I am often asked whether refusing to provide a breath sample during a DUI investigation is a good idea. In answering this question, it is important to distinguish between the preliminary breath test and the secondary breath test in West Virginia. Both tests carry different evidentiary value in a court of law and can have a significant impact on the outcome of your case in West Virginia.
The preliminary breath test is the breath test administered on the roadside by an investigating officer using a hand held device. The result of that test cannot be used for enhancement purposes. Also, refusing that test in West Virginia does not trigger an administrative license revocation.
Unlike the preliminary breath test, the secondary breath test is administered at the police station using a larger, stationary machine which requires the input of a driver’s information prior to testing. This device is often referred to as the “magic box” in West Virginia because of how secretive the manufacturer has been with disclosing how this machine actually processes data.
Refusing the secondary breath test can result in enhanced penalties at the West Virginia Division of Motor Vehicles, which include a longer period of revocation and additional participation in the Interlock Program. Recently, the West Virginia Legislature passed legislation making drivers ineligible for the Deferral Program if the driver refused the secondary breath test.
A driver who provides a breath sample over the aggravated BAC level above .15 can still participate in the Deferral Program if the prosecuting attorney is willing to reduce the charge to non-aggravated DUI. It is critical to contact an experienced DUI lawyer if you have been charged with DUI in West Virginia. This is especially true if you provide a breath sample above .15.
The only real advantage to refusing a secondary breath test is if you believe that your BAC will be above .15 and you absolutely do not want to participate in the Interlock Program. Currently, Interlock is not mandatory for people who refuse a secondary breath test. So, you can avoid the Interlock Program by refusing the secondary breath test. However, the penalty is so significant that most drivers are better served by providing a breath sample.
If you have been arrested for DUI in West Virginia and the arresting officer requested that you provide a breath sample, it is critical that you reach out to a DUI lawyer in West Virginia right away for a consultation.