What Happens if You Refuse a Breathalyzer in West Virginia: PBT vs. Secondary Chemical Tests
In West Virginia, you can legally refuse the handheld breath test at the side of the road without losing your license. However, if you are arrested and refuse the official 'Secondary Chemical Test' (Intoxilyzer) at the police station, your license faces a mandatory 1-year revocation under Implied Consent laws unless contested in a court refusal review hearing.
During a traffic stop for a suspected DUI, police officers will use various tools to gather evidence against you. One of the most confusing aspects of a DUI arrest in West Virginia is understanding which breathalyzer you are legally required to take. Many drivers mistakenly believe that refusing any test will automatically protect them from a conviction, but the reality is much more complicated.
Refusing the wrong test triggers severe license revocation penalties that must be challenged directly in the court handling your DUI. Knowing the difference between the roadside test and the official station test is crucial. If you are accused of refusing a test and face a license revocation, we urge you to find an experienced West Virginia DUI attorney from our directory to help you challenge the refusal immediately.
Preliminary Breath Test (PBT) vs. Secondary Chemical Test
When an officer pulls you over, they may ask you to blow into a small, handheld device called a Preliminary Breath Test (PBT). Under West Virginia law, this test is used solely to help the officer establish probable cause for an arrest. You have the right to politely refuse the PBT, and refusing it will not automatically suspend your driver's license.
However, once you are officially arrested and transported to the police station or a local detachment like the West Virginia State Police, South Charleston, the rules change entirely. The officer will ask you to blow into a large desktop machine called the Intoxilyzer. This is known as the 'Secondary Chemical Test.' Refusing this official test triggers immediate and severe legal consequences.
West Virginia's Implied Consent Laws Explained
By simply holding a West Virginia driver's license and driving on state roads, you have already given your 'implied consent' to submit to a chemical test if lawfully arrested for a DUI. This is governed by W. Va. Code § 17C-5-4. You cannot retroactively take back this consent without facing penalties.
Criminal vs. Administrative Consequences
Refusing the Intoxilyzer does not automatically mean you will go to jail-the refusal itself is not a separate criminal charge in West Virginia. However, your refusal will be used against you by the prosecutor in Magistrate Court to argue consciousness of guilt. More importantly, the statutory consequences for your license are severe. Under W. Va. Code § 17C-5-7 and W. Va. Code § 17C-5-7a, an alleged refusal results in a 1-year driver's license revocation or a 1-year ignition interlock requirement, unless you successfully challenge the officer's grounds at a refusal review hearing.
How to Challenge the Refusal Enhancement
Just because you refused the test does not mean your license is automatically gone forever. Before you can be penalized for a refusal, the police officer is legally required to read you a very specific warning from Form DMV-314, West Virginia, Division of Motor Vehicles, Implied Consent Statement. They must explain exactly what will happen to your license if you say no.
If the officer forgot to read this form, rushed through it so you couldn't understand, or gave you incorrect legal advice, an attorney can challenge the refusal. Case law such as Butcher v. Miller, 212 W. Va. 13 (WV Supreme Court of Appeals 2002) demonstrates that if the police fail to properly inform a driver of the consequences under the Implied Consent law, the resulting license suspension can be entirely thrown out.
| Type of Breathalyzer | Location | Penalty for Refusing |
|---|---|---|
| Preliminary Breath Test (PBT) | Side of the road | No automatic license suspension. |
| Secondary Chemical Test (Intoxilyzer) | Police Station / Jail | 1-Year License Revocation (or interlock) unless challenged in court. |
How Much Does it Cost to Fight a Refusal?
Defending a DUI with a refusal enhancement requires an attorney to litigate both the criminal charge and the refusal review hearing in court. Typical legal fees range from $2,500 to $5,000 for a first offense. If your license is revoked and you choose the interlock program to keep driving, you will also have to pay a $75 to $100 installation fee and roughly $80 to $100 per month for the device rental.
Timelines You Must Know
Under W. Va. Code § 17C-5-7a, you do not request a refusal hearing through the DMV; instead, the Refusal Review Hearing is conducted directly in the Magistrate Court handling your DUI case. The court will inform you of this right at your initial appearance, and you must file a formal request for a refusal review hearing within 30 days of that first court appearance. If you fail to file your request within 30 days of your first appearance, the court will automatically enter an order confirming the refusal, directing the West Virginia Division of Motor Vehicles, Charleston to revoke your license.
Frequently Asked Questions (FAQ)
Can I demand a blood test instead of the breathalyzer?
In West Virginia, the police officer gets to choose whether to administer a breath, blood, or urine test. If you refuse the breath test they offer and demand a blood test instead, it is still legally considered a refusal.
What if I tried to blow but the machine didn't register it?
This is called a 'constructive refusal.' If you do not blow hard enough or seal your lips properly, the officer will mark it as a refusal. An attorney can argue you had a medical condition, like asthma, that prevented you from providing a sufficient sample.
Can I speak to a lawyer before deciding to take the test?
No. In West Virginia, you do not have the constitutional right to consult with an attorney before deciding whether to submit to the secondary chemical breath test at the police station.
If my DUI is dismissed in court, do I get my license back?
Under W. Va. Code § 17C-5-7a, refusal proceedings are decided directly by the criminal court. If your attorney requests a Refusal Review Hearing and the magistrate finds that the officer lacked probable cause or failed to give the mandatory statutory warning, the court will find the refusal unsubstantiated, preventing the DMV from revoking your license.
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