you may have posted. Frequently, out of state travel will be limited by the court unless permission is first granted by the court. This is an important point that many people are not aware of and is yet another reason that hiring an experienced lawyer is important.
Q. Can I still own firearms if I'm convicted of a DUI?
A. As the law now stands, yes. However, if your DUI is a felony level offense and you are convicted, federal law prohibits you from owning any type of firearm.
- Clarksburg-David Frame:
the two most beautiful words in the English language are the words "Not Guilty."
- Clarksville-Aldred Law Office:
The cost of legal representation is a necessity to exercise your legal
rights in our society. It is much like paying your electric or water
bill.
- Elkins-Jory & Smith:
In addition to the possible incarceration and fines, there can be a
stigma attached to being convicted of a crime. For example, upon
conviction of a felony, an individual may lose many of his or her
rights, including the right to vote and the right to own a gun. Even a
conviction for a traffic offense, especially an alcohol related traffic
offense, can lead to a dramatic increase in motor vehicle insurance
premiums that can stay with a person for several years. It is easy to
see how one mistake can taint the rest of a person's life.
- Huntington-The Conway Office:
Were you or someone you love arrested for a DUI? Are you involved in a pending misdemeanor or felony case?
- Huntington-Mark Underwood:
If the police observe you driving erratically or violating traffic laws, they
are permitted to stop and question you for a DWI violation. If they suspect
that you are intoxicated, they can ask you to submit to various tests,
including a blood alcohol test.
- Huntington-Amy Levine:
If you have been contacted by the police or are accused of a crime,
whether a felony or a misdemeanor offense, you are allowed to defend
your rights in a court of law.
- Huntington-Robert Losey:
DUI/DWI (drunk driving, driving while under the influence of alcohol)
- Logan-Forester Law Office:
If you have been accused or arrested on a criminal charge, it is critical that you hire a criminal defense attorney right away. West Virginia criminal law is very complicated. If you don't have an experienced lawyer protecting your rights, you may loose them. Do not let this happen to you.
- Hurricaine
- Van Bibber, Wayne:
Many field sobriety tests could not be passed by drivers who are perfectly sober. If one of these strenuous exercises was not carried out in compliance with national standards, the entire DUI case against you could be dismissed.
Your breathalyzer test at the arrest scene must be conducted using the new disposable mouthpiece mandated by state law. If that was not the case, or if maintenance records for the breath device are missing, significant evidence could be thrown out.
- Marlton
- Martin Saffer:
If I get arrested for DUI after blowing into the machine and it showed
my BAC was over .08, should I just plea guilty? € No! It is very
unlikely you are going to gain any benefit by pleading guilty in your
case. You have a constitutional right to require the State to prove
that you are guilty beyond a reasonable doubt. There is nothing wrong
with exercising your rights and making the State do its job. € You have
zero chance to win your case if you plea guilty.
- Martinsburg
- Barrat, Robert:
* General practice of law includes:
o Criminal - misdemeanor and felony
o Domestic law including divorce, custody, child support, and adoptions
o Collections and foreclosures
o Civil lawsuits of all kinds
o DUI, DWI, Traffic Offenses
o Wills, deeds, closings
o Appeals to West Virginia Supreme Court and Fourth Circuit Court of Appeals
- Black, Eric:
* Criminal defense (felony and misdemeanor) DUI and DWI
* Divorce
* Custody
* Personal injury
* Wrongful death
* Civil litigation
- Mills and Wagner:
Drunk driving charges are serious criminal charges. You can lose your license, pay hefty fines, suffer
increased insurance premiums, and in some cases even be sentenced to jail time. An experienced DUI
defense lawyer can fight for your rights, freedom, and privileges. Whether you failed a breathalyzer
test or a field sobriety test, or if your blood alcohol content (BAC) was above 0.08 (presumed drunk),
or your blood alcohol level was above 0.07 (prima facie evidence of being drunk), you may still have a defense.
- Morgantown-Widmer-Eby & Associates:
DUI Ñ Protecting Your Driver's License
When charged with a DUI in West Virginia, you will have to deal with the criminal and civil aspects of your case. Criminally, you may face jail time, probation, fines and a mark on your criminal record if convicted of drunk driving. Civilly, you may lose your privilege to drive. Further, you may face civil suits from people who you may have injured while driving under the influence.
- Morgantown-Angotti & Straface:
There are two parts to the process of DUI matters. Administrative
hearings determine issues of license suspension, revocation, and other
DMV administrative matters. Criminal hearings determine if jail time,
fines, or other punishment is in order for the conduct you are being
tried for. In both situations, it is best to act quickly and contact a
West Virginia DUI attorney before your rights are lost. A failure to
act promptly can lead to the loss of your license without any further
action by prosecutors.
Whether you are headed for city court, or the magistrate court, the
more time your attorney has to work on your case, the better. Field
sobriety tests, breathalyzer tests, and other methods of blood alcohol
level determination are not always reliable. If mistakes were made by
police, your arrest may not have been valid.
- Morgantown-Sean Murphey:
The Scientific Nature of the HGN Test and the Admissibility of HGN
Evidence
Of all of the field sobriety tests used by police officers to determine
a driver's level of intoxication in DUI arrests, the Horizontal Gaze
Nystagmus (HGN) test is the most popular among law enforcement officers
for effectively determining evidence of a driver's blood-alcohol
concentration (BAC). HGN is an involuntary More...
Discovering Prior Convictions in DUI Prosecutions to Enhance a New
Charge
Almost all states increase a charge for driving while under the
influence of alcohol or drugs (DUI) from a misdemeanor to a felony when
a driver has had a certain number of prior DUI convictions.
- Moorefield-Sandra Mullenax Desbrow:
Chances are, if you have been charged with a criminal offense, it is
your first experience with the criminal justice system. You need an
experienced criminal defense attorney immediately. Statements made in
the early stages can have a critical impact on your criminal defense.
- Ripley
- Hayes, Morgan:
PROTECT YOUR RIGHTS!
- Union
- Bryan, John:
If you have been accused or charged with committing a crime in West Virginia, then you must act quickly to protect your rights. You should immediately contact a West Virginia criminal defense attorney...
- Weirton
- Galloway Law Offices:
Especially if you have been convicted of DUI in the past, the consequences of a drunk driving conviction can have a serious impact on your life. You are likely facing the threat of losing your driver's license, possibly going to jail, high fines and community service.
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