A person is guilty of a DUI in West Virginia if he or she (1) operates a vehicle while he or she is under the influence of any controlled substance or under the influence of any other drug, (2) is under the combined influence of alcohol and any controlled substance or any other drug, (3) is an habitual user of narcotic drugs and drives a vehicle, (4) knowingly permits his or her vehicle to be driven by any other person who is under the influence of any controlled substance, any other drug, or the combined influence of alcohol and any controlled substance or any other drug, OR (5) knowingly permits his or her vehicle to be driven by any other person who is an habitual user of narcotic drugs W. Va. Code Ann. § 17C-5-2. (West 2010). Legislation enacted in 2017, SB 386, imposes per se traffic safety limits criminalizing the operation of a vehicle by state-registered medical cannabis patients if they posses trace amounts of THC (3 ng/ml of THC or more) in their blood.

Implied Consent

In West Virginia, a person suspected of driving while under the influence of alcohol has, by virtue of driving in the state, consented to provide a sample of breath, blood, or urine to police for testing in order to determine the amount of alcohol in his or her system. However, implied consent law does not require that an individual suspected of driving under the influence of marijuana or controlled substance submit to a chemical test in order to screen for the presence of drugs in his or her body. Ergo, in West Virginia chemical sample from an accused person should only be given on a voluntarily basis, and no penalties or sanctions apply for refusal to submit to chemical testing for drugs.

Penalties

• First offense misdemeanor - imprisonment for up to 6 months; fine of not less than $100, nor more than $5,000; 6 months (90 days mandatory) license revocation Id. § 17C-5-2 (d)(2).
• Second offense (w/i 10 years) misdemeanor – imprisonment for not less than 6 months, nor more than 1 year; fine of not less than $1,000 nor more than $3,000; 10 years (5 years mandatory) license revocation Id. § 17C-5-2(k).
• Third and subsequent offense (w/i 10 years) felony – imprisonment of not less than 1 year nor more than 3 years; fine of not less than $3,000, nor more than $5,000; life (10 years mandatory) license revocation. Id. § 17C-5-2(l).

NOTE: all types of DUI convictions will be considered previous convictions.

Other Penalties & Penalty Enhancers

• If passengers are under 16 misdemeanor - imprisonment of not less than 2 days, nor more than 12 months, fine of not less than $200, nor more than $1000. W. Va. Code, § 17C-5-2(j)(1-2).
• Driving while an habitual user of narcotic drugs misdemeanor –imprisonment of not less than 1 day, nor more than 6 months, fine: not less than $100, nor more than $500. W. Va. Code, § 17C-5-2 (f).
• Knowingly permitting vehicle to be driven any other person who is under the influence of any controlled substance or is an habitual user of narcotic drugs misdemeanor – imprisonment for not more than 6 months, fine of not less than $100, nor more than $500. W. Va. Code, § 17C-5-2(g)(1)-(2); W. Va. Code, § 17C-5-2 (h).

Sobriety Checkpoints

West Virginia allows law enforcement officials to conduct sobriety checkpoints under both state and federal constitutions.

Carte v. Cline, 460 S.E.2d 48 (W.Va. 1995). A plan relying on non-discriminatory procedures is required in order to conduct a sobriety checkpoint.

Case Law

Cain v. West Virginia Div. of Motor Vehicles, 694 S.E.2d 309 (W. Va., 2010) – "All that is required to seek a license revocation for driving under the influence of alcohol is that the arresting officer have "reasonable grounds to believe" that the defendant committed the offense of DUI. Rather than requiring an arresting officer to witness a motor vehicle in the process of being driven, the statute requires only that the observations of the arresting officer establish a reasonable basis for concluding that the defendant had operated a motor vehicle upon a public street in an intoxicated state."